{"id": "115651329", "text": "REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 92/2015 JAGE RAM & ORS. ..Appellants Versus STATE OF HARYANA ..Respondent J U D G M E N T R. BANUMATHI, J. This appeal is preferred against the judgment dated 19.8.2011 passed by the High Court of Punjab and Haryana in Criminal Appeal No.181 SB of 2000, whereby the High Court partly allowed the appeal filed by the appellants thereby confirming the conviction of the appellants with certain modifications. 2. Briefly stated, case of the prosecution is that on the fateful day i.e. 18.11.1994, at about 8.00 A.M. in the morning the complainant Jagdish (PW-5) along with his two sons namely Sukhbir and Mange Ram (PW-6) were busy in cutting pullas (reeds) from the dola of their field. At that time, Jage Ram (A-1) and his sons Rajbir Singh @ Raju (A-2), Rakesh (A-3) and Madan (A-4) armed with jaily, pharsi and lathis respectively, entered the land where the complainant was working with his sons and asked them not to cut the pullas as it was jointly held by both the parties. Wordy altercations ensued between the parties and Jage Ram insisted that he would take away the entire pullas. In the fight, the accused persons started inflicting injuries to the complainant, and his sons Rajbir @ Raju (A-2) gave a pharsi blow on the head of Sukhbir, Jage Ram (A-1) caused injury to Jagdish (PW-5) with two jaily blows. Additionally, Madan and Rakesh attacked the complainant with lathi blows on shoulder and left elbow respectively and caused several other injuries to the complainant party. Jagdish and his injured sons raised alarm, hearing which Rajesh and Usha came to rescue them and on seeing them, the accused persons fled away. 3. The injured witnesses were taken to the Primary Health Centre, Taoru where Dr. Pardeep Kumar, Medical Officer, medically examined the injured persons. Injured Sukhbir was vomiting in the hospital and later on he was referred to General Hospital, Gurgaon as his condition deteriorated. A CT scan disclosed that large extra-dural haematoma was found in the frontal region with mass effect and Sukhbir needed urgent surgery and he was operated upon and the large extra-dural haematoma was removed. Dr. Pardeep Kumar (PW-2) also examined the other injured persons, PW 5-Jagdish and PW 6- Mange Ram. 4. Statement of Jagdish was recorded, based on which F.I.R. was registered at Police Station Taoru, Gurgaon under Sections 323, 324, 325 and 307 read with Section 34 IPC. PW 8-Ramesh Kumar (ASI) had taken up the investigation. He examined the witnesses and after completion of investigation, challan was filed under Sections 307, 325, 324 read with Section 34 IPC. In the trial court, prosecution examined nine witnesses including Jagdish-PW5, Mange Ram-PW6 and Dr. Prem Kumar-PW2 and Dr. HiIol Kanti Pal-PW9, Neuro Surgeon, PW8-investigating officer and other witnesses. The accused were examined under Section 313 Cr.P.C. about the incriminating evidence and circumstances. First accused Jage Ram pleaded that on the date of occurrence-complainant party Jagdish and his sons Mange Ram and Sukhbir forcibly trespassed into the land belonging to the accused and attempted to forcibly cut the pullas. Jagdish further claims that he along with Rakesh caused injuries to the complainant party in exercise of right of private defence of property. He has denied that Rajesh and Usha had seen the incident. Raju (A-2) and Madan (A-3) stated that they were not present on the spot and they have been falsely implicated. Rakesh (A-4) adopted the stand of his father Jage Ram. 5. Upon consideration of oral and documentary evidence, the learned Additional Sessions Judge vide judgment dated 17.2.2000 convicted all the accused persons under Sections 307 and 325 IPC and sentenced them to undergo rigorous imprisonment for five years and one year respectively and a fine of Rs. 500/- each with default clause. Aggrieved by the said judgment, the accused-appellants filed criminal appeal before the High Court of Punjab and Haryana. The High Court vide impugned judgment dated 19.8.2011 modified the judgment of the trial court thereby convicted Jage Ram (A-1) under Section 325 IPC and sentenced him to undergo rigorous imprisonment for one year, convicted second accused Rajbir @ Raju under Section 307 IPC and imposed sentence of imprisonment for five years as well the fine of Rs.500/- was confirmed by the High Court. Sentence under Section 325 IPC (two counts) was modified as the sentence under Section 323 IPC and he was sentenced to undergo six months rigorous imprisonment. Both the sentences were ordered to run concurrently. High Court modified the sentence of Madan (A-3) Rakesh (A-4) under Section 323 IPC and sentenced them to undergo rigorous imprisonment for six months (two counts) respectively. In this appeal, the appellants assail the correctness of the impugned judgment. 6. Ms. Vibha Datta Makhija, learned Senior Counsel appearing for the appellants contended that the evidence of the witnesses suffers from material discrepancy and is self-contradictory. It was submitted that injured witness Sukhbir was not examined in the court and neither CT Scan nor x-ray nor operational notes of Sukhbir were produced before the court and in the absence of such material evidence, courts below erred in convicting the second accused under Section 307 IPC. Additionally, the learned counsel contended that the defence plea of private defence was not considered by the courts below in proper perspective. 7. Per contra, learned counsel appearing for the respondent-State contended that the evidence of all the witnesses satisfactorily establishes the overt act of the accused persons and Jagdish (PW-5) and Mange Ram (PW- 6) being the injured witnesses, the veracity of these witnesses cannot be doubted. It was submitted that the medical evidence sufficiently corroborated the oral evidence and the prosecution has established the intention of the 2nd accused in causing attempt to commit murder of Sukhbir and in appreciation of the evidence, courts below recorded concurrent findings convicting the second accused under Section 307 IPC and the same warrants no interference. 8. We have carefully considered the rival contentions and gone through the impugned judgment and perused the materials on record. 9. As it emerges from the evidence, complainant Jagdish (PW-5) and his two sons Sukhbir and Mange Ram were cutting pullas. The accused party went there and asked them not to cut the pullas. In the wordy altercation, second accused Rajbir @ Raju gave pharsi blows on the head of Sukhbir. PWs 5 & 6 have clearly spoken about the overt act of the accused that A-1 Jage Ram attacked and caused injury to PW-5 Jagdish with jaily blows and that second accused Rajbir @ Raju attacked on the head of Sukhbir with pharsi. They have also stated that Madan and Rakesh caused injuries to PW5-Jagdish with lathi on shoulder and left elbow respectively. PW 2- Dr. Pardeep Kumar in his evidence stated that he has examined PWs 5 and 6 and noted the injuries on the body of PWs 5 and 6 and issued wound certificates. Evidence of PWs 5 and 6 is amply corroborated by medical evidence. PWs 5 and 6 being injured witnesses, their evidence is entitled to great weight. Cogent and convincing grounds are required to discard the evidence of injured witnesses. In the light of the fact that PWs 5 and 6 were injured witnesses, courts below tested their evidence for its credibility and recorded concurrent findings that PWs 5 and 6 are trustworthy witnesses. We find no reason to take a different view. 10. Appellants have raised the contention that the prosecution failed to adduce evidence that A-2 Rajbir attempted to commit murder of Sukhbir. It was submitted that injured person Sukhbir was neither examined nor medical evidence like CT Scan, x-ray and operational notes and Sukhbir were produced to corroborate the oral evidence and while so courts below erred in convicting second accused Rajbir @ Raju under Section 307 IPC. 11. Dr. Pardeep Kumar-PW-2, who examined Sukhbir found during his medico-legal examination a lacerated wound in the middle of the top of the skull. Injured-Sukhkbir was found vomiting in the hospital and he was examined by a Neuro Surgeon Dr. Hilol Kanti Pal (PW-9) of Safdarjung Hospital, Delhi on 19.11.1994, i.e. the day after the incident. PW-9 has stated that Sukhbir was unconscious since 2.00 P.M. on 18.11.1994 and was deeply comatose with irregularity of pupils and a laceration was diagnosed on the right front parietal region. Further, PW-9 has stated that during the CT scan, it was revealed that a large extra-dural haemotoma was present in the frontal region with mass effect and to avoid further deterioration of his condition, he was operated upon by frontal trephine craniopmy an haemotoma measuring about 125 ml was evacuated. PW-9 stated that had not the operation been conducted on Sukhbir and had not the extra- dural haemotoma removed by operation urgently, the head injury caused to Sukhbir would have caused his death. As noted by the High Court, it is thus brought on evidence that had not surgical assistance been given to Sukhbir, he would have definitely died. 12. For the purpose of conviction under Section 307 IPC, prosecution has to establish (i) the intention to commit murder and (ii) the act done by the accused. The burden is on the prosecution that accused had attempted to commit the murder of the prosecution witness. Whether the accused person intended to commit murder of another person would depend upon the facts and circumstances of each case. To justify a conviction under Section 307 IPC, it is not essential that fatal injury capable of causing death should have been caused. Although the nature of injury actually caused may be of assistance in coming to a finding as to the intention of the accused, such intention may also be adduced from other circumstances. The intention of the accused is to be gathered from the circumstances like the nature of the weapon used, words used by the accused at the time of the incident, motive of the accused, parts of the body where the injury was caused and the nature of injury and severity of the blows given etc. 13. In the case of State of M.P. vs. Kashiram & Ors.[1], the scope of intention for attracting conviction under Section 307 IPC was elaborated and it was held as under:- \"13. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The section makes a distinction between the act of the accused and its result, if any. The court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. Therefore, an accused charged under Section 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt. [pic] 14. This position was highlighted in State of Maharashtra v. Balram Bama Patil, (1983) 2 SCC 28, Girija Shanker v. State of U.P.(2004) 3 SCC 793 and R. Prakash v. State of Karnataka (2004) 9 SCC 27. * * * 16. Whether there was intention to kill or knowledge that death will be caused is a question of fact and would depend on the facts of a given case. The circumstances that the injury inflicted by the accused was simple or minor will not by itself rule out application of Section 307 IPC. The determinative question is the intention or knowledge, as the case may be, and not the nature of the injury.\" See State of M.P. v. Saleem (2005) 5 SCC 554 pp. 559-60, paras 11-14 and 16. 13. \"6. Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed, etc. This position was illuminatingly stated by this Court in Sevaka Perumal v. State of T.N.(1991) 3 SCC 471.\" 14. Having regard to the weapon used for causing the head injuries to Sukhbir, nature of injures, situs of the injury and the severity of the blows, courts below recorded concurrent findings convicting the 2nd appellant under Section 307 IPC. In our considered view, the conviction of the second appellant Rajbir @ Raju under Section 307 IPC is unassailable. 15. Learned counsel for the appellants contended that the second appellant is in custody for more than three years and since the occurrence was in the year 1994, prayed for reduction of the sentence imposed on the second appellant to the period already undergone. Placing reliance upon the judgment of this Court in Hari Singh vs. Sukhbir Singh & Ors[2]., learned counsel for the appellants additionally submitted that in terms of Section 357 (3) Cr.P.C. that the compensation may be awarded to the victim and the sentence be modified to the period already undergone. 16. For the conviction under Section 307 IPC, courts below imposed upon the 2nd appellant rigorous imprisonment of five years, while imposing punishment, courts have an obligation to award appropriate punishment. Question of awarding sentence is a matter of discretion and the same has to be exercised by the courts taking into consideration all the relevant circumstances. What sentence would meet the ends of justice would depend upon the facts and circumstances of each case and the courts must keep in mind the gravity of the offence, motive for the crime, nature of the offence and all other attendant circumstances. Vide State of M.P. vs. Bablu Natt[3]; Alister Anthony Pareira vs. State of Maharashtra[4] and Soman vs. State of Kerala[5]. 17. In the light of the above, considering the case in hand, the occurrence was of the year 1994 when the complainant party was cutting pullas, the accused asked them not to cut the pullas which resulted in the wordy altercation. In the heat of passion, the accused have caused injuries to the complainant party. The second accused Rajbir @ Raju is in custody. He surrendered on 5.1.2012 and is stated to be in custody since then, for more than three years. Having regard to the facts and circumstances of the case, in our considered view, the period of sentence of five years may be reduced to three years apart from directing the second appellant Rajbir @ Raju to pay substantial compensation to injured- Sukhbir. 18. As noticed above, injured-Sukhbir sustained grievous head injuries and was deeply comatose and was in a state of shock and trauma. Learned counsel for the injured-witness submitted that for quite some time injured-Sukhbir was unconscious and thereafter suffering from mental trauma. Having regard to the nature of injuries sustained by Sukhbir and the period of treatment and other circumstances, we are of the view that, it would be appropriate to direct second appellant-accused Rajbir @ Raju to pay Rs.7,50,000/- as compensation to the injured-Sukhbir. When the matter came up for hearing on 14.10.2014, learned counsel for the appellants informed the Court that he had offered Rs.5,00,000/- by way of demand draft towards compensation to the injured-Sukhbir in the presence of the Sarpanch of the village which he has refused to receive the same. The said amount of Rs.5,00,000/- is now kept in fixed deposit in the Registry of this Court. 19. For inflicting blows on PW-5 Jagidsh with jaily A-1 Jage Ram was convicted under Section 325 IPC and sentenced to undergo rigorous imprisonment for one year. A-3 and A-4 have also given lathis blows to PW- 5 and were convicted under Section 323 IPC and sentenced to undergo rigorous imprisonment for three months by the High Court. Having regard to the fact that the occurrence was of the year 1994, considering the other facts and circumstances of the case, the sentence of imprisonment imposed on Jage Ram (A-1), Madan (A-3) and Rakesh (A-4) is reduced to the period already undergone by them. 20. The conviction of A-1 under Section 325 IPC, A-3 and A-4 under Section 323 IPC is confirmed and the sentence is reduced to the period already undergone by each of them. The conviction of second accused Rajbir @ Raju under Section 307 IPC is confirmed and the sentence of imprisonment of five years is reduced to the period already undergone and additionally the second accused shall pay a compensation of Rs.7,50,000/- to the injured witness-Sukhbir. Compensation amount of Rs.5,00,000/- deposited in this Court by the 2nd appellant shall be paid to the injured witness-Sukhbir. The second accused Rajbir @ Raju shall deposit the balance compensation amount of Rs.2,50,000/- before the trial court within three months from the date of this judgment and on such deposit, the same shall also be paid to the injured witness-Sukhbir. On failure to deposit the balance compensation, the second appellant Rajbir @ Raju shall undergo default sentence of one year. 21. The appeal is allowed to the above said extent. Second appellant Rajbir @ Raju is ordered to be released forthwith if not required in any other case. Bail bonds of accused A1, A3 and A4 shall stand discharged. ...........................J. (V. Gopala Gowda) ...........................J. (R. Banumathi) New Delhi;January 28, 2015 ITEM NO.1A-For JUDGMENT COURT NO.12 SECTION IIB S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Criminal Appeal No(s). 92/2015 arising from SLP(Crl.) No. 488/2012 JAGE RAM & ORS. Appellant(s) VERSUS STATE OF HARYANA & ANR. Respondent(s) Date : 28/01/2015 This appeal was called on for pronouncement of JUDGMENT today. For Appellant(s) Mr. Gagan Gupta,Adv. For Respondent(s) Mr. Ajay Bansal, AAG Mr. Kamal Mohan Gupta,Adv. Mr. Gaurav Yadav, Adv. Mr. Akshat Goel,Adv. Hon'ble Mrs. Justice R. Banumathi pronounced the judgment of the Bench comprising of Hon'ble Mr. Justice V. Gopala Gowda and Hon'ble Mrs. Justice R. Banumathi. The appeal is allowed in terms of the signed reportable judgment. Second appellant Rajbir @ Raju is ordered to be released forthwith if not required in any other case. Bail bonds of accused A1, A3 and A4 shall stand discharged. (VINOD KR. JHA) (MALA KUMARI SHARMA) COURT MASTER COURT MASTER (Signed Reportable judgment is placed on the file) ----------------------- [1] [2] AIR 2009 SC 1642 = (2009) 4 SCC 26 [3] [4] (1988) 4 SCC 551 [5] [6] (2009) 2 SCC 272 [7] [8] (2012) 2 SCC 648 [9] [10] (2013) 11 SCC 382", "spans": [{"start": 137, "end": 153, "label": "RESP"}, {"start": 252, "end": 261, "label": "DATE"}, {"start": 276, "end": 308, "label": "COURT"}, {"start": 359, "end": 369, "label": "COURT"}, {"start": 575, "end": 585, "label": "DATE"}, {"start": 637, "end": 644, "label": "WIT"}, {"start": 695, "end": 704, "label": "WIT"}, {"start": 792, "end": 800, "label": "APP"}, {"start": 1122, "end": 1130, "label": "APP"}, {"start": 1341, "end": 1349, "label": "APP"}, {"start": 1373, "end": 1380, "label": "WIT"}, {"start": 1583, "end": 1590, "label": "WIT"}, {"start": 1809, "end": 1822, "label": "WIT"}, {"start": 2229, "end": 2242, "label": "WIT"}, {"start": 2296, "end": 2303, "label": "WIT"}, {"start": 2314, "end": 2323, 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{"id": "37849282", "text": "1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.2998 OF 2010 THE MANAGING DIRECTOR (SHRI GRISH BATRA) M/S.PADMINI INFRASTRUCTURE DEVELOPERS (I) LTD. \u2026 APPELLANT(S) VERSUS THE GENERAL SECRETARY (SHRI AMOL MAHAPATRA) ROYAL GARDEN RESDIENTS WELFARE ASSOCIATION \u2026 RESPONDENT(S) WITH CIVIL APPEAL NO. 4085 OF 2010 JUDGMENT V. Ramasubramanian, J. 1. Both the consumer (who was the complainant) as well as the opposite party before the National Consumer Disputes Redressal Commission, have come up with these appeals, the Signature Not Verified Digitally signed by Jayant Kumar Arora Date: 2021.09.28 former aggrieved by the rejection of some of the reliefs sought and 16:36:46 IST Reason: the latter, challenging the reliefs granted in favour of the consumer. 2. We have heard the learned counsel appearing on both sides. 3. A residential apartment complex was promoted by M/s Padmini Infrastructure Developers (India) Ltd. (hereinafter referred to as \u2018the opposite party\u2019), on a land allotted by New Okhla Development Authority (\u2018NOIDA\u2019 for short). It appears that the opposite party constructed about 282 apartments and offered them for sale. The purchasers were put in possession during the period from 1998\u00ad2001, but the completion certificate itself was issued only in December, 2001. 4. The purchasers of flats formed themselves into an association known as Royale Garden Residents Welfare Association and got it registered on 30.09.2003 under the Societies Registration Act, 1860. 5. The Residents Welfare Association entered into an agreement on 15.11.2003 with the opposite party for taking over the maintenance of the apartment complex. Thereafter, the Residents Welfare Association ((hereinafter referred to as the \u2018complainant\u2019), filed a consumer complaint in Complaint No.9 of 2007 before the National Consumer Disputes Redressal Commission. 6. The reliefs sought by the complainant before the National Commission were as follows:\u00ad \u201c1. to pay the monthly maintenance charges for unsold flats amounting to Rs. 9,05,810/\u00ad 2. to complete the water softening plant and make it operational. 3. to complete fire fighting equipments and make the same operational and to obtain safe working certificate from Fire Safety Department of NOIDA and handover the same to the Complainant. 4. to furnish and equip a second health club for which space is available in half portion of basement of Tower Blue Heaven\u00ad2. 5. to complete a second swimming pool and get cement plastered and white washed the stilts. 6. to provide furnished space for a, Club House in the basement of Eden Tower which is existing but locked. 7. to get the rented portion of the terrace (roof) vacated meant for the resident of Tower Eden of the Complainant rented out by the Opposite Party to HUTCH (P) Limited and earned rent after on 15.11.2003 to be returned to RWA with 24% interest. 8. not to sell or rent out the remaining flats about 45 till the facilities mentioned above are provided to the Complainant. 9. to direct the OP not be sell stilt and open car parking to future or present purchasers. 10. to pay the cost to the Complaint and damages for harassment mental torture, agony etc. caused to the Complainant by the OP. 11. to pass any other or further orders which this August Commission deems fit in the circumstances of the case to meet the ends of justice.\u201d 7. The complaint was resisted by the opposite party both on merits and on the ground of limitation. The opposite party also claimed that the Agreement dated 15.11.2003, entered into with the complainant contained an arbitration clause and that whatever facilities/amenities were promised at the time of promotion of the complex, have been put in place. 8. The National Commission by its interim order dated 04.06.2008, appointed a local Commissioner, to inspect the systems/facilities relatable to the reliefs claimed in prayer clause nos. 2 to 6 of the complaint and to submit a report. The said Commissioner submitted a report on 08.07.2008 after making a local inspection, in the presence of the representatives of both the parties. 9. Accepting the report of the local Commissioner and overruling the contention of the opposite party regarding limitation, the National Commission allowed the complaint partly by an order dated 05.01.2010. The operative part of the order of the Consumer Commission reads as follows: \u201cConsequently, complaint is partly allowed with cost of Rs. 25,000/\u00ad with direction to the opposite party to make the systems/facilities as at Sl. Nos. 2,3,4,5 and 6 of the prayer clause of the complaint operational/complete and to obtain and supply fire safety certificate of the complex to the complainant association within ten weeks from today. The opposite party will submit a report within two weeks thereafter from an independent Architect certifying that the systems/facilities in question have been fully made operational/complete by the opposite party. In the event of not making operational/complete the systems/facilities referred to above within the time allowed, the opposite party will pay through a demand draft the costs thereof as mentioned in aforesaid report dated 8.07.2008 within two weeks from after the expiry of 12 weeks time to the complainant association.\u201d 10. Aggrieved by the order of the National Commission, the opposite party (builder), has come up with one appeal in C.A.No.2998 of 2010. Aggrieved by the refusal of the National Commission to grant the reliefs as per prayer clause nos. 1, 7, 8, 9 & 10, the consumer\u00adcomplainant has come up with another appeal in C.A.No.4085 of 2010. 11. As observed earlier, the consumer complaint was contested by the opposite party both on merits and on the ground of limitation. Since it is easy to deal with the objection relating to limitation without much ado, we shall take it up first. 12. Section 24A(1) of the Consumer Protection Act, 1986 prescribes a period of limitation of two years from the date on which the cause of action has arisen for the admission of a complaint, by the District Forum, State Commission or the National Commission. In the case on hand, the opposite party handed over the work of maintenance of the complex to the complainant, under an Agreement dated 15.11.2003. As seen from the preamble to the Agreement, the Agreement covered common essential services such as generators, lifts, tube\u00adwell, water softening plant, electric substation, cabling, fire fighting system, pipelines, swimming pool, health and fitness centre, parking, club\u00adhouse, water supply, drainage/sewerage system, horticulture, water tanks/pumps and lawns/parks. 13. But different timelines were prescribed under the said Agreement for different obligations still remaining to be performed by the opposite party, towards the purchasers of flats. The last of such timeline was indicated to be 31.03.2004. 14. There were specific obligations to be performed by the opposite party under the said Agreement, in relation to certain services. It may be useful in this regard to extract clauses 13, 14 and 19 of the Agreement as follows:\u00ad \u201c13. The FIRST PARTY shall bear the contractual obligations of lift, generator, health club and equipments fitted at swimming pool. FIRST PARTY shall also bear the maintenance of these equipments till these contracts are concluded. FIRST PARTY shall bear any/all expenses on maintenance/repair/replacement of these equipments. 14. To FIRST PARTY shall make the softening plant and tube will in working condition and hand it over to SECOND PARTY separately on or before 31.1.2004. The FIRST PARTY shall also bring the fire fighting Equipments/generators in working condition and hand it over to the SECOND PARTY separately on or before 31.12.2003. \u2026 \u2026 \u2026 19. The FIRST PARTY shall construct the second Health Club and second swimming pool on or before 31.3.2004 and provide space for Club house in one of the basements for the residents as promised and assured at the time of selling the apartments on or before 31.12.2003.\u201d 15. Therefore, the cause of action for the complaint, as per the above clauses continued even after the date of the Agreement namely 15.11.2003. 16. In the affidavit filed by the local Manager of the opposite party by way of evidence, it was admitted that certain works in relation to fire\u00adfighting equipment continued up to the year 2005. In fact, the opposite party filed certain bills, which were dated 27.02.2005, 22.04.2005, 01.05.2005, 19.07.2005, 29.10.2005 and 12.12.2005, to show that the opposite party was honest and diligent in carrying out their obligations. 17. The affidavit in evidence filed by the opposite party and the aforesaid bills establish that the cause of action continued at least till December, 2005. The complaint before the National Commission was filed in February, 2007. Therefore, the National Commission was right in rejecting the objection relating to limitation. 18. Coming to the merits, let us first take up the challenge to correctness of the reliefs granted by the National Commission in favour of the complainant, as the appeal filed by the opposite party appears to be first in point of time. 19. The reliefs granted by the National Consumer Commission related to water softening plant, fire\u00adfighting, second health club equipment, second swimming pool and space for club house in Eden Tower. These reliefs were granted by the National Commission on the basis of the Report of the local Commissioner. 20. It appears that opposite party filed objections to the report of the local Commissioner, contending inter alia, (i) that the water softening plant was fully functional when the complex was taken over by the complainant association; (ii) that any deficiency or defect relating to the fire\u00adfighting equipment is wholly attributable to the lack of maintenance and wrongful practices adopted by the complainant association; (iii) that they are not contractually liable to provide a second health club and the finding of the local Commissioner that one of the health clubs is fully functional and in good condition has to be accepted; and (iv) that the second swimming pool was completed and made operational by the opposite party, but what remained was the filling up of water after filtration, which was the job of the maintenance agency. 21. Interestingly the affidavit of objections to the Report of the local Commissioner, filed on behalf of the opposite party on 06.08.2008, covered only the findings relating to, (i) water softening plant; (ii) fire\u00adfighting equipment; (iii) second health club; and (iv) second swimming pool, but did not cover the finding relating to the liability of the opposite party to provide furnished space for a club house in the basement of Eden Tower (relatable to relief no.6 of the complaint). However, the affidavit covered the claim of the complainant for maintenance charges, though the local Commissioner had nothing to do with the same. 22. The Commissioner appointed by the National Commission was an architect by name Amit Bahl. When he carried out the inspection, 4 persons representing the opposite party, which included the advocate of the opposite party and the deponent to the affidavit of objections were present. The architect examined each one of the items and not only found that they were not operational on date but also found, (i) that the equipment for the water softening plant was incomplete, ineffective and inadequate; (ii) that the fire\u00adfighting equipments were not in operation due to incomplete commissioning of the system as a whole and that even the fire safety certificate dated 05.11.2001 noted down the same; (iii) that while the first health club in the basement of the Tower Blue Heaven\u00ad2 was fully furnished and functional, the second health club was not adequately furnished though the civil works are complete; (iv) that the second swimming pool was not complete and operational, as the filtration plant was non\u00ad functional and the pump was removed after installation and that even the change rooms and showers have not been provided for; and (v) that in so far as the club house in the basement of Eden tower is concerned it was kept under lock and key by the opposite party and found to have been used as a store for keeping various building materials. 23. In the light of the aforesaid findings by an independent architect appointed by the National Commission it is not open to the opposite party to create a fa\u00e7ade as though all essential services and amenities were handed over in a fully functional state. If all the aforesaid services had been handed over in a fully functional state, the opposite party should have taken an acknowledgment in writing from the complainant. In the alternative, the opposite party should have insisted upon an appropriate provision in the Agreement dated 15.11.2003. 24. As noted by the Commissioner, even the fire safety certificate dated 05.11.2001 states that though the majority of the equipment have been satisfactorily installed, some equipment have been removed and stored for security purposes and that the inference therefore is that the system never got commissioned. 25. It is not impossible for an experienced architect to find out whether the condition in which the aforesaid amenities and services were found on the date of the inspection, was entirely due to lack of maintenance or due to non\u00adcommissioning or incomplete commissioning. 26. As noted by the National Commission, the affidavit of objections filed on behalf of the opposite party to the Report of the local Commissioner does not deal with the cost of estimates indicated by the Commissioner in his Report. In addition, the affidavit of objections does not even deal with the finding relating to the club house at Eden Tower, said to have been kept under lock and key by the opposite party for storing building materials. The very fact that at the time of inspection by the local Commissioner, the possession of the club house in Eden Tower was with the opposite party, goes to show that the opposite party was still retaining control of at least some part or certain services in the complex, perhaps due to the fact that there were about 45 unsold flats. 27. In view of the above, we are not convinced that the reliefs granted by the National commission in favour of the complainant warrant any interference. Therefore, the appeal in C.A. No.2998 of 2010 is liable to be dismissed. 28. But before we do that, we should take note of the fact that as per the operative portion of the order of the National Commission (which we have extracted elsewhere) the opposite party is obliged to make the systems/facilities at prayer clauses 2, 3, 4, 5 & 6 of the complaint, fully operational/complete and they are also obliged to obtain a certificate of completion from an independent architect. If the opposite party failed to do so within the time stipulated by the National Commission, the opposite party was obliged to pay the cost as estimated by the Commissioner in his Report dated 08.07.2008. 29. The costs estimated by the local Commissioner in his Report dated 08.07.2008 are as follows :\u00ad 1 Water softening plant Rs. 20,29,962 . 2 Fire fighting equipment Rs. 83,00,000 . 3 Second health club Rs. 7,60,000 . 4 Second swimming pool Rs. 2,70,000 . 5 Furnishing the club house in Eden Rs. 2,75,000 . Tower Total Rs.1,16,34,962 30. While ordering notice in C.A.No.2998 of 2010, on 29.03.2010, this Court granted stay of operation of the impugned order on condition that the opposite party\u2013builder deposit Rs.60,00,000/\u00ad within 8 weeks. Subsequently, the order was modified on 14.05.2010, permitting the opposite party to deposit the sum in two equal instalments, the first instalment before 22.05.2010 and 2nd instalment before 15.07.2010. It appears that the amount has been accordingly deposited and the amount has been invested in a Fixed Deposit which is renewed from time to time by the orders of this Court. 31. In view of the fact that the possession of the common amenities were handed over by the opposite party to the complainant Association 18 years ago (under the Agreement dated 15.11.2003), it may not be possible at this distance of time to compel the opposite party to make those facilities/systems at relief clauses 2, 3, 4, 5 and 6, fully operational now. The cost of estimate which works out to approximately Rs.1.16 crores, includes within itself the cost of fire fighting equipment and this constitutes the major component (it works out to Rs. 83 lakhs). As seen from the Commissioner\u2019s Report, the mistake committed by the opposite party was in removing a part of the equipment but not putting them back. This finding is as per the fire safety certificate. Therefore, it may not be appropriate to ask the opposite party to bear the entire burden. 32. Therefore, taking into account the overall picture, we are of the considered view that interests of justice will be met if the order of the National Commission is modified in such a manner (i) that the complainant Association shall receive in full and final settlement, the deposit now lying in the Registry of this court, towards adequate compensation for the reliefs that they are held entitled to by the National Commission; and (ii) that the opposite party is directed to remove all building material stored in the club house in the basement of Tower Eden and hand over possession of the club house to the complainant. 33. Now coming to the appeal CA No.4085 of 2010 filed by the complainant against the refusal of the reliefs in prayer clause nos.1, 7, 8, 9 and 10, we think that the National Commission was justified in rejecting those reliefs. The claim for monthly maintenance charges for the unsold flats, amounting to Rs.9,05,810/\u00ad sought as per prayer clause no.1, was made by the complainant on the basis of clause 10 of the Agreement dated 15.11.2003 which reads as follows: \u201c10. The FIRST PARTY agrees to pay to the SECOND PARTY the monthly maintenance charges @ 50 paise per square feet for the unsold flats w.e.f. 16.11.2003. FIRST PARTY shall make the advance payment for 6 months within 7 days of signing of the agreement. Subsequently these charges will be paid yearly in advance.\u201d 34. The averments relating to the relief claimed at prayer clause no.1 are found in paragraph 16 of the complaint which reads as follows:\u00ad \u201c16. That the amount of such advance payment upto 31.12.2006 is Rs.619568/\u00ad approx. an advance for the year 2007 comes to Rs.286242/\u00ad. Thus the OP has to make the total payment amounting to Rs. 905810/\u00ad approx. with interest @ 24% for the delayed period for which OP had agreed vide agreement dated 15.11.2003 Clause No.6 last two lines.\u201d 35. Though the National Commission did not deal with the relief claimed at prayer clause No.1 in sufficient detail and the National Commission did not also provide cogent reasons for rejecting the relief, we find that the complainant may not be entitled to the said relief. There are two reasons as to why we say so. The first reason is that the complainant did not provide detailed calculations about the plinth area of the unsold flats, the period during which they remained unsold and the manner in which the amount indicated in para 16 of the complaint was arrived at. In any case the payments were to be made under clause 10 of the agreement, first within seven days of the agreement in respect of the advance payment for six months and thereafter by way of annual payments in advance. Therefore, a major portion of the claim for money was obviously barred by limitation when the complaint was filed. Moreover, the opposite party raised a dispute about the quantum and asserted in para 16 of their reply before the National Commission that what was due was only Rs.232750/\u00ad. Thus, the question became a disputed question of fact on which both parties did not lead sufficient evidence. Therefore, the rejection of the claim at prayer clause No.1 was legally correct. 36. The relief claimed at prayer clause no.8 is to direct the opposite party not to sell or rent out the unsold flats till the facilities mentioned in prayer clause nos.2 to 6 are provided. By its very nature, this relief is in the nature of an interim relief and, hence, was rightly rejected by the National Commission in the final judgment. 37. The relief claimed in prayer clause no.9 relates to stilt and open car parking. There was no evidence before the National Commission to grant such a relief and, hence, the refusal to grant the relief mentioned in prayer clause no.9 is in order. 38. The claim for costs and damages for harassment, mental torture, agony etc., made in prayer clause no.10 was not granted by the National Commission, and rightly so, in view of the fact that after handing over the common amenities under the Agreement dated 15.11.2003, the opposite party continued to carry out at least some works. This is why the complaint was lodged in 2007. Therefore, we find no reason to grant the relief prayed for in prayer clause no.10. 39. That leaves us with the relief claimed in prayer clause no.7. This was for a direction to the opposite party to vacate the tenant occupying the terrace of Tower Eden. According to the complainant, the terrace of Tower Eden was let out by the opposite party to a company, leaving the residents of Tower Eden without a terrace for common use. But the relief of eviction involves a third party and hence the National commission rightly left it to the complainant to pursue the remedy in an appropriate Forum. 40. Thus, we find that the refusal of the National Commission to grant the reliefs mentioned in prayer clause nos.1, 7, 8, 9 and 10 warrant no interference. Therefore, the appeal of the complainant in CA No.4085 of 2010 is liable to be dismissed. 41. Accordingly the appeal of the consumer\u00adcomplainant in C.A. No. 4085 of 2010 is dismissed. The appeal of the builder\u00adopposite party in C.A. No. 2998 of 2010 is partly allowed, modifying and substituting the judgment of the National Consumer Disputes Redressal Commission dated 05.01.2010 in Consumer Complaint No. 9 of 2007, to the following effect: The complainant shall be entitled to all told monetary compensation in a sum of Rs. 60 lakhs, now lying in deposit with the Registry of this court, together with the interest accrued thereon, in lieu of the reliefs sought in prayer clauses 2, 3, 4, 5 and 6 of the complaint. The opposite party shall, within two weeks, remove all building material stored by them in the club house in the basement of Tower Eden and hand over possession of the club house to the complainant. The complaint shall stand dismissed in all other respects. No costs. 42. The parties are to bear their respective costs in these appeals. The Registry shall liquidate the fixed deposit standing to the credit of the above appeal and make payment of the proceeds to the complainant namely, Royal Garden Residents welfare Association. All interlocutory applications if any are closed. ...................................J. (Hemant Gupta) ...................................J. (V. 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{"id": "975074", "text": "PETITIONER: PARMAR KANAKSINH BHAGWANSINH (DEAD) BY L.R'S. Vs. RESPONDENT: 1. MAKWANA SHANABHAI BHIKHABHAI & 2. MAKWANA PRABATBHAI DATE OF JUDGMENT08/12/1994 BENCH: VENKATACHALA N. (J) BENCH: VENKATACHALA N. (J) SAHAI, R.M. (J) CITATION: 1995 SCC (2) 501 JT 1995 (1) 103 1994 SCALE (5)169 ACT: HEADNOTE: JUDGMENT: VENKATACHALA, J.: 1. This civil appeal by special leave is directed against the Judgment and Decree dated 29th November, 1977 rendered by a single Judge of the Gujarat High Court in Second Appeal No. 348 of 1973, which arose out of Regular Civil Suit No. 921 of 1966 filed in the Court of Joint Civil Judge, Baroda (Civil Court) by the appellant herein as plaintiff against respondents 1 and 2 herein - defendants 1 and 2 for redemption of suit properties which were mortgaged as security for certain monies borrowed by the plaintiff from defendant-l under two deeds of mortgage executed in the year 2. Plaintiff filed the suit for redemption of the said mortgages in the year 1966. Defendant-2, brother of defendantI had been joined in that suit on the allegation that the latter was put in possession of mortgage properties by the former subsequent to the coming into existence of the mortgages. That suit was resisted by the defendants, each of them having filed separate written statements which in sub- stance did not differ from each other. The defence in those written statements was that defendant-l and his family members had become tenants of the suit properties in the year 1959-1960 and had continued to be such tenants at the time of mortgage deeds executed in respect of those properties in the year 1961 and thereafter. It was also claimed therein that they had become owners of the said properties when the plaintiff in the year 1962 sold those properties to defendant-1 by receiving a sum of Rs.4,400/- as consideration for the sale. Even if the sale of said properties in favour of defendant-l, it was asserted therein, was not proved, they continued to be tenants of the said properties on the date of suit as they were tenants even before the date of coming into existence of the mortgages. The issue relating to their claim that they were tenants of the said properties - the agricultural lands, as urged therein, had to be referred by the Civil Court to the Mamlatdar under section 85-A of the Bombay Tenancy and Agricultural Lands Act, 1948 - \"the BT&AL Act\" for recording his finding thereon and the suit had to be stayed pending receipt of the finding thereon so that the suit may be finally disposed of on the basis of such finding. The Civil Court notwithstanding the defence of the defendants taken in their written statements that the suit had to be stayed for obtaining the finding on their claim of tenancy under the BT&AL Act, framed the issues in the suit on the basis of the pleadings of the parties and after trial .recorded its findings thereon. Such findings were firstly, that the defendants had failed to prove that the suit properties were sold in favour of defendant-l subsequent to the giving of security of those properties in his favour under the mortgage deeds; secondly, that the defendants had failed to prove the past tenancy of the suit properties on its view that what was pleaded by them in the written statements was tenancy prior to the date of filing of the suit; and thirdly, that the mortgages of the suit properties were mortgages by 'conditional sale. On the basis of findings so recorded by the Civil. Court, it also made a preliminary decree in favour of the plaintiff for redemption of the suit properties. Though the defendants filed an appeal in the Court of the District Judge, Baroda against the said preliminary decree that appeal came to be dismissed on August 17, 1972 affirming the judgment and decree of the Civil Court. 3. However, the defendants questioned the judgments and decrees of the trial court and the appellate court by filing a second appeal against the same in the High Court of Gujarat. A learned single Judge of the High Court, who heard the second appeal, while upheld the concurrent findings of the courts below that the deeds of mortgage executed by the plaintiff in respect of the suit properties in favour of defendant-l were mortgages by conditional sale and the defendants had failed to prove that there was sale of the suit properties in their favour subsequent to the coming into existence of the said mortgages, found that the defendants had raised in their written statements the plea that they were tenants not only prior to the date of suit but also at the time of the filing of the suit and having regard to that plea the suit ought to have been stayed by the Civil Court and the issue of tenancy should have been referred to the Mamlatdar for obtaining a finding from him thereon both under section 85-A of the BT&AL Act as it stood before its amendment at the time of filing of the suit and as it stood after its amendment after the filing of the suit. Consequently, the learned single Judge set aside the judgments and decrees of the trial court and the appellate court relating to the issue of tenancy raised by the defendants in the suit and remanded the case to the Civil Court (trial court) directing it to refer the issue of such tenancy to the Mamlatdar, Baroda for his determination and to stay all further proceedings in the suit till he got the finding from the Mamlatdar on that tenancy issue and thereafter to proceed to dispose of that suit in the light of that finding and the other findings recorded by the appellate court (District Judge). It is the Judgment and Order of the learned single Judge of the High Court by which he allowed the Second Appeal and remanded the suit, which is appealed against in this Civil Appeal of the plaintiff as is stated at the outset. 4. No controversy is raised in this appeal as regards the findings of the Civil Court that the deeds of mortgage executed by the plaintiff in respect of the suit properties were mortgages by conditional sale. Specific case pleaded by the plaintiff in the plaint as regards possession of the suit properties held by tenants was that their possession which was with the plaintiff was given to defendant-l on the execution of the deeds of mortgage by conditional sale in his favour. In any event, it was not the case of the plaintiff that defendant-l was a tenant of the suit properties and hc surrendered his possession of the suit properties either expressly or impliedly and the possession so obtained by the plaintiff was re-delivered to defendant-l in pursuance of the mortgages by conditional sale executed in his favour. 5. However, the arguments addressed before us on behalf of the plaintiff- appellant in support of the appeal by learned Senior Counsel Mr. S.K. Dholakia were these: That defendant-l - respondent-l although was in possession of the suit properties - agricultural lands at the time of execution of the deeds of mortgage by conditional sale in his favour because of the coming into existence of such mortgages there occurred merger of lease-hold rights of defendant-l in suit properties when he obtained those properties as mortgage security under the said mortgages and as a consequence he became a mortgagee in possession of those properties. According 10 him a mortgagee in possession being a person who cannot be deemed to be a tenant under section 4 of the BT&AL Act it was not open to the defendants to claim that they were the tenants of suit properties and if that be so question of raising issue of tenancy by the Civil Court in the suit before it did not arise at all nor was it necessary to refer such issue to the Mamlatdar under section 85-A of the BT&AL Act and stay the suit till receipt of the finding on such issue as was directed by the High Court in its judgment under appeal. In support thereof, he sought to place reliance on the decisions of this Court in Shah Mathuradas Maganlal and Co. v. Nagappa Shankarappa Malaga and Others [AIR 1976 SC 1565] and Gambangi Appalaswamy Naldu and Others v. Behara Venkataramanayya Patro [AIR 1984- SC 1728]. Even otherwise. it was argued by him that the Civil Court before whom the plaintiff had filed the suit for redemption of the suit properties could not have driven the plaintiff to the forum of Mamlatdar merely because the defendants had raised the plea that they were tenants of the suit properties - agricultural lands. According to him when the plaintiff had not admitted that the defendants were tenants of the suit properties, it was not open to the defendants to force the plaintiff who had a right to choose his forum to file a suit to go before another forum on the plea that jurisdiction lay before another forum, that is, Mamlatdar. In this regard support was sought from the decision of this Court in Raizada Topandas and Another v. M/s. Gorakhram Gokalchand [AIR 1964 SC 1348]. He, therefore, urged that the High Court was not justified in upsetting the concurrent finding of the trial court and the appellate court that the defendants failed to prove their tenancy and remanding the case to the trial court directing it to refer the issue of tenancy to the Mamlatdar and stay the suit till the receipt of the finding in that regard from the Mamlatdar and then dispose of the suit. Hence, the Judgment and Order of the High Court, according to him, was liable to be interfered with and set aside. 6. However, learned counsel appearing for the defendants - respondents sought to refute the arguments advanced on half of the plaintiff- appellant. 7. Questions which arise for our consideration and decision in the light of the aforesaid arguments of learned counsel for the contesting parties admit of their formulations thus: (1). Does the lease-hold of a tenant (lessee) in a property merge in mortgage security if the same property is given by the landlord (lessor) to the tenant (lessee) as a mortgage security under a mortgage by conditional sale, as would debar the tenant from desisting the suit of the landlord - mortgagor for recovery of possession of such property by obtaining a decree for redemption of the mortgage ? (2). When a plea of tenancy is raised with regard to suit property, an agricultural land, by a defendant who claims to be a tenant of such property under the BT&AL Act and seeks a reference of that issue by the Civil Court to the Mamlatdar under that Act for obtaining a finding thereon, can the Civil Court decide such issue by itself and proceed to decide the suit on the basis of the finding thereon ? As the said questions could be dealt with appropriately with reference to the statutory provisions which bear upon them, it would be convenient to advert to such statutory provisions here. The Transfer of Property Act, 1882 (TP Act) \"111. A lease of immoveable property determines - (a) .... (b) .... (c) .... (d) in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right ..... \" Bombay Tenancy and Agricultural Lands Act,1948 (BT&AL Act) \"2. In this Act, unless there is anything repugnant in the subject or context, (18) 'tenant' means a person who holds land on lease and include - (a) a person who is deemed to be tenant trader section 4; (b) a person who is a protected tenant; and (c) a person who is a permanent tenant; and the word 'landlord' shall be construed accordingly.\" \"4. A person lawfully cultivating any land belonging to another person shall be deemed to be a tenant if such land is not cultivated personally by the owner and if such person is not - (a) a member of the owner's family, or (b) a servant on wages payable in cash or kind but not in crop share or a hired labourer cultivating the land under the personal supervision of the owner or any member of the owner's family, or (c) a mortgagee in possession.\" \"70. For the purposes of this Act the following shall be the duties and functions to be performed by the Mamlatdar - (a) to decide whether a person is an agriculturist; (b) to decide whether a person is a tenant or a protected tenant (or a permanent tenant); (c) to decide such other matters as may be referred to him by or under this \"85. (1). No Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the Mamlatdar or Tribunal, a Manager, the Collector or the Maharashtra Revenue Tribunal in appeal or revision or the State Government in exercise of their powers of control. (2). No order of the Mamlatdar, the Tribunal, the Collector or the Maharashtra Revenue Tribunal or the State Government made under this Act shall be questioned in any Civil or Criminal Court. Section 85A, as it stood before the amendment of this Act by Gujarat Act No.5 of 1973 w.e.f. 3rd March, 1973: \"85A. (1). If any suit instituted in any Civil Court involves any issues which are required to be settled, decided or dealt with by any authority competent to settle, decide or deal with such issues under this Act (hereinafter referred to as the 'competent authority') the Civil Court shall stay the suit and refer such issues to such competent authority for determination. (2). On receipt of such reference from the Civil Court, the competent authority shall deal with and decide such issues in accordance with the provisions of this Act and shall communicate its decision to the Civil Court and such court shall thereupon dispose of the suit in accordance with the procedure applicable thereto .... \" Section 85A, as it came into force after it was amended by Gujarat Act No.5 of 1973 w.e.f 3rd March, 1973 :- \"85A. (i) If any suit instituted, whether before or after the specified date, in any Civil' Court involves any issues which are required to be settled, decided or dealt with by any authority competent to settle, decide or deal with such issues. under this Act (hereinafter referred to as the 'competent authority') the Civil Court shall stay the suit and refer such issues to such competent authority for determination. ' ' 9. We shall now proceed to deal with the aforesaid questions. Question (1): 10. Interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right because of section 11 l(d) of the T.P. Act. What is enunciated in section 111 (d) of the T.P. Act cannot be doubted is the doctrine of merger. Merger takes place when a lesser estate is merged or drowned in a greater estate. Lease- hold held by a tenant or a lessee being a lesser estate and the right of reversion of the landlord (lessor) being a higher estate, the lessee's lease-hold right in respect of the property merges in reversion when that right of reversion, i.e., the landlord's (lessor's) right of reversion comes to the tenant or lessee which happens when the landlord having a right to sell his reversion to the tenant holding the lease-hold sells the whole of it to the tenant (lessee). But, in view of the arguments advanced on behalf of the plaintiff- appellant, what has to be seen is if the landlord of a property, the lease-hold of which is already with the tenant, gives that very property as mortgage security to the tenant (lessee) by executing a mortgage by a conditional sale for the amount borrowed by him from the latter, does merger of lease-hold right in that mortgage security occur. When the landlord mortgages the lease-hold property of the tenant to the tenant himself, he does not part with the right of reversion which he has in respect of that property. If that be so, merger of lease-hold estate in reversion cannot arise, inasmuch as, there cannot be any inconsistency or incompatibility in one person being the tenant and also the mortgagee of the same property, for in that event instead of the tenant paying rent to the landlord he may adjust it against the amount claimable by him as a mortgagee from the landlord. Moreover, if a lessee of a property takes a mortgage of the sum property from the landlord, it would be unreasonable to attribute to a tenant the intention to surrender the tenancy and to invoke the sophisticated doctrine of implied surrender as has been held by the Gujarat High Court in Patel Atmaram Nathudas v. Babubhai Keshavlal, AIR 1975 Guj. 120. 11. In the present case, as has already been pointed out by us, the plaintiff- appellant did not claim that the defendants or any of them were in possession of the suit properties as tenants and there was a surrender by them of the possession either expressly or impliedly as would make the Court to come to the conclusion that the possession of the suit properties with the defendants was surrendered by them pursuant to the mortgage by conditional sale executed in their favour. If that be the position, there can be no bar for the defendants to claim the right to continue in possession of the suit properties as tenants under the BT&AL Act even if the plaintiff could obtain a decree for redemption of the suit properties, which relief was sought in the suit. The decision of this Court in Shah Mathuradas case (supra) and G. Appalaswamy case (supra) sought to be relied upon by learned counsel for the appellant - plaintiff in support of his arguments that there was a merger of the leasehold right of the tenant in the suit properties when he took mortgages of those properties from the landlord as would deny him the right to continue in possession of those properties as a tenant, instead of supporting his argument would go against it, as we shall presently point out. Shah Mathuradas case (supra) was that where the respondent had executed a mortgage in favour of the appellant respecting a premises of which he was a tenant. It was agreed under the terms of the mortgage deed that no interest need be paid by the respondent since the premises, the possession of which was given to the tenant pursuant to the mortgage was to be enjoyed in lieu of interest payable on the mortgage. When suit for redemption of the premises was filed by the respondent the appellant claimed, that after redemption, he was entitled to remain in possession of the premises because of the subsistence of his previous tenancy right. This Court held that the mortgage deed established beyond doubt that there was no subsistence or continuation of lease in that there was delivery of possession by the tenant to the landlord immediately before the mortgage and redelivery of possession to the tenant of the premises made by the landlord was pursuant to the mortgage as a mortgagee and not as a tenant. Secondly, this Court held that the appellant was not entitled to retain after redemption possession of the mortgage-property by reason of his previous right to be in its possession as a tenant. In the present case as we have pointed out earlier, when no surrender of possession of the suit properties had taken place before the coming into existence of mortgages in favour of the lessor - mortgagor, when no redelivery of possession had been given pursuant to the mortgage to the-tenant, the decision under consideration can be of no assistance to the appellant. Since the following observations in the said case confirm the view we have taken on non-merger, they can be excerpted: \"For a merger to arise, it is necessary that a lesser estate and a higher estate should merge in one person at one and the same time and in the same right, and no interest in the property should remain outside. In the case of a lease the estate that is in the lessor is a reversion. In the case of a mortgage the estate that is outstanding is the equity of redemption of the mortgagor. Therefore, there cannot be a merger of lease and mortgage in respect of the same property since neither of them is a higher or lesser estate than the other.\" 13. Coming to G. Appalaswamy case (supra) which considered the question whether a sitting tenant who took property by a possessory or usufructuary mortgage in his favour was liable to deliver physical possession upon redemption to the mortgagor (former lessor). This Court dealing with the said question said that all depends upon whether there was an implied surrender of the lessee's rights when the usufructuary mortgage was executed in his favour by the lessor-mortgagor and only if an implied surrender of lossee's rights could be inferred then the mortgagor would be entitled to have delivery of physical possession upon redemption but not otherwise. Dealing with the question of non-merger this Court approved the ratio of the decision in Shah Mathuradas (supra) thus: \"In our view there can be no merger of a lease and a mortgage, even where the two transactions are in respect of the same property. It is well-settled that. for a merger to arise, it is necessary that lesser estate and a higher estate should merge in one person at one and the same time and in the same right and no interest in the property should remain outstanding. In the case of a lease, the estate that is outstanding in the lessor is the reversion; in the case of a mortgage, the estate that is outstanding is the equity of redemption of the mortgagor. Accordingly, there cannot be a merger of a lease and a mortgage in respect of the same property since neither of them is a higher or lesser estate than the other. Even if the rights of the lessee and the rights of the mortgagee in respect of a property were to be united in one person the reversion in regard to the lease and the equity of redemption in regard to the mortgage, would be outstanding in the owner of the property and accordingly, there would not be a complete fusion of all the rights of ownership in one person.\" 13. Hence, the lease-hold of a tenant (lessee) in a property does not merge in mortgage security of that property, even if it is given .to him by the landlord (lessor) on a mortgage by conditional sale as would debar the tenant from desisting the suit of the landlord mortgagor for recovery of possession of such property by obtaining decree for redemption of the mortgage. Question (2): 14. The argument which was strenuously advanced on behalf of the appellant - plaintiff was that in a suit for redemption filed by the mortgagor in a Civil Court in respect of property notwithstanding the plea of the defendants' claim that they were tenants of that property under the BT&AL Act and under the provisions of that Act the issue of tenancy had to be referred by the Civil Court to the Mamlatdar for recording a finding thereon and the Civil Court can proceed to dispose 0 the suit only on the basis of the finding received from the Mamlatdar, the Civil Court itself can record its finding on the issue of tenancy and if the finding to be recorded had to go against the claim of tenancy, it would be permissible for the Civil Court to grant the decree for redemption sought by the plaintiff in the said suit. Support was sought for the argument from the decision of this Court in Topandas case (supra). 15. We find it difficult to accept the said argument and the aforesaid decision of this Court relied upon in support thereof can render no assistance. The only question which arose for decision in Topandas case (supra) was whether on a proper interpretation of section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 - \"the Rents Control Act\", the Court of Small Causes, Bombay had exclusive jurisdiction in dealing with the suit out of which the appeal had arisen. There, the respondent - a partnership firm was in possession as a tenant of a shop at Mulji Jetha Market, Bombay. It instituted a suit in the Bombay City Civil Court (not the Court of Small Causes, Bombay) praying for a declaration that it was in lawful possession of the shop and the appellants had no right to enter into or remain in possession of the shop and for grant of an injunction restraining the appellants from interfering with the respondent's possession. The plaint averments were that appellant- 1 (defendant- 1) had appointed the respondent as his commission agent for the sale of the appellants' cloth in the shop in question. The agreement was to remain in force for a period of four years. Pursuant to the said agreement, the respondent had allowed the appellants, their family members, servants and agents to visit the shop only for the purpose of looking after the business of commission agency. The appellants, despite being asked not to visit the shop after the expiry of the period in the concerned agreement, they continued to visit the shop and were preventing the respondent from having access to its various articles such as stock-in-trade, books of account, furniture, fixtures etc. Thus according to the plaint, the appellants who .were merely licensees, had no right to enter into the shop after the expiry of the period of licence envisaged in the agreement. The defence of the appellants (defendants) in substance was that the agreement on which reliance was placed by the respondents in their suit was a sham agreement and that the appellants in reality were the tenants of the shop and the relationship between the respondents and appellants was that of the landlord and tenant. The further plea taken in the written statement by the appellants was that as the question involved in the suit related to the possession of premises as between a landlord and his tenant, the Court of Small Causes, Bombay, alone had jurisdiction to try the suit. The appeal in this Court had arisen out of the finding recorded on that issue and in dealing with that matter this Court had. to consider the true effect of sub-section (1) of section 28 of the Rents Control Act to find whether it means that a defendant if raises a claim or question as to the existence of relationship of landlord and tenant between him and plaintiff the jurisdiction of the Civil Court is ousted even though the plaintiff pleaded that there is only exclusive jurisdiction to decide the case with the Court of Small Causes, Bombay. Dealing with the matter this Court referred. to the general principle which covers the question of jurisdiction at the inception of suits which was not disputed, thus: \"The plaintiff chooses his forum and files his suit. If he establishes the correctness of his facts he will get his relief from the forum chosen. If ... he frames his suit in a manner not warranted by the facts, and goes for his relief to a court which cannot grant him relief on the true facts, he will have his suit dismissed. Then there will be no question of returning the plaint for presentation to the proper court, for the plaint, as framed, would not justify the other kind of court to grant him the relief ..... If it is found, on a trial on the merits so far as this issue of jurisdiction goes, that the facts alleged by the plaintiff are not true and the facts alleged by the defendants are true, and that the case is not cognizable by the. court, there will be two kinds of orders to be passed. If the jurisdiction is only one relating to territorial limits or pecuniary limits, the plaint will be ordered to be returned for presentation to the proper court. If, on the other hand, it is found that having regard to the nature of the suit it is not cognizable by the class of court to which the court belongs, the plaintiff's suit will have to be dismissed in its entirety.\" 16. By referring to the material portion of section 28 of the Rents Control Act the argument made on behalf of the appellants was found by this Court to be untenable by stating thus: \"... We do not think that the section says or intends to say that the plea of the defendant will determine or change the forum. It proceeds on the basis that exclusive jurisdiction is conferred on certain courts to decide all questions or claims under the Act as to parties, between whom there is or was a relationship of landlord and tenant. It does not invest those courts with exclusive power to try questions of title such as questions as between the rightful owner and a trespasser or a licensee, for such questions do not arise under the Act. If, therefore, the plaintiff in his plaint does not admit a relation which would attract any of the provisions of the Act on which the exclusive jurisdiction given under S.28 depends, we do not think that the defendant by his plea can force the plaintiff to go to a forum where on his averments he cannot go. The interpretation canvassed for by the appellants will give rise to anomalous results; for example, the defendant may in every case force the plaintiff to go to the Court of Small Causes and secondly, if the Court of Small Causes finds against the defendant's plea, the plaint may have to be returned for presentation to the proper court for a second time ..... when one has regard to the provisions in Part II it seems reasonably clear that the exclusive jurisdiction conferred by S.28 is really dependent on an existing or previous relationship of landlord and tenant and on claims arising under the Act as between such parties.\" 18. As seen from the above observations this Court has held that it did not think that the section concerned says or intends to say that the plea of the defendant will determine or change the forum. But, if the provisions of the BT&AL Act which bear on the question of matters to be decided by the Mamlatdar are seen, they give no room for one even to think that those matters could be decided by a Civil Court when a question is raised in that behalf even by a defendant in a suit. 19. Section 70 of the BT&AL Act to which we have adverted already imposes a duty on the Mamlatdar to decide whether a person is an agriculturist or a tenant or a protected tenant or a permanent tenant when such person claims to be so under that Act. Further, section 85 of the BT&AL Act to which also we have already adverted, in unequivocal terms says that in deciding any issue which is required to be decided by the Mamlatdar under the BT&AL Act no Civil Court has jurisdiction to decide it. Furthermore, section 85A, as it stood prior to its amendment by Gujarat Amendment Act No.5 in the year 1973 and as stands thereafter, requires that if any suit instituted in Civil Court involves the question of tenancy of 'present' or 'past', as the case may be, the same being required to be decided or dealt with by an authority competent under the BT&AL Act, the Civil Court has to stay the suit and refer the issue to such competent authority for determination and after receiving the decision thereon to dispose of the suit in accordance with such decision. Thus, the provisions in the BT&AL Act give no scope or room to think that the plea of tenancy if raised by the defendants in a suit in a Civil Court, the same could be decided by the Civil Court. Thus we are constrained to answer the question in the negative by agreeing with the view expressed by the single Judge of the High Court in this regard in his Judgment and Order under appeal. 20. Consequently, the Judgment and Order under appeal does not call for our interference. 21. 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{"id": "189525449", "text": "Non-Reportable IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO._______OF 2021 (Arising out of SLP (Crl) No. 6965 OF 2019) Surendra Kumar & Anr. APPELLANT(S) VERSUS State of U.P. RESPONDENT(S) J U D G M E N T Hrishikesh Roy, J. Leave granted. This appeal is the culmination of a tragedy which decimated two families in its course. The murder of a recently married young woman, where the finger of suspicion was raised towards her own husband, brother-in-law and even her father-in-law as an accused who met an unnatural demise during the pendency of the trial. This Court has been approached to lay to rest Signature Not Verified the litigation which has followed suit for more than Digitally signed by Jayant Kumar Arora Date: 2021.04.24 14:43:04 IST Reason: two decades. 2. Heard Mr. Shadan Farasat, learned counsel for the appellants. Also heard Mr. V. Diwakar, learned AAG representing the State of Uttar Pradesh. The challenge in this appeal is to the common judgment and order dated 12.3.2019 in Criminal Appeal No. 346 of 2009, whereby the Division Bench of the High Court of Judicature at Allahabad upheld the conviction of the appellant No. 1 under Section 302 read with Section 34 of the Indian Penal Code, 1860 (hereinafter referred to as \u201cIPC\u201d) and of the appellant No. 2, under section 120B IPC. 3. The appellants are brothers and are residents of Mahal Village in Meerut District. The appellant No. 2 Ramveer was married on 13.5.1993 to Kamla Rani, whose parental home was in the neighboring village of Phlawada. On 8.8.1993 Kamla Rani, after spending some days with her parents was returning back on the scooter driven by her brother in law Surendra Kumar (appellant No. 1). Some minutes after they started the journey, two armed miscreants on the road between Phlawada and Bathnor ambushed the scooter near the forested area and took Kamla Rani to the roadside sugarcane field of Quasim Ali and shot her from close range and robbed her of the gold and silver ornaments worn on her person. Surendra Kumar then rode the scooter to village Phlawada to inform Baldev, the father of Kamla Rani about the incident. The scooter was left behind with Kamla Rani\u2019s father and Surendra then returned to his own village and informed his brother and other family members in the matrimonial home of the deceased, at Village Mahal. Both brothers accompanied by their father, thereafter rushed to the police station. Around the same time, Dhan Singh (PW-1) and Karamveer (PW-2), who were near the site of incident, after hearing the sound of firing went towards the field and they noticed two miscreants (not appellants), removing ornaments from the body of Kamla Rani. The PW1 and PW2 accosted the looters but showing arms, both looters fled from the scene. 4. The FIR of the incident (which took place around 4.45 pm) was filed at 5.30 pm by Baldev Singh (father of the deceased Kamla Rani) at the Phlawada Police Station. Meanwhile, the appellants and their father Om Prakash also reached the Police Station. Since, maltreatment of the deceased in the matrimonial home was alleged in the FIR, the appellants were detained in the police lock up and four days later, the police formally arrested all three, on charge of conspiracy and murder. In course of investigation, the police also arrested Rajveer and Shiv Kumar alias Pappu, suspecting them to be the two unknown robbers seen by PW1 and PW2, in the act of removing ornaments from the person of the deceased Kamla Rani. 5. The preliminary investigation was done by S.I Ramachandra Singh (PW5), who prepared the Panchnama (Exbt Ka-7) and sent the dead body for autopsy. Few jewellery items and the locked suitcase, found near the body were also seized by the PW-5. Next day i.e. 9.8.1993, the SHO Amrat Lal returned from leave and led the investigation. He seized the scooter from the residence of Baldev and the recovery memo of scooter (Exbt Ka-2) was prepared. 6. The autopsy of dead body of Kamla Rani was done by PW3 Dr. N.K Maheshwari on 9.08.1993 at 4.30 p.m. and he noted the following antemortem injuries on the body; 1 Firearm wounds of entry 2.0 cm X 2.5 cm on right side of neck blackening & tattooing 8.0 cm X 8.0 cm on upper side of wounds; 2 Firearm entry wound of 2.0 cm X 2.5 cm into muscle deep with blackening & tattooing around 2.0cm, mandible bone was also fractured. 3- Firearm wounds of exit 5.0 cm x 8.0 cm margin irregular at the left side of Upper face on external examination of dead body post mortem staining present on the back side rigour mortis was absent on upper side and present on lower side of the body. Dr. N.K Maheshwari in his report opined that the cause of death was hemorrhage & shock as a result of ante- mortem injury. 7. As stated earlier, the investigation unearthed the names of Shiv Kumar and Rajveer (both acquitted by the High Court). On completion of investigation, the chargesheet (Exbt Ka3) was filed by the I.O. against 5 accused. The case was committed and charge was framed by Sessions Court against Shivkumar and Rajveer u/s. 302/394 of IPC; against Om Prakash and Ramveer u/s. 120B IPC and against Surendra Kumar u/s. 302/34 of I.P.C. All five accused were tried together but Om Prakash died during trial and the case against him was abated. 8. While there was no direct evidence implicating the appellants in the crime, on the basis of circumstantial evidence of the husband being unhappy with Kamla Rani, the alleged conspiracy hatched by him with his brother and father Om Prakash and the fact that the deceased was last seen in the company of appellant Surendra in whose scooter she was travelling back from her parental home, and the suspicious conduct of the appellants, the Trial Court convicted the appellant No. 1 Surendra Kumar, under Section 302 read with Section 34 IPC and the appellant No. 2 Ramveer, under Section 120B IPC. Accused Shiv Kumar and Rajveer were additionally held guilty under Section 394 and an appropriate sentence was imposed against all four accused, by the learned Additional Sessions Judge, Meerut. 9. In the appeal filed by the brothers, High Court confirmed the conviction of the appellants but relief was granted in the connected criminal appeal filed by Rajveer and Shiv Kumar and they were acquitted. 10. The High Court while affirming the conviction, accepted the conspiracy theory of the prosecution for the murder of Kamla Rani. The Court also accepted the last seen together evidence against appellant Surendra Kumar. Noting the absence of credible explanation from Surendra, on the circumstances of the incident, the appeal of the brothers Surendra and Ramveer was dismissed by the High Court, leading to present challenge. 11. As the case against the appellants is entirely based on circumstantial evidence, it is necessary to determine whether the available evidence lead only to the conclusion of guilt and exclude all contrary hypothesis. The enunciation on the law of circumstantial evidence stood the test of time since Hanumant Vs. State of Madhya Pradesh1 where Mahajan J., has written as under:- \u201c10\u2026\u2026\u2026\u2026It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused\u2026\u2026\u2026\u2026\u2026\u201d 12. The nature, character and essential proof required in criminal cases was discussed in detail by Fazal Ali J in Sharad Birdhichand Sarda vs. State of Maharashtra2 and the proposition of law culled out on circumstantial evidence was approved in many subsequent judgments and was recently reiterated by Krishna Murari J., writing the opinion for a three Judges Bench in Shailendra 1 AIR 1952 SC 343 2 (1984) 4 SCC 116 Rajdev Pasvan & Ors. Vs. State of Gujarat & Ors. 3 where it was succinctly laid down as under:- \u201c17. It is well settled by now that in a case based on circumstantial evidence the courts ought to have a conscientious approach and conviction ought to be recorded only in case all the links of the chain are complete pointing to the guilt of the accused. Each link unless connected together to form a chain may suggest suspicion but the same in itself cannot take place of proof and will not be sufficient to convict the accused.\u201d 13. Proceeding with the above proposition of law, let us now examine whether the circumstances here satisfactorily prove that Kamla Rani was murdered because her husband had an issue with her appearance. The unhappiness of the appellant No. 2 with his wife is projected by the testimony of Santari (PW-6) and Nain Singh (PW-7) and similar thing is also mentioned in the FIR written by Nain Singh (PW-7) as, dictated by Baldev Singh, the father of the deceased. The reliability of the evidence of PW6 and PW7 is however to be tested in the backdrop of the fact that PW7 Nain Singh and Shravan Kumar (husband of PW-6) were charged with the murder of their deceased sister\u2019s father-in- 3 (2020) 14 SCC 750 law i.e. Om Prakash alias Mallu. Both were named in the FIR 157 of 2000 registered under Section 302 and 506 of the IPC and were detained in jail in the year 2000. The testimony of PW-6 and PW-7 was recorded in Court, much after Shravan Kumar (husband of PW-6) and Nain Singh (PW-7) were released from jail. As such it cannot be ruled out that PW-6 and PW-7 had strong reason for implicating the appellants. Therefore, the motive attributed to the appellants in the evidence of PW-6 and PW-7, would fail the test of legal scrutiny in the absence of any corroborative evidence. 14. The appellant Ramveer was married with Kamla Rani and no criminal act is attributed to him. His conviction is entirely based on the theory that he hatched a conspiracy with his brother and father to eliminate Kamla Rani as he was unhappy with her looks. This appears to be far fetched because prosecution failed to adduce any evidence to prove the meeting of minds of the two brother or with the other two accused Shiv Kumar and Rajveer to eliminate Kamla Rani. The unhappiness attributed to the husband cannot reasonably implicate his brother Surendra Kumar or the two unrelated accused. In any event the additional charge against Shiv Kumar alias Pappu and Rajveer was under Section 394 IPC but no such charge of robbery is attributed to the present two appellants. Most significantly there is no common conspiracy theory connecting all the accused in the case. The prosecution as can be noted, failed to establish any criminal conspiracy between Surendra and Ramveer on one hand and the accused Shiv Kumar and Rajveer who additionally were charged with robbery, on the other hand. Therefore, the theory of common intention or meeting of mind between the appellants and the two acquitted accused Shiv Kumar and Rajveer, must be discarded as implausible. 15. In any case, even Ramveer\u2019s dissatisfaction with his wife may not provide an acceptable and strong enough motive for the husband to conspire and kill Kamla Rani. This is pertinent since no role whatsoever is attributed to the husband by the evidence on record. Ramveer may or may not be having a cordial relation with the deceased but it can\u2019t be said with certainty that killing her was the only option available to him to avoid the company of the deceased. 16. Equally telling is the testimony of PW1 and PW2 who heard gun shots and soon thereafter saw the two acquitted accused Shiv Kumar and Rajveer removing ornaments from the dead body of the deceased. The witnesses confronted and followed both robbers for some distance. They were present at the spot and saw part of the crime but they never implicated the brother-in-law, who was last seen with the deceased. However, the Court refused to give credence to their testimony by describing them as chance witnesses. The PW-1 and PW-2 as the only ones present near the place of occurrence, do not implicate the appellant No. 1 with the crime. The courts below however, discarded the evidence of these two key witnesses who heard firing and also saw a part of the crime, by treating them as chance witnesses. The presence of PW1 and PW2 near the place of occurrence was natural and their testimony on the sequence of crime at the place of occurrence was cogent and consistent. Both had not only seen the robbery but also confronted the robbers and followed them for a while. The Courts below in our view erred in not treating both as independent witnesses. Their testimony would be of value to show that the appellant Surendra Kumar had no connection with the two robbers and his innocence could then be inferred without much difficulty. 17. We may now examine the role and conduct of the appellant No. 1 Surendra Kumar who was escorting the deceased from her parental home on his scooter and is the last person seen in the company of the deceased. The Court below however has relied upon Section 106 of the Indian Evidence Act to connect him with the crime. This according to us was the incorrect approach inasmuch as the burden to prove the guilt is always on the prosecution and cannot be shifted to the accused by virtue of Section 106 of the Evidence Act. This proposition of law on criminal jurisprudence stood the test of time since Emperor Vs. Santa Singh4 where Din Mohammad J., observed as under:- \u201c28. \u2026\u2026\u2026\u2026Section 106 of the Evidence Act, cannot be used to strengthen the evidence for the prosecution. The 4 AIR 1944 Lahore 339 (FB) prosecution must stand or fall on the evidence adduced by it and until a prima facie case is established by such evidence, the onus does not shift on to the accused. Mere proof that an incriminating article is found in premises occupied by a number of persons does not in itself establish prima facie the guilt of any particular person or all of them jointly. That being so, they cannot be called upon after such evidence to establish their innocence. They can only be called upon to do that when the evidence has established a prima facie case against any one or more of them or all of them\u2026\u2026\u2026\u2026\u2026\u2026.\u201d In the present case, the prosecution failed to adduce acceptable evidence to prove the crime against the appellants and the Court according to us erred in shifting the burden of proving the innocence upon the accused, with the aid of Section 106 of the Evidence Act. 18. The next issue to be considered is whether there was any suspicious conduct of the appellant Surendra Kumar after the incident. Soon after the scooter was ambushed and Kamla Rani was shot dead, the appellant Surendra Kumar straight away rode the scooter to Phlawada village to inform Baldev, the father of the deceased. The post occurrence meeting between the deceased\u2019s father Baldev and Surendra, can be gathered from the fact that in the FIR lodged within half an hour of the incident, Baldev had specifically mentioned about absence of injuries on Surendra. The question is whether failure of the brother-in-law to confront the armed attackers and not suffer any injury thereby, can be a circumstance to implicate him. The reaction of witnesses who see violent crime can vary from person to person and to expect a frightened witness to react in a particular manner would be wholly irrational. Equally dangerous would be the approach of the Courts to reach certain conclusion based on their understanding of how a person should react and to draw an adverse inference when the reaction is different from what the Court expected. Explaining the fallacy in such approach Chinnappa Reddy J speaking for the Bench in Rana Pratap and others vs. State of Haryana5 observed the following; \u201c6. Yet another reason given by the learned Sessions Judge to doubt the presence of the witnesses was that their conduct in not going to the rescue of the deceased when he was in the clutches of the assailants was 5 (1983) 3 SCC 327 unnatural. We must say that the comment is most unreal. Every person who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counter- attacking the assailants. Every one reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way.\u201d Approving the above view, S.B. Sinha J., in Dinesh Borthakur Vs. State of Assam6 succinctly explained how guilt should not be inferred because of a particular type of reaction by an individual. The relevant parts are extracted below: - \u201c47. No hard-and-fast rule having any universal application with regard to the reaction of a person in a given circumstance can, thus, be laid down. One person may lose equilibrium and balance of mind, but, another may remain a silent spectator till he is able to reconcile himself and then react in his own way. Thus, merely because the appellant did not cry or weep on witnessing the dead bodies of his wife and daughter, cannot be made the basis for informing (sic inferring) his guilt.\u201d 6 (2008) 5 SCC 697 The above pronouncements in our view rightly prescribe that there can be no uniform or universal reaction for a crime witness and inferences must not be drawn on Court\u2019s assumption. 19. The fact that the appellant Surendra Kumar chose to first inform Baldev that his daughter was shot by miscreants instead of confronting the miscreants or informing the police, is not an unnatural reaction. Moreover, since Baldev on being informed had immediately registered the FIR at the Police Station, there was no occasion for either of the appellants to file a second FIR on the same crime. Therefore, the so called suspicious conduct after the incident, was wrongly inferred only because the appellant reacted in a particular manner. In the process, the Court failed to notice the vital fact that Baldev was informed of his daughter\u2019s killing by appellant Surendra. This conduct of the appellant makes it equally plausible that Surendra was innocent and had decided to act prudently instead of showing courage to the armed criminals. 20. We may also note here that the scooter in which Kamla Rani was travelling, was a dowry gift by her father and the appellant Surendra after informing the father about the incident, left the scooter in his custody. Only then, Surendra rushed back to his own village to inform about the incident to his brother and father. Next day, the same scooter was recovered by the police from the residence of Baldev. This would corroborate that Baldev learnt of the crime from the appellant Surendra. If Surendra was actually involved in the crime, would he have straight away proceeded to the village of the deceased to inform her father of the incident. The appellant may not have confronted the robbers nor suffered any injury. But this by itself cannot in our view lead to an inference that it was he, who murdered Kamla Rani. 21. Another key link in the chain of circumstances to connect Surendra with the murder was the fact that he was the last person to be seen alive with Kamla Rani and his alleged unnatural conduct after the incident. On being confronted with the armed miscreants, Surendra perhaps was too intimidated to offer any fight or resistance. The accused did not try to do anything valiant at the place of occurrence and instead straight away drove down to inform the deceased\u2019s father, at his village. With this information, Baldev managed to lodge the FIR. The police seized the scooter the next day from Baldev\u2019s residence. The scooter was a dowry gift and following the death of the newly married Kamla Rani, Surendra might have considered it appropriate to entrust the scooter to the deceased\u2019s father. The FIR and the scooter seizure memo (Exbt Ka-2) clearly show that Surendra did not run away as it has been assumed by the courts below. Confronted by the armed robbers, Surendra may not have counter attacked to invite injury upon himself but this by itself can\u2019t be construed as suspicious conduct. Yet his post incident conduct was found to be suspicious enough by the courts below, to link him with the murder. In the present case, no criminal act is attributed to Surendra and conspiracy between him and the two armed miscreants is not shown. Therefore to link the appellant with the murder is nothing more than a matter of surmises and conjectures. In fact, the evidence on record is consistent with the statement given by Surendra under Section 313 of the CrPC where he stated that near the forest area of Bathnor village, two armed miscreants stopped the scooter and shot his bhabhi and looted away the jewellery from her person. The appellant immediately informed about the incident to the father of the deceased. Thereafter he has also informed Ramveer (husband of the deceased). Then Surendra, Ramveer and their father Om Prakash reached the police station with the Gram Pradhan. But appellant Surendra, Om Prakash and Ramveer were detained on suspicion by police. Reading the evidence in the case, we feel that Surendra\u2019s explanation in his Section 313 statement is quite plausible but was not appropriately appreciated which has led to failure of justice against the accused. 22. Similarly for the husband Ramveer, there is no direct evidence to establish his role in the incident. As his conviction is entirely based on a conspiracy theory, it is essential to determine whether there was an agreement between the parties for doing an unlawful act and it must emerge clearly from evidence that there was meeting of mind towards a common goal between Ramveer and his brother and also between Ramveer and the two armed robbers. The case evidence on record does not however establish any such agreement between Ramveer and the other accused. Conspiracy is a matter of inference and inference must be based on solid evidence. In case of any doubt the benefit must inevitably go to the accused. The 2nd appellant\u2019s conviction simply because of his dislike for the deceased, even if accepted to be correct, would not in our opinion be justified in the absence of any evidence either direct or of conspiracy, to link him with the crime. 23. The conspiracy theory to kill Kamla Rani, only because she was not liked by her husband is far too improbable to accept since the prosecution failed to present any evidence to show meeting of minds and common intention of all accused. Ramveer may not have been happy with his wife but this by itself does not establish that he hatched a conspiracy with his brother Surendra and his father Om Prakash (who died during trial), to kill Kamla Rani. The simple fact of being unhappy with a person even if accepted, do not provide a strong enough motive to hatch a conspiracy to eliminate the person. But this aspect was ignored by the Court below to attribute motive for the murder. In our assessment the motive element in the chain of circumstances is not acceptable and the benefit of the broken link must be made available to the appellants. 24. In view of the foregoing, we are of the considered opinion that there are several missing components in the chain of circumstantial evidence and the High Court misdirected itself in finding support for conviction on such unclinching evidence. The innocence of the appellants is a distinct possibility in the present matter and when two views are possible the benefit must go to the accused. The impugned judgment is accordingly set aside with direction for immediate release of both appellants. It is ordered accordingly. 25. The appeal stands allowed with the above order. \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026J. [ROHINTON FALI NARIMAN] \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026J. B.R. GAVAI] \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026J. HRISHIKESH ROY] NEW DELHI APRIL 20, 2021", "spans": [{"start": 22, "end": 44, "label": "COURT"}, {"start": 127, "end": 153, "label": "CASENO"}, {"start": 155, "end": 169, "label": "APP"}, {"start": 197, "end": 210, "label": "RESP"}, {"start": 241, "end": 255, "label": "JUDGE"}, {"start": 760, "end": 770, "label": "DATE"}, {"start": 818, "end": 832, "label": "A.COUNSEL"}, {"start": 885, "end": 895, "label": "R.COUNSEL"}, {"start": 926, "end": 948, "label": "RESP"}, {"start": 1021, "end": 1030, "label": "DATE"}, {"start": 1034, "end": 1052, "label": "CASENO"}, {"start": 1079, "end": 1138, "label": "COURT"}, {"start": 1230, "end": 1253, "label": "STAT"}, {"start": 1283, "end": 1286, "label": "STAT"}, {"start": 1336, "end": 1339, "label": "STAT"}, {"start": 1447, "end": 1454, "label": "APP"}, {"start": 1470, "end": 1479, "label": "DATE"}, {"start": 1562, "end": 1570, "label": "DATE"}, {"start": 1688, "end": 1702, "label": "APP"}, {"start": 2037, "end": 2051, "label": "APP"}, {"start": 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{"id": "736324", "text": "CASE NO.: Special Leave Petition (civil) 14656 of 2000 PETITIONER: ALL INDIA SC & ST EMPLOYEES ASSN.& ANR. Vs. RESPONDENT: A. ARTHUR JEEN & ORS. DATE OF JUDGMENT: 12/04/2001 BENCH: S. Rajendra Babu & Shivaraj V. Patil JUDGMENT: WITH SPECIAL LEAVE PETITION (C) NO. 2377 OF 2001 J U D G M E N T Shivaraj V. Patil, J. L...I...T.......T.......T.......T.......T.......T.......T..J In these Special Leave Petitions, the judgment and order dated 10.4.2000 passed by the Division Bench of Madras High Court in Writ Petition Nos.16766-16772 of 1999, 17167, 17878, 18834 & 20598 of 1999 and 4064 of 2000 are under challenge. S.L.P. No. 14656 of 2000 is filed by the applicants in O.A. No. 93/99 before the Central Administrative Tribunal, Chennai Bench who were the respondents in the writ petition before the High Court. S.L.P. No. 2377 of 2001 is filed by the petitioners in W.P. No. 16766 of 2000 in the writ petition before the High Court. In short, the facts and events leading to filing of these Special Leave Petitions are :- The Railway Board issued Employment Notification No. 1 of 1995 dated 7.9.1995 inviting applications for 330 posts of Khalasis (Group-D) reserving 19% of posts for Scheduled Castes, 1% for Scheduled Tribes and 27% for OBCs besides 3% for Physically Handicapped and 20% for Ex-Servicemen. In response to the Notification, 58,675 applications were received, out of them 32,563 candidates were found eligible and called for interview. The Railway Board by its letter dated 17.5.1996 communicated its decision to prepare a panel for 917 vacancies on the ground of increase of vacancies from 330 to 917. The selection of candidates was to be made on viva voce test only. The candidates were interviewed from July 1996 to February 1997 by different committees. The composition of the committees was challenged in O.A. No. 28/1997 before the Central Administrative Tribunal, Chennai Bench. The Tribunal by its order dated 17.9.1997 struck down the Railway Boards instructions on the basis of which committees were constituted for interview. Thereafter the Railway board issued fresh instructions on 29.4.1998 for constituting committees as per para 179 of the Indian Railway Establishment Manual (I.R.E.M.). The second round of interviews were conducted afresh from 26.06.1998 to 28.09.1998 for 75 days by different committees. Out of 32,563 candidates, only 25,271 candidates appeared for the interview. Another O.A. No. 543/1998 was filed seeking direction that the course completed Act Apprentices should be given preference but the same was dismissed on 17.9.1998. Ultimately merit list was published on 22.12.1998 and a panel of 917 selected candidates was published in the newspapers on 30.1.1999. The candidates selected were informed about their selection. O.A. No.93 of 1999, O.A. No. 103 of 1999, O.A. No. 153 of 1999, O.A. No. 202 of 1999, O.A. No. 260 of 1999 and O.A. No. 294 of 1999 were filed before the Tribunal challenging the selection of the candidates. O.A. No. 367 of 1999 was filed by a selected candidate seeking direction to complete the process and to issue appointment. The respondents resisted these O.As. on the grounds that O.As. filed in the nature of PIL were not maintainable; the applicants could not be said to be aggrieved persons without showing whether they were members of the association and whether they applied for the said posts; all the material allegations contrary to their stand made in the O.As. were denied; that the Railway Administration did not give any particular direction or instruction in the matter of selection and that no mala fide practice was followed. It was also pleaded that there was no violation of settled procedure and guidelines; the selection was made on the basis of performance of the candidates in the viva voce; further there was no arbitrariness in the selection of candidates and that the procedure followed in the earlier selection made in 1989-90 was followed in the present selection as well. The Tribunal quashed the panel of selected candidates giving the reasons that number of vacancies originally notified were 330 but the panel of selected candidates had been drawn for 917 without earlier notifying the increase in vacancies; only 18 Physically Handicapped candidates had been selected instead of 27 candidates on the basis of 3% reservation for the entire 917 posts; instead of finding the selection zone, applications of SC/STs were received on inter-State basis and that the marking pattern in the selection in the absence of guidelines to 80% marks had led to wide variations. The Tribunal, however, noticed that allegations of mala fide and bias had not been established. Aggrieved and affected by the order of the Tribunal, the successful candidates, who were provisionally selected, filed the writ petitions in the High Court challenging the order passed by the Tribunal. The High Court, on a detailed examination of respective contentions raised by the contesting parties, held that the rule of reservation was properly followed except to the extent of shortfall by 1% in regard to the Physically Handicapped category; the procedure prescribed in para 179 of I.R.E.M. was substantially complied with; the awarding of marks in two categories to the extent of 80% was in order; that association could not agitate the case of all persons as it depended on the facts of each individual member and that no resolution of authorization to file the O.A. was produced. The High Court also observed that the Tribunal could not act as a court of appeal in appreciating the contentions urged before it. Having due regard to the long-drawn process involved in the selection of candidates, the revised assessment of vacancies coming to only 382 in Group `D for the period upto March 2002 and considering totality of facts and circumstances of the case as indicated in the order under challenge, the High Court directed the authorities to proceed with the selection made and to appoint the selected candidates in the available vacancies. It was made clear that the authority concerned should select and appoint 3% Physically Handicapped candidates out of the candidates already selected instead of 2%. Before us, Mr. K.R. Chowdhary, learned Senior Counsel appearing for petitioners in S.L.P. No. 14656 of 2000, urged that the High Court failed to appreciate that the writ petitions had become infructuous as stated in the counter affidavit filed by the respondents in view of the fact that the Indian Coach Factory (I.C.F.) Administration had accepted the order of the Tribunal and cancelled the employment notification dated 7.9.1995 itself, on 3.10.1999; after 3.10.1999 pursuant to the cancellation of the employment notification, no right subsisted to the writ petitioners before the High Court and as such the High Court committed an error in proceeding to decide the case; the High Court also committed an error in holding that there was substantial compliance of para 179 IREM; the High Court was not right in holding that non-shortlisting and not confining preference to local candidates did not affect the selection. On the other hand, Mr. A.L. Somayaji, learned Senior Counsel for petitioners in SLP No. 2377/2001, made submissions supporting the order of the High Court except to the extent of the observation made in para 34 taking note of revised assessment of vacancies coming to only 382 in Group `D for the period upto 2002, and confining appointment to the available vacancies only. Although originally the notification was issued to fill up 330 vacancies, later they were increased to 917 after getting the approval of the Railway Board for additional 587 vacancies; since as many as 58,675 applications were received, out of them 32,563 candidates were called for interview and 25,271 candidates actually attended interview including large number of local candidates, no prejudice was caused by not inviting applications for additional vacancies; as observed by the High court, selected candidates were made to run from pillar to post for one reason or the other and they were asked to appear twice for the interview in pursuance of the notification No. 1/95 and that after a long drawn process the panel of selected candidates was prepared; the Tribunal committed a serious error in quashing the panel of selected candidates in its entirety when the selected candidates were not impleaded in the O.As. On this short ground alone, the High Court ought to have granted relief to the successful candidates fully covering all the 917 candidates. The learned Senior Counsel also submitted that no mala fides or arbitrariness was found in the procedure of selection of candidates. He urged that there was no justification to reduce the vacancies to be filed from 917 to 382, having prepared and published a panel of 917 selected candidates. He added that after the High Court passed the order, some candidates have been appointed; it may not be appropriate to upset the selection of candidates at this stage. Mr. Ranjit Kumar, learned Senior Counsel appearing on behalf of the Union of India, made submissions drawing our attention to counter-affidavit filed by the Union of India and urged that the selected candidates did not acquire any indefeasible right to be appointed against the existing vacancies and the authorities are under no legal duty to fill up all or any of the vacancies and particularly so when there are no vacancies to accommodate all the candidates; the authorities accepting the decision of the Tribunal cancelled the employment notification and subsequently after the High Court passed the order, further steps were taken and about 100 out of the selected candidates are already appointed. We have given our consideration to the rival contentions urged on behalf of the contesting parties. It is clear from the counter affidavits filed on behalf of Union of India and I.C.F. Administration that after the Tribunal passed the order in O.As. on 23.8.1999 and on implementation of the decision of the Ministry of Railways to enhance the hourly rate of incentive, concurrently by reducing the allowed time and in terms of their letter No. PC-V/98/1/7/4/1 dated 21.6.1999 with effect from.1.9.1999, there was drastic reduction of vacancies leading to surrendering of 866 posts of technicians (artisans) and 327 posts of Khalasis(helpers). In the changed situation, the I.C.F. Administration decided to implement the order of the Tribunal quashing the selection and issued press notification on 3.10.1999 canceling the employment notification dated 7.9.1995 and canceling the panel of the selected candidates. After issuing employment notification on 7.9.1995 to cover further two years recruitment for subsequent years, with the approval of the Ministry of Railways in 1996, it was decided to empanel 587 more candidates in the same recruitment process. The recruitment process was getting prolonged due to litigation. A number of appointments on compassionate grounds had to be made in the intervening period; owing to the raising of the age of superannuation from 58 to 60 years by the Government, there were no retirements from May, 1998 to April, 2000; more than these, implementation of Railway Boards decision to enhance the hourly rate of incentive and reduce the allowed time by 12% resulted in reduction of vacancies both in Group `C and Group `D. Vacancies in Group `D depend on arising of vacancies in Group `C technicians cadre and the progression of Khalasis (helpers) by Khalasis against 75% of technician vacancies; because of these reasons the anticipated vacancies did not materialize and the exercise of reassessment of vacancies made in September, 1999 indicated that only 382 vacancies would be available upto March, 2002. Responding to the allegation that these facts were not brought to the notice of the Tribunal during the arguments in O.A. No. 93/99, it was pointed out that after the closing of arguments before the Tribunal and on receipt of Boards instructions dated 21.6.1999 effective from 1.9.1999, the vacancies had to be re-assessed having regard to the reduction of manpower requirements and the vacancies so reduced came to 382 for the period upto March, 2002; the variance between the vacancies notified at 330 and the revised vacancies at 382 was not much. Neither any mala fides were attributed nor any arbitrariness was established on the part of the Railway Administration in re-assessing the vacancy position. Merely because the names of the candidates were included in the panel indicating their provisional selection, they did not acquire any indefeasible right for appointment even against the existing vacancies and the State is under no legal duty to fill up all or any of the vacancies as laid down by the Constitution Bench of this Court, after referring to earlier cases in Shankarsan Dash Vs. Union of India [1991 (3) SCC 47]. Para 7 of the said judgment reads thus :- It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana vs. Subhash Chander Marwaha [(1974) 3 SCC 220], Neelima Shangla vs. State of Haryana [(1986) 4 SCC 268] or Jatendra Kumar vs. State of Punjab [(1985) 1 SCC 122]. Hence the contentions raised in SLP No. 2377/2001 are untenable. Similarly the contention that the vacancies to be filled up could not be increased to 917 from 330 originally notified without there being subsequent notification is untenable in view of the changed situation as explained above. No fault can be found with the direction of the High Court to issue appointments only to available vacancies on merit out of the candidates included in the panel of selected candidates following rules of reservation and that too reserving 3% seats to Physically Handicapped instead of 2%. 382 vacancies would be available upto March 2002 possibly as of now all the 382 candidates may not be given appointment; the appointments may be given upto 330 or less. Further, the purpose of issuing notification and giving due publicity is to provide opportunity to as many eligible candidates as possible. The employment notification No. 1/1995 was issued on 7.9.1995 and the decision was taken to increase the posts on 17.5.1996, the time gap was hardly 8 months; as many as 58,675 made applications and 32,563 were called for interview. It was quite probable that all candidates eligible and interested including large number of local candidates, applied for the posts. The time gap of about 8 months between the original notification and the decision to increase posts not being much, it cannot be said that many of the eligible candidates were deprived of applying for the posts looking to the requirements of eligibility. As already stated above, in the changed situation only 382 posts are to be filed up upto March, 2002. The selected candidates are to be appointed on the basis of merit following rules of reservation applicable to different categories. The process of selection was long-drawn and the candidates were made to appear for interview twice. The candidates and their families have been waiting for long time from 1995 with great hope of getting jobs. Enormous money and man hours have been spent in completing the process of selection in preparing the panel of selected candidates. In this view there was no justification for the Tribunal to quash the entire panel of selected candidates. Although the candidates included in the panel showing their provisional selection do not get vested right to appointment, they will be surely interested in protecting and defending the select list. It is the admitted position that before the Tribunal the successful candidates whose names were included in the panel of selection were not made parties. The argument of the learned counsel that since the names and particulars of the successful candidates included in the panel were not given, they could not be made parties, has no force. The applicants before the Tribunal could have made efforts to get the particulars; at least they ought to have impleaded some of the successful candidates may be in a representative capacity; if the large number of candidates were there and if there was any difficulty in service of notices on them, they could have taken appropriate steps to serve them by any one of the modes permissible in law with the leave of the Tribunal. This Court in Prabodh Verma and Ors. Vs. State of Uttar Pradesh & Ors. [1984 (4) SCC 251] has held that in writ petitions filed against the State questioning the validity of recruitment of a large number of persons in service could not be proceeded with to hear and take decision adverse to those affected persons without getting them or their representatives impleaded as parties. In para 50 of the said judgment, summarizing the conclusions this Court in regard to impleading of respondents has stated that :- A High Court ought not to hear and dispose of a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents or at least some of them being before it as respondents in a representative capacity if their number is too large to join them as respondents individually, and, if the petitioners refuse to so join them, the High court ought to dismiss the petition for non-joinder of necessary parties. This court in para 4 of the judgment in A.M.S. Sushanth & Ors. Vs. M.Sujatha & Ors. (2000 (10) SCC 197) has stated thus:- We find that none of the persons who were selected and whose appointments were set aside by the High Court had been impleaded as a party-respondent. It appears that a public notice was given in a representative capacity only with regard to the appointment to the post of Assistant Sericulture Officer. The direction of the High Court, however, is not confined to that post alone and it is the appointments to the other posts also which have been set aside. This could not be done. The principles of natural justice demanded that any person who was going to be adversely affected by the order should have had an opportunity of being heard. That apart, one would have expected the High Court to have considered the report submitted under Section 65 on its merits and then decided whether the said report should be accepted or not. Be that as it may, on the facts and in the circumstances of the present cases, we do not find any merit in any one of the contentions urged on behalf of the petitioners in S.L.P. No. 14656 of 2000. The High Court found that rules of reservation in regard to all other categories were followed and the Tribunal also found so; as regards Physically Handicapped, the reservation was to be increased to 3% instead of 2% among the candidates included in the panel on the basis of merits. Hence the grievance as to increase of posts from 330 to 917 without issuing notification was of no consequence. It is also noticed by the High Court that the large number of applications were received and interviewed including a large number of local candidates; the employment notification of 95 had been published in the employment exchanges in Chennai, Kanchipuram and Tiruvallur of the local unit of I.C.F., Chennai. Further it is also stated in the counter affidavit that the upper age limit itself has been raised upto to 33 years besides relaxation in the age limit for reserved community candidates and P.H./Ex.Servicemen etc. In our view, no prejudice was caused to the petitioners in S.L.P. No. 14656/2000. In regard to the other contention that 80% marks were awarded to the candidates without any guidelines, the High Court has taken the view that there was no arbitrariness in awarding 80% marks under two heads. We will do well to remember that The candidates were interviewed for Group `D posts (Khalasis); the selection was to be made only on the basis of viva voce test. The marks were to be awarded under the four heads as stated below.i) Personality / address - 40 marks ii) Ability to do the job - 40 marks. iii) Technical / academic qualification-10 marks. iv) Sports etc. - 10 marks. Under the head ability to do the job, marks to be awarded was on the basis of the candidates ability to lift a weight of 35 kg. without any physical strain. Marks were to be awarded looking to the technical /academic qualifications; so also for sports and marks were to be awarded for personality and address. Having regard to the nature of different heads for which marks were to be awarded that too for filling up Group D posts of Khalasis, it cannot be said that there could be wide variance or arbitrariness in awarding narks. The procedure followed in viva voce test is again indicated in the reply statement filed on behalf of the Railway Administration before the Tribunal itself. It is stated that the interview was conducted by 3 committees with 4 members each representing SC/ST/Minority/OBC for 75 days. To maintain secrecy, a system which was evolved in the previous selection with the approval of the then Chief Personnel Officer (CPO) in the year 1989-90 for nomination of the Committee Members was adopted this time also, as detailed below:- On the previous day afternoon, the three selection committees with four officers will be formed by Deputy Chief Personnel Officer/General [Dy. CPO/G] with due representation of SC/ST/OBC/Minority. These 12 officers will be intimated over phone by Dy. CPO/G or through his Confidential Assistant without mentioning which committee they belong to. The sealed cover containing three committees will be handed over to Senor Personnel Officer/Recruitment and training (SPO/R&T) and the same will be opened by SPO/R&T in the presence of the all twelve officers on the day of viva voce after getting signature from one or two offices on the sealed cover to acknowledge that the sealed cover is in tact. On the first two days [viz. 22nd and 23rd June 1998] CPO has nominated the committees. Thereafter the Dy. CPO/G. had nominated the committees. In pursuance there of, the committee members will take position in their respective committee rooms allocated and conduct the interviews. After the closure of the interview, on each day, the signed mark statements of each committee will be kept in a cover duly signed by the officers in the outer cover and sealed. These sealed covers will be handed over to Dy. CPO/G by the Personal Officer of the respective committee, for safe custody. In the absence of Dy. CPO/G, SPO/R&T will receive and hand over the same to Dy. CPO/G, when he resumes duty. After the interview were over, a decision was taken to hand over the mark statement in 220 sealed covers to Railway Recruitment board/Chennai[RRB] for data entry and form a draft panel following all the reservation rules for SC/ST/OBC etc. The 220 sealed covers were taken to RRB by D.DPO/G and SPO/R&T in 2 sealed boxes and handed over on 12.10.1998. On 22.12.1998, the RRB returned the mark lists along with the merit lists an a floppy containing date for all the 25,271 candidates. The data entries were verified and a panel of 917 selected candidates formed with CPOs approval, after following the reservation rules for SC/ST/OBC/Physically Handicapped and Ex- servicemen. Thereafter, the panel was published in the Newspapers viz, Indian Express and Daily Thanthi on 30.01.1999. Simultaneously, the successful candidates were informed that they have been provisionally selected for Gr. D posts and further action will follow in due course. At this stage, the applicants have filed the present OA and this Honble Tribunal on 08.02.1999 passed an order directing the respondents to maintain `statusquo. S.L.P. No. 14656 of 2000 is filed by the petitioners in O.A. No. 93 of 1999 before the Tribunal. In the said O.A., petitioner no. 1 was an association named All India Scheduled Caste and Scheduled Tribe Employees Association and petitioner no. 2 was an individual. The High Court has held that such a writ petition filed by an association was not maintainable. In our view it is unnecessary to examine this question in the light of conclusion reached on the merits of the respective contentions. The contention urged on behalf of the petitioners in S.L.P. No. 14656 of 2000 that the writ petitions had become infructuous in view of the fact that I.F.C. Administration itself had cancelled the employment notification No. 1 of 1995 dated 7.9.1995 accepting the judgment of the Tribunal cannot be accepted. The selected candidates who were seriously affected had every right to challenge the decision of the Tribunal on all the grounds available to them. The I.C.F. administration by its decision to cancel the employment notification and the panel of selected candidates unilaterally could not defeat or destroy the interest of the successful candidates. It is also submitted before us that the I.C.F. Administration pursuant to the judgment of the High court passed in the writ petitions has given appointment to about 100 candidates from out of the panel of the selected candidates. This being the position, we are of the view that the writ petitions had not become infructuous. The High Court has also noticed that those candidates who had participated in the interview could not challenge the selection before the Tribunal. Thus having regard to all aspects including the changed situation as to the reduction of vacancies from 917 to 382 on the basis of the revised assessment of vacancies as already stated above, the impugned order passed by the High Court is just and appropriate. In the light of what is stated above, we do not find any justification or valid reason to interfere with the impugned order passed by the High Court. Therefore, both the S.L.Ps. being devoid of any merit are liable to be dismissed. 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{"id": "1243363", "text": "CASE NO.: Appeal (civil) 2589 of 2000 PETITIONER: JAYA GOKUL EDUCATIONAL TRUST RESPONDENT: COMMNR. & SECY. GOVERNMENT HIGHER EDUCATION DEPTT. THIRUVANANTHAPURAM, KERALA STATE AND ANR. DATE OF JUDGMENT: 11/04/2000 BENCH: M. JAGANNADHA RAO & M.B. SHAH JUDGMENT: JUDGMENT 2000 (2) SCR 1234 The following Judgment/Order of the Court was delivered : M. JAGANNADHA RAO, J. Leave granted. The appellant is a trust which wanted to establish a self-financing Engineering College and submitted an application during 1994-95 to the University of Kerala as well as to All India Council for Technical Education (hereinafter called the 'AICTE') There was an inspection by a team of Professors of the University and it recommended favourably when it stated that the facilities provided by the appellant would be sufficient for establish-ing an Engineering College. The AICTE sent a communication on 30.4.1995 stating that on the basis of the observations made by the Expert Committee and the recommendations made by the Central Regional Committee, State Level Committee and Central Task Force as per the provisions of the AICTE regulation dated 30.1.1994, the AICTE was granting conditional approval for establishing an Engineering and Technical College. The abovesaid approval was subject to the fulfilment of specific conditions mentioned in Annexure I and the general conditions mentioned in Annexure II to the said letter. In the event of contravention of the conditions, guidelines, norms and regula-tions of the AICTE, the AICTE could withdraw the approval at any time. Under the impression that the State Govt. was to grant permission, the appellant requested the State Government by letter dated 24.6.1995 for permission to start the college. Meanwhile, the Mahatama Gandhi University by their letter dated 31.5.1995 forwarded to the Government a list of Colleges and Courses for affiliation during the academic year 1995-96. The appellant's college was shown as one of the colleges among the affiliated colleges for the said period. The appellant sent a reminder to the Government on 26.8.1995 for permission for starting the college for the academic year 1995-96 and ultimately the Government refused permission by informing the appellant by a letter dated 16.8.1996 as follows : \"In inviting your attention to the reference cited, I am to inform you that Government regret their inability to comply with your request.\" Thereafter, the appellant filed writ petition O.P. No. 4612 of 1996 for quashing the said order and for a direction to sanction and establish an Engineering College. The learned Single Judge of the High Court by his judgment dated 14.1.1997 allowed the writ petition, quashed the above-said order of the government dated 16.8.1996 and directed the Mahatama Gandhi University to consider the appellant's application for permanent affiliation without reference to the above letter of the Government and pass appropriate order within 8 weeks from the date of the receipt of a copy of the judgment. The direction to pass a fresh order of affiliation was issued in view of the fact that the University contended before the learned Single Judge that unless the Government granted approval, permanent affiliation could not be granted. The Government was also directed to reconsider its decision. Against the said judgment of the learned Single Judge the Commis-sioner and Secretary of the Government (Higher Education Department) filed Writ Appeal No. 1024 of 1997. The Division Bench of the High Court allowed the appeal and set aside the order of the Government and dismissed the writ petition. The Division Bench, however, observed that the appellant was at liberty to make a fresh application to the Government of Kerala for according sanction for setting up the Engineering College or to request the Government to consider the earlier application, for a future academic year. It is against the abovesaid judgment of the Division Bench that this appeal has been preferred. Learned senior counsel for the appellant Sri T.L. Vishwanatha Iyer contended that the Division Bench erred in reversing the well considered judgment of the learned Single Judge and according to him after the coming into force of the AICTE Act, 1987, the statutes conferring power on the State or University to the extent they were inconsistent with the Central Act were void. In so far as institutions imparting technical education were concerned, the University or the State Government had no independent role to play except to the extent provided in the above said enactment, in the present case, the AICTE had made inspections and was satisfied that the necessary infrastructure was available and that the appellant would be able to conform to the required standards of the education. The AICTE had consulted the State of Kerala as well as the Mahatama Gandhi University. The University had granted conditional approval, as stated earlier. Therefore the AICTE consti-tuted a Task Force and obtained its opinion and thereafter granted its approval on 13.11.1995 subject to various conditions. According to the learned senior counsel it was indeed not necessary for the appellant to have applied to the State Government for any further sanction to establish the college. It might be that under the relevant statutes of the University, the University was required to obtain the \"views\" of the State Government but that did not amount to requiring any approval of the State Government and indeed if any such statute required the approval of the state Government, it would be void in view of what was stated by this Court in State of Tamil Nadu & Another v. Adhiyaman Educational & Research Institute & Others,[l995] 4 SCC 104. Learned senior counsel for the appellant Sri T.L. Viswanatha Iyer also contended that though the State Government stated in its counter affidavit filed in the High Court that the \"policy\" of the Government was not to grant approval to self-financing engineering colleges to be established, such a policy could not come in the way of the appellant in view of what this Court has stated in similar circumstances in Thirumuruga Kirupan & Variyar Thavathiru Sundara Swamigal Medical Education & Charitable Trust v. State of Tamil Nadu & Others, [1996] 3 SCC 15. On the other hand learned Additional Solicitor General Sri Mukul Rohtagi contended on behalf of the State of Kerala that the \"Policy\" of the State of Kerala at the relevant time was not to grant approval for establish-ment of more engineering colleges in the State. The Government had clarified in the counter affidavit filed in the High Court that the Government \"was not in a position\" to take a decision to start new engineering colleges, without properly assessing the necessity of more engineering graduates from the State and without exploring the possibility of employment opportunities in the country as a whole. Also there were four Engineering Colleges at Kannur, Trichur, Kottayam and Thiruvananthapuram Districts and three Private (Aided) Engineering Colleges at Palakkad, Ernakulam (Kothamangalam) and Kollam Districts. The Model Engineering College, Emakulam was a self- financing Engineering College and others were the colleges at Changannur and Pathansamthitta and there was a self-financing engineering college at Kasargode. There were also two unaided Engineering Colleges at Mallappuram and Thiruvananthapuram. Even though the appellant trust was not seeking aid from the Government and even assuming that it was financially self-suffi- cient, it would not be in the interests of the students & employment, to permit new engineering colleges to be established. Thus the Government policy was not to grant fresh approvals. If more approvals were granted, it might lead to commercialisation of education. The following points arise for consideration : (1) Whether in view of the judgment of this Court in State of Tamil Nadu & Another v. Adhiyaman Educational & Research Institute & Others, [1995] 4 SCC 104, the provisions of the AICTE Act, 1987 occupied the field and it was not necessary to obtain the further approval of the Government or other authority? Whether any statute in the State of Kerala if it required such approval, would be void? (2) Whether the orders of rejection passed by the State Government were valid on merits and whether the University should have granted further orders to continue the affiliation solely on the basis of the AICTE permission? Point 1 : This point is more or less covered by the judgment of this Court in State of Tamil Nadu & Another v. Adhiyaman Educational & Research Institute & Others,[l995] 4 SCC 104. But, in the context of section 10(K) regarding 'approval' for starting a technical institution, certain aspects of the judgment need to be highlighted. Before we refer to the abovesaid judgment, it will be necessary to refer to certain provisions of the AICTE Act and the relevant regulations. The abovesaid Act was an act to provide for the establishment of All India Council for Technical Education with a view to the proper planning and coordinated development of the technical education system throughout the country, the promotion of qualitative improvement of such education in relation to planned quantitative growth and the regulation and proper main- tenance of norms and standards in the technical education system and for matters connected therewith. Under section 10 of the Act, it is stated that it is the duty of the Council constituted under the Act to take all steps as the said Council might think fit for ensuring coordinated and integrated develop-ment of technical education and maintenance of standards. For the purposes of performing its functions under the Act, the Council may (a) undertake survey in various fields of technical education, collect data on all related matters and make forecast of the needed growth and development in technical education; (b) coordinate the development of technical education in the country at all levels; (c) allocate and disburse out of the Fund of the Council such grants on such terms and conditions as it may think fit to - (i) technical institutions, and (ii) Universities imparting technical education in coordination with the Commission; (d) promote innovations, research and development in established and new technologies, generation adoption and adaptation of new technologies to meet developmental requirements and for overall improve-ment of educational processes; (e) formulate schemes for promoting technical education for women, handicapped and weaker sections of the society; (f) promote an effective link between technical education system and other relevant systems including research and development organisations, industry and the community; (g) evolve suitable performance appraisal systems for technical institutions and Universities imparting technical education, incorpo-rating norms and mechanisms for enforcing accountability; (h) formulate schemes for the initial and in-service training of teachers and identify institutions or centres and set up new centres for offering staff development programmes including continuing education of teachers; (i) lay down norms and standards for courses, curricula, physical and instructional facilities, staff pattern, staff qualifications, quality instructions, assessment and examinations (j) fix norms and guidelines for charging tuition and other fees. The clause in Section 10(1) which is important in the present case is sub- clause (k) of section 10(1) and it provides that the Council might \"grant approval for starting new technical institutions and for intro- duction of new courses or programmes in consultation with the agencies concerned.\" Sub-clause (1) permits the Council to advice the Central Government in certain respects, sub-clause (m) lay down norms for granting autonomy, sub- clause (n) to take necessary steps to prevent commercialisation of technical education, clause (o) to provide guidelines for admission of students to technical institutions and Universities imparting technical education, clause (p) to inspect or cause inspection to any technical institution, clause (q) to withhold or discontinue grant, clause (r) to strengthen the existing organisa-tions etc., clause (s) to declare technical institutions as fit to receive grants, clause (t) to advice for declaring institutions to be deemed as universities, clause (u) to set up a National Board of Accreditation. Section 11 of the Act deals with inspection. Regulations have been framed on 31st October, 1994 by the AICTE in exercise of powers conferred on it by section 23(1) of the AICTE Act. Regulation 2 states that these regulations will be applicable to proposals relating to \"(a) grant of approval of the Council for establishment of new technical institutions including Universities or University depart-ments and deemed Universities and for technical institutions function-ing on the date of commencement of these regulations at Degree and Diploma levels; (b) grant of approval of the Council for introduction of any course or programme in the technical institutions and technical departments or Universities or deemed Universities; (c) grant of approval of the Council for existing intake capacity of seats and for increase in the annual intake capacity of seats in courses and programmes.\" Regulation 4 deals with the requirement of grant of approval and for the commencement of these regulations \"(a)............................. (b) no course or programme shall be introduced in any technical institutions, university or deemed university or university departments or college; or (c) no technical institutions, Universities or deemed Universities or University Departments or colleges shall continue to admit students for degree or diploma courses or programmes; (d) no approved intake capacity of seats shall be increased or varied : except with the approval of the Council. Reg.. 4(2).........................\" Regulation 5 deals with the Forms of the Applications and Regulation 6 deals with the conditions for grant of approval, Sub-clauses 1 of Regulation 6 deals with the financial position. Sub-clause 2 with the courses or programmes and sub-clause 3 deals with the power of admissions and sub-clause 4 with tuition fees etc. and sub-clause 5 with the staff and sub-clause 6 with the Governing Body of the private institutions and sub- clause 7 with other matters. Regulation 8 deals with scrutiny of applications. There is a prelimi-nary scrutiny of the applications by the Bureau RC of the Council. Sub-clause 4 of Regulation 8 reads as follows : \"Reg. 8(4) The Bureau RC shall invite comments/recommendations on the applications referred to in sub-regulation (3) from the follow-ing, namely : (i) the State Government concerned ; (ii) the affiliating University/State Board of Technical Education; (iii) Bureaus MPCD; (iv) Bureau BOS; (v) Bureau RA; (vi) the Regional Office.\" Sub-clause 5 of Regulation 8 requires the Regional Office to arrange visits by an Expert Committee constituted by the Council which is to forward its recommendations to the Council. Sub-clause 6 of Regulation 8 states that the State Level Committee constituted under Regulation 9(4) is to consider the recommendations of the State Government and others mentioned in regulation 8(4) and that it is to make its recommendations to the Central Task Force constituted under regulation 9(5) and consider the recommendations of the State Level Committee and send its recommendations to the Member Secretary of the Council. Sub-clauses 8 & 9 of Regulation 8 are important and read as follows : \"Reg. 8(8) If there is a disagreement in the recommendations made by the State Government, University or the Regional Committee, the Central Task Force shall invite representatives of the respective agencies for further consultations before making final recommenda-tion; (9) On the recommendation of the Central Task Force, the Council shall decide the question of grant of approval as sought for in the application : Provided that the Council may, for reasons to be communicated to the applicant, allow the approval with such restrictions or modifications as it may deem necessary.\" Sub-clause 10 of Regulation 8 states that the decision of the Council shall be communicated to the State Government concerned or the UGC, as the case may be, the concerned University or the State Board, the Regional Office and the applicant before 30th April in case the application was made before the preceding 31st December. The Tamil Nadu case : As stated earlier, the above provisions of the AICTE Act, came up for consideration in State of Tamil Nadu v. Adhiyaman Educational & Research Institute, [1995] 4 SCC 104. In the above matter, the State of Tamil Nadu granted permission on 17.4.84 to all private managements to start private Engineering colleges without financial commitment to government but subject to conditions. At that time in 1984, the AICTE Act was not on the statute book. The Government of Tamil Nadu granted permission to the Trust for the academic year 1987-88 to start an Engineering college. The University also granted permission on 21.11.87 for the academic year 1987-88. Later on, these permissions were withdrawn by the State after issuing show cause on 16.7.89. So did the University on 26.7.89. But by that date, the AICTE Act, 1987 had come into force. The learned Single Judge and the Division Bench held in favour of the Trust and quashed and orders of the Government and the University. The said judgments were affirmed by this Court. It was held that the AICTE Act was referable to Entry 66, List I of the Constitution of India, relating to \"co- ordination and determination of standards in institutions for higher education or research and scientific and technical institutions\". After the Constitutional Amendment (42 Amendment Act, 1976) Entry 25 of List III in the Concurrent List read : \"Education, included technical education, medical institution and Universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I; vocational and technical training of labour\". Thus, the State law under Entry 23 of List III would be repugnant to any law made by the Parliament under Entry 66 of List I, to the extent of inconsistency. The Tamil Nadu Act was of 1976 and the University Act was of 1923 and were laws referable to the List III. Whether they were pre- constitutional or a post constitutional laws, they would be repugnant to the AICTE Act passed by Parliament under Entry 66 of List I. In the above case this Court referred to the various provisions of the AICTE Act and on the question of repugnancy held (see p. 120 SCC) as follows : \"Hence on the subjects covered by the statute, the State could not make a law under Entry 25 of List III after the Forty-Second Amendment. If there was any such existing law immediately before the commencement of the Constitution within the meaning of Article 372 of the Constitution, as the Madras University Act 1923 on the enactment of the present Central Act, the provisions of the said law if repugnant to the provisions of the Central Act would stand impliedly repealed to the extent of repugnancy. Such repugnancy would have to be adjudged on the basis of the tests which are applied for adjudging repugnancy under Article 254 of the Constitution\". We shall now refer to the relevant paras of the above judgment dealing with the question of 'approval' for establishing technical institutions under section 10(K) of the AICTE Act. The Tamil Nadu Rules of 1976 made under the 1976 Act had no doubt excluded technical institutions from the purview of the Rules but this Court pointed out that the Rules were capable of being amended so as to extend to such technical institutions and that if they were so extended, the State Act of 1976 and the Rules would require \"approval' by the State Government and that would be void. It was stated (see p. 124 SCC) that inasmuch as the State Act, \"will overlap and will be in conflict with the provisions of the Central Act in various areas........., granting approval for starting new technical institution........., inspection of technical institution ............which are matters covered by the Central Act.\" This Court then referred to the Madras University Act, 1923. It was held (see p. 126 SCC) that section 10 of the Central Act dealt with various matters (including granting approval for starting new technical institutions), and that so far as these matters were concerned. \"it is not the University Act and the University but it is the Central Act and the Council created under it which will have the jurisdiction. To that extent, after the coming into force of the Central Act, the provisions of the University Act will be deemed to have become unenforceable\". Thus, in the two passages set out above, this Court clearly held that because of section 10(k) of the Central Act which vested the powers of granting approval in the Council, the T.N. Act of 1976 and the University Act, 1923 could not deal with any questions of 'approval' for establishment of technical institutions. All that was necessary was that under the Regulations, the AICTE Council had to consult them. Statutory powers of the State of Kerala and the M.G. University : The question is as to how far the judgment in the Tamil Nadu case is to be applied in the State of Kerala. Learned Additional Solicitor General stated before us that there was no statute in the State of Kerala corresponding to the Tamil Nadu Act of 1976 nor any other law which specifically required the 'approval' of the State Government. It was however contended that the Tamil Nadu case was concerned only with the standards of education and as to who could fix them. We are not inclined to agree. We have already pointed out under Point 1 that in the Tamil Nadu case, section 10(k) of the AICTE Act was referred to and the power of 'approval' for establishing a technical institution was consid- ered, in our opinion, even if there was a State law in the State of Kerala which required the approval of the State Government for establishing technical institutions, such a law would have been repugnant to the AICTE Act and void to that extent, as held in the Tamil Nadu case. The only provision relied on before us by the State Government which according to its learned senior counsel, amounted to a statutory requirement of 'approval' of the State Government, was the one contained in clause 9(7) of the Kerala University First Statute. It reads as follows : \"(9) Grant of affiliation : (1)..................... (3)..................... (7) After considering the report of the Commission and the report of the local inquiry, if any, and after making such further inquiry as it may deem necessary, the Syndicate shall decide, after ascer-taining the view of the Government also, whether the affiliation be granted or refused, either in whole or part. In case affiliation is granted, the fact shall be reported to the Senate at its next meet-ing :\" It will be noticed that clause 9(7) of the statute required that before the University took a decision on \"affiliation\", it had to ascertain the \"views\" of the State Government. The reference to the Commission in the above clause 9(7) is to the Commission of Inspection appointed by the University. Sub-clause (1) of clause (9) of the statute required \"verification of the facilities that may exist for starting the new colleges/course\". The Commission was to inspect the site, verify the title deeds as regards the proprietary right of the management over the land (and buildings, if any) offered, building accommodation provided, if any, assets of the management, constitution of the registered body and all other relevant matters, Sub-clause (2) of clause (9) stated that the affiliation \"shall depend upon the fulfilment by the management of all the conditions for the satisfactory establishment and maintenance of the proposed institutional courses of studies and on the reports of inspection by the Commission or Commissions which the University may appoint for the purpose\". As held in the Tamil Nadu case, the Central Act of 1987 and in particular, section 10(k) occupied the field relating the 'grant of approvals' for establishing technical institutions and the provisions of the Central Act alone were to be complied with. So far as the provisions of the Mahatma Gandhi University Act or its statutes were concerned and in particular statute 9(7), they merely required the University to obtain the 'views' of the State Government. That could not be characterised as requiring the \"approval' of the State Government. If, indeed, the University statute could be so inter-preted, such a provision requiring approval of the State Government would be repugnant to the provisions of section 10(k) of the AICTE Act, 1987 and would again be void. As pointed out in the Tamil Nadu case there were enough provisions in the Central Act for consultation by the Council of the AICTE with various agencies, including the State Governments and the Universities concerned. The State Level Committee and the Central Regional Committees contained various experts and State representatives. In case of difference of opinion as between the various consultees, the AICTE would have to go by the views of the Central Task Force. These were sufficient safeguards for ascertaining the views of the State Governments and the Universities. No doubt the question of affiliation was a different matter and was not covered by the Central Act but in the Tamil Nadu case, it was held that the University could not impose any conditions inconsistent with the AICTE Act or its Regulation or the conditions imposed by the AICTE. Therefore, the procedure for obtaining the affiliation and any conditions which could be imposed by the University, could not be inconsistent with the provisions of the Central Act. The University could not, therefore, in any event have sought for 'approval' of the State Government. Thus we hold, in the present case that there was no statutory require-ment for obtaining the approval of the State Government and even if there was one, it would have been repugnant to the AICTE Act. The University statute 9(7) merely required that the 'views' of the State Government be obtained before granting affiliation and this did not amount to obtaining 'approval'. If the University statute required 'approval', it would have been repugnant to the AICTE Act. Point 1 is decided accordingly. Point 2 : Factual position and pleadings in this case : On facts, the position was that the AICTE had granted approval on 30.4.95 expressly stating that this was \"on consideration of the observations made by the Expert Committee and the recommendations made by the Central Regional Committee, State Level Committee, Central Task Force as per the provisions of AICTE Regulations dated 31.10.94\". The AICTE had granted condition approval and the conditions were specified in Annexure I to the order and the general conditions were enlisted in Annexure II. The State Government was directed by the AICTE to announce admission in accordance with Regulation notified on 20.5.94 and based on the judgment of the Supreme Court in Unnikrishnan v. State of Andhra Pradesh, [1993] 1 SCC 645. The Mahatma Gandhi University had included this appellant in the list of colleges and courses which were granted affiliation during 1995-96 and the University had written to the State Government on 31.5.95 that as per statute 9(7), the \"views\" of the government were to be sent before granting affili-ation. The letter said that for that reason the proposals of the University were being submitted to the Government \"for necessary action\". The appellant had sent a reminder on 26.8.95. The State in its letter dated 16.8.96 to the appellant merely stated \"that government regret their inability to comply with your request\". No reasons were assigned in the said letter. But the State in its counter filed in the High Court tried to explain in para 3 that the Director of Technical Education had opined that during the year 1995-96, it might not be practicable to start the college for the Director could not ascertain the details of the facilities available. It was stated : \"he could not ascertain the infrastructural facilities provided by the appellant as per the norms prescribed by the All India Council of Technical Education. The All India Council for Technical Education and the Mahatma Gandhi University have sought for the remarks of the State Government. Para 4 of the Counter affidavit had further stated that the Government was not \"in a position to take a decision to start new Engineering college without properly assessing the necessity of more engineering gradu-ates in the State and exploring the possibility of employment oppor-tunity in the country to the extent possible\". The State Government in its counter then gave the names of the existing colleges and their location. We have already referred to these details. It also observed that there was widespread student prospects against starting new colleges and it was necessary to be cautious in the matter of starting new engineering colleges. It was stated that Government could not initially take a decision on the appellant's affiliation because of elections and that matter being one of 'major policy' the Government had subsequently \"taken a policy decision not to sanction any affiliation to such colleges either in the private sector or in the public sector for this year\". These are stated to be the reasons for the government's rejection by letter dated 16.8.96. State Government's refusal to grant permission is illegal and void on merits : As already stated, in view of the judgment of this Court in Tamil Nadu case, it is obvious that there is no need to approach the State of Kerala for its approval for starting the Engineering colleges. There is no power vested in the State under any State Law to grant approval and even if it was so vested, it would have been void in view of Tamil Nadu case. This ground of repugnancy alone would be sufficient to quash the State Government's letter dated 16.8.1996 refusing to give their approval. Even on merits, the reasons given by the State Government in its counter are not tenable in law. The Director of Technical Education of the State was a member of the State Level Committee as per regulation 9(4) of the AICTE Regulations. The Secretary, Technical Education of the State of Kerala was also a member of that Committee. The AICTE's approval dated 30.4.95 showed that the approval had been given by the State Level Com-mittee of which they were obviously members. It is, therefore, not under-standable how the Director had given a contrary opinion to the State Government. Regulation 8(4) of AICTE only required calling for the \"com-ments/recommendations\" of the State Government and of the University. In case, there was difference between the State Government, University or the Regional Committee the Central Task Force was to make a final recommen-dation under Regulation 8(4). Here the letter of approval of the AICTE dated 30.4.95 showed that the Central Task Force had given its approval. The said approval was based also on the inspection by the Expert Committee of the AICTE. Hence the State Government in its counter, could not have relied upon any contrary opinion of the Director of Technical Education. If the State Government had any other valid objections, its only remedy was to place its objections before the AICTE Council under the AICTE Act or before the Committees, e.g. State Level Committee etc. The so called 'policy' of the State as mentioned in the counter affidavit filed in the High Court was not a ground for refusing approval. In Thirwnuruga Kirupan and Variyar Thavathiru Sundara Swamigal Medical Education & Charitable Trust v. State of Tamil Nadu & Others, [1996] 3 SCC 15, which was a case relating to Medical Education and which also related to the effect of a Central Law upon a law made by the State under Entry 25 List III, it was held (see p. 35 para 34) that the \"essentiality certificate cannot be withheld by the State Government on any policy consideration because the policy in the matter of establishment of a new medical college now vests with the Central Government alone\". Therefore, the State could not have any \"policy\" outside the AICTE Act and indeed if it had a policy, it should have placed the same before the AICTE and that too before the latter granted permission. Once that procedure laid down in the AICTE Act and regulations had been followed under Regulation 8(4), and the Central Task Force had also given its favourable recommendations, there was no scope for any further objection or approval by the State. We may however add that if thereafter, any fresh facts came to light after an approval was granted by the AICTE or if the State felt that some conditions attached to the permission and required by the AICTE to be complied with, were not complied with, then the State government could always write to the AICTE, to enable the latter to take appropriate action. Decision of University in not granting further or fined affiliation wrong on merits : Admittedly, the University's inspection report was in favour of the appellant. This is clear from the appellant's letter dated 31.5.95 to the State Government. The only requirement as per the statute 9(7) was for the University to obtain the \"views\" of the State Government. Obtaining the 'views' of the State Government, as already stated, did not amount to obtaining its 'approval'. Procedure and conditions for affiliation could not be inconsistent with the provisions of the Central Act, in particular section 10(k) of the Regulation, and the University could not seek approval of Government. The University was also one of the agencies consulted by the council of the AICTE under Regulation 8. Once that was over, and approval was granted by the AICTE, if there was any default on the part of the College in compliance with the conditions of approval, the only remedy for the Univer-sity was to bring those facts to the notice of the AICTE so that the latter could take appropriate action. Reliance for the respondent was placed upon the subsequent report of the Syndicate dated 7.8.97. This report no doubt pointed out that the appellant had not complied with certain conditions mentioned in the approval dated 30.4.95 granted by the AICTE. Assuming certain fresh facts had come to the notice of the University, it could only place the said facts before the AICTE. Thus, the University ought to have considered the grant of final or further affiliation without waiting for any approval from the State Govern-ment and should have acted on the basis of the permission granted by AICTE and other relevant factors in the University Act or statutes, which are not inconsistent with the AICTE Act or its Regulations. For the aforesaid reasons, we set aside the judgment of the Division Bench of the High Court and uphold the reasoning of the learned Single Judge in his judgment in OP - 4612/96 dated 14.1.1997. We hold that the approval of the AICTE was sufficient, we do not also think that it was necessary for the learned Single Judge to direct the State Government to reconsider its decision. The learned Single Judge's order quashing the letter of the State Government dated 16.8.96 is upheld. The direction to the Mahatama Gandhi University to consider the application of the appellant for final affiliation or continuance of affiliation is confirmed and this is to be done on the basis of the approval granted by the AICTE dated 30.4.95, or any other relevant factors in the University Act or its statutes, which are not inconsistent with the AICTE Act or its Regulations. The appeal is allowed and disposed of as stated above. There will be no order as to costs. M. JAGANNADHA RAO, J. The petitioner was not a party in the High Court of Kerala and this Special Leave Petition was filed with leave of this Court. We find that the petitioner has already filed a Writ Petition in the Delhi High Court namely CWP No. 952 of 1998 and the same is pending. It will be for the petitioner to have the said matter disposed of by the High Court of Delhi. 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{"id": "154395703", "text": "1 APL823.16+1.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY : NAGPUR BENCH : NAGPUR. CRIMINAL APPLICATION (APL) NO. 823 OF 2016 AND CRIMINAL APPLICATION (APL) NO. 209 OF 2017 ............... Criminal Application (APL) No. 823 of 2016 APPLICANT : Bharat Bhushan S/o Vipin Chouguley, Aged 65 years, Occu. Professional , R/o Jaika Apartments, Civil Lines, Nagpur - 440 001. VERSUS RESPONDENTS: 1] State of Maharashtra, through its Secretary, Ministry of Home, Mumbai - 400 032. 2] State of Maharashtra, Through Sub-Inspector of Police Station, Sadar, Nagpur. 3] Smt. Rachana Sanjay Singh, Age 50 years, R/o 9, Mecosabagh, Christian Colony, Kadbi Chowk, Jaripatka, Nagpur. ---------------------------------------------------------------------------------------------- Shri Ranjeet B. Chougulay, Advocate for the applicant Smt. S. S. Jachak , A. P. P. for non-applicant nos.1 and 2 Shri U. P. Dable, Advocate for non-applicant no.3 ---------------------------------------------------------------------------------------------- With Criminal Application (APL) No. 209 of 2017 APPLICANT : Prashant S/o Ashok Satralkar, Aged 45 years, R/o All Saints House compound, Opp VCA, Nagpur - 440 001. 2 APL823.16+1.odt VERSUS RESPONDENTS: 1] State of Maharashtra, through its Secretary, Ministry of Home, Mantralaya, Mumbai - 32. 2] Deputy Commissioner of Police, Sadar Zone, Nagpur. 3] Assistant Commissioner of Police, Sadar Zone, Nagpur. 4] State of Maharashtra, through Sub-Inspector of Police Station, Sadar, Nagpur - 440 001. 5] Smt. Rachana Sanjay Singh, Head Mistress, St. Ursula's Girls High School, Civil Lines, Nagpur - 440 001. ---------------------------------------------------------------------------------------------- Shri Rohit R. Chouguley, Advocate for the applicant Smt. S. S. Jachak , A. P. P. for non-applicant nos.1 to 4 Shri U. P. Dable, Advocate for non-applicant no.5 ---------------------------------------------------------------------------------------------- CORAM : PRASANNA B. VARALE and ARUN D. UPADHYE, JJ. DATE : NOVEMBER 09, 2017. ORAL JUDGMENT (Per Prasanna B. Varale, J). 1] Heard Shri R.B. Chouguley and Shri R.R.Chouguley, learned counsel for the applicants, Smt. S.S. Jachak, the learned Additional Public Prosecutor for non-applicant nos.1 and 2 and non- applicant nos.1 to 4, in respectiv applications and Shri U.B. Dable, 3 APL823.16+1.odt learned counsel for non-applicant/complainant-Smt. Rachana Singh. 2] ADMIT. 3] Both these applications seek quashment of the First Information Report No. 270/2016, dated 26.09.2016, lodged at Police Station, Sadar, Nagpur for the offences punishable under Sections 354(a)(4), 295(a) of the Indian Penal Code and under Sections 66A and 67 of the Information Technology Act, 2000. 4] The report was lodged at the instance of informant Smt. Rachana Sanjay Singh i.e non-applicant no.3 in APL No.823/2016 and non-applicant no.5 in APL No.209/2017, stating therein that she is working as Principal in Saint Ursula's Girls High School and Junior College, Nagpur and the accused persons i.e. present applicants and other accused one Samsan Manwatkar (who is not before this Court) posted, exchanged and re-posted certain objectionable material by way of 'Whatsapp' messages, e-mails and postal letters. It is submitted that this material is circulated and the material is an obscene material, resulting in her defamation as well as the religious hates. 4 APL823.16+1.odt 5] We first deal with APL No.823/2016 of applicant Bharat Bhushan Chouguley. Mr. R. B. Choguley, learned counsel appearing for this applicant submitted that the alleged material in the form of Whatsapp messages, e-mails and the letters are said to be received by the complainant in the year 2013. He firstly submitted that the applicant is a professional, working as a Chartered Accountant and is a member of Institute of Chartered Accountants of India. The applicant is having very good academic career at his credit. He submitted that the applicant himself is a follower of Christen religion and was an elected secretary of the body of christens namely 'Nagpur Diocese'. He submitted that the applicant has served the said body as a Secretary for a period of three years and he himself is a very conscious of the welfare of students taking education in the school and Saint Ursula's Girls High School, Nagpur is one of the schools being managed by the body namely 'Nagpur Diocese'. 6] The learned counsel then submitted that the alleged communications by way of 'Whatsapp' messages, e-mails and postal letters, are of the year 2013, whereas the report came to be lodged as belatedly as in year 2016 i.e. after three years and no explanation is 5 APL823.16+1.odt coming forward in the report for the said delay. The submission of the learned counsel is the report was lodged against the applicant only to malign his image. The learned counsel then submitted that the complainant Smt. Rachana is not the member of the 'Whatsapp' group and it is specifically stated in the report that one Prashant Satralkar (applicant in APL 209/2017) has formed a 'Whatsapp' group and the applicant, other accused Samson Manwatkar and other persons are the members of this group. It is further stated that there was exchange of some objectionable material. He submitted that in the report, the complainant has made false allegation against the applicant that the applicant was insisting upon the tribal girls to offer prayers in the Church and even if the girls were not ready to offer the prayer, they were asked to offer prayer forcibly. It is also alleged that there was mischief in the administration of the school such as theft committed of paddy, which was made available in the scheme known as 'Mid Day Meal'. The learned counsel then submitted that insofar as the material referred to in the report namely e-mails is concerned, it is the specific statement of the complainant that Prashant Satralkar had forwarded those e-mails and also stated that it was Shri Satralkar, who circulated the 6 APL823.16+1.odt objectionable material against the complainant as well as the religious hates. 7] The learned counsel, by inviting our attention to the 'Whatsapp' messages referred to in the report submitted that even if these messages are taken on its face value, they are neither objectionable nor they relate to any such act of causing embarassment to the complainant. He submitted that these messages only show that the applicant is having concern about the goodwill of the trust and welfare of the children taking education in the institute being run by the trust. He then submitted that one of the messages show that the intention of the applicant was clearly bona fide and he wanted that the institute should not be blamed for corruption in the institute. The learned counsel then submitted that registration of offence against the applicant either for commission of offence under Indian Penal Code or under the Information Technology Act, is unsustainable as there is absolutely no material on record to attract the offences punishable under the Indian Penal Code and insofar as offence under Section 66A of the I.T. Act registered against the applicant is concern, it is an act of sheer 7 APL823.16+1.odt negligence on the part of respondent authorities. The learned counsel for the applicant placed heavy reliance on the judgment of the Hon'ble Apex Court reported in AIR 2015 SC 1523 in the case of Shreya Singhal .vs. Union of India. He submitted that the Apex Court while dealing with the provisions of Sections 66A, 69 and 79 of the I.T. Act, 2000 along with constitutional rights, more particularly, Article 19(1)(a), in its detailed judgment held that Section 66A is wholly unconstitutional and void. 8] Insofar as offence punishable under Section 295(a) of the Indian Penal Code is concerned, the learned counsel for the applicant placed heavy reliance on the judgment of the Apex Court in the case of Mahendra Singh Dhoni .vs. Yerraguntla Shyamsundar and another in Transfer Petition (Criminal) No. 23/2016. It was the further submission of the learned counsel for the applicant that there were certain irregularities in the administration of the school and with a bona fide intention that there must be a check to mal- administration, the applicant made complaint to the school authorities and the report lodged by the complainant is a counter blast to the complaint made by the applicant. To submit that 8 APL823.16+1.odt lodgment of the report with mala fide intention and the proceedings on the basis of the report and vague material, is an abuse of process of law and as such, the report lodged against the applicant is required to be quashed, the learned counsel for the applicant further placed reliance on the judgment of the Apex Court in the case of Madhavrao Jiwajirao Scindia and others .vs. Sambhajirao Chandrojirao Angre and others, reported in AIR 1988 SC 709 ; and State of Haryana and others .vs. Ch.Bhajan Lal and others reported in AIR 1992 SC 604. 9] Mrs. Jachak, the learned Additional Public Prosecutor appearing for the respondent authorities and Mr. Dable, the learned counsel appearing for the non-applicant/complainant vehemently opposed the application. 10] The learned Additional Public Prosecutor submitted that there are serious allegations against the applicant and the material is in the form of 'Whatsapp' messages. She further submitted that the said material is lowering down the reputation of the non-applicant complainant and the communications hurt the religious feelings and 9 APL823.16+1.odt therefore, the report was lodged against the accused persons, including the applicant. It is stated in the report that the messages are circulated in a 'Whatsapp' group and in the group, there are certain lady members. The learned APP then submitted that certain letters were handed over to one Dolly Agrawal and some other acquaintances with the complainant and in these letters, derogatory and objectionable material was written against the complainant. The learned APP and the learned counsel appearing for the complainant submitted that as the investigation is at the initial stage, it would be necessary to collect the other material to unearth the truth. The learned APP submitted that the applicant is not cooperating the investigating agency and as such, the investigating agency is unable to proceed further in the investigation. Thus, the learned APP as well as the learned for the complainant submitted that the application be dismissed. 11] On the backdrop of rival submissions of the learned counsel for the parties referred to above, we have gone through the material placed on record so also the material presented for our perusal by the learned APP. 10 APL823.16+1.odt 12] It reveals from a perusal of the report that a 'Whatsapp' group is formed by another applicant Prashant Satralkar and applicant Bharat Chouguley is one of the members of the group. On the backdrop of the allegations in the report and in view of the submissions of the learned counsel for the applicant, when we put a specific query to the learned APP about the material against the applicant, she submitted that the material is in the form of 'Whatsapp' messages. 13] The undisputed material against the applicant is in the form of 'Whatsapp' messages. We have gone through all these messages. The first message deals with an appreciation of former Judge i.e. Justice Pardiwala. The second message reads that - \"let's remove corruption in Nagpur Diocese by recovering Rs.15,00,000.00 from St. Ursula's School, due from July, 2015\". 14] Now, the first message clearly shows that it is only an appreciation of a former Judge i.e. Justice Pardiwala and had no concern with the complainant or the trust - Nagpur Diocese. The second message shows that the applicant is asking for removal of corruption and if the intention is of clean image and trust, then this 11 APL823.16+1.odt message would not call for any action for the alleged offences. Insofar as third message is concerned, it was the submission of the learned APP and the learned counsel for the non-applicant/ complainant that this message refers to an advertisement of a product namely 'Stay-on' capsules and oil. It was the submission of the learned APP and the learned counsel for the complainant that reference to the said product and contents of the message are derogatory in nature and they lowered down the image of the complainant. Perusal of the message reveals that this message is a response to the message received wherein there was a reference to the advertisement of the product. It is not the message generated by the applicant. Then by reading the other messages, we find that there is a reference to certain mischief played while distributing food-grains to the students under the government scheme. The learned counsel for the applicant submitted that the applicant had made certain complaints to the school authorities in respect of the misdeeds in the school. The applicant being a vigilant citizen if raises grievance against some misdeeds in the administration of the school, it cannot be said that the applicant had mala fide intention to lower down the image of the complainant. 12 APL823.16+1.odt 15] The learned counsel for the applicant was justified in placing heavy reliance on the judgment of the Hon'ble Apex Court in the case of Shreya Singhal .vs. Union of India (supra). It would be useful to refer to the relevant observations of the Apex Court, which read thus - \"95. It has been held by us that Section 66A purports to authorize the imposition of restrictions on the fundamental right contained in Article 19(1)(a) in language wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action. We have held following K.A. Abbas' case (Supra) that the possibility of Section 66A being applied for purposes not sanctioned by the Constitution cannot be ruled out. It must, therefore, be held to be wholly unconstitutional and void. Romesh Thappar's Case was distinguished in R.M.D. Chamarbaugwalla v. The Union of India, [MANU/SC/ 0020/ 1957 : [1957] S.C.R. 930 in the context of a right under Article 19(1)(g) as follows: \"20. In Romesh Thappar v. State of Madras [MANU/SC /0006/1950 : (1950) SCR 594] , the question was as to the validity of Section 9(1-A) of the Madras Maintenance of Public Order Act, 23 of 1949. That section authorised the Provincial Government to prohibit the entry and circulation within the State of a newspaper \"for the purpose of securing the public safety or the maintenance of public order.\" Subsequent to the enactment of this statute, the Constitution came into force, and the validity of the impugned provision depended on whether it was protected by Article 19(2), which saved \"existing law insofar as it relates to any matter which undermines the security of or tends to 13 APL823.16+1.odt overthrow the State.\" It was held by this Court that as the purposes mentioned in Section 9(1-A) of the Madras Act were wider in amplitude than those specified in Article 19(2), and as it was not possible to split up Section 9(1-A) into what was within and what was without the protection of Article 19(2), the provision must fail in its entirety. That is really a decision that the impugned provision was on its own contents inseverable. It is not an authority for the position that even when a provision is severable, it must be struck down on the ground that the principle of severability is inadmissible when the invalidity of a statute arises by reason of its contravening constitutional prohibitions. It should be mentioned that the decision in Romesh Thappar v. State of Madras [MANU/SC /0006/1950 : (1950) SCR 594] was referred to in State of Bombay v. F.N. Balsara [MANU/SC/0009/1951 : (1951) SCR 682] and State of Bombay v. United Motors (India) Ltd. [ MANU/SC/ 0095/1953 : (1953) SCR 1069 at 1098-99] and distinguished.\" 98. We have already held that Section 66A creates an offence which is vague and overbroad, and, therefore, unconstitutional under Article 19(1)(a) and not saved by Article 19(2). We have also held that the wider range of circulation over the internet cannot restrict the content of the right under Article 19(1)(a) nor can it justify its denial. However, when we come to discrimination under Article 14, we are unable to agree with counsel for the petitioners that there is no intelligible differentia between the medium of print, broadcast and real live speech as opposed to speech on the internet. The intelligible differentia is clear - the internet gives any individual a platform which requires very little or no payment through 14 APL823.16+1.odt which to air his views. The learned Additional Solicitor General has correctly said that something posted on a site or website travels like lightning and can reach millions of persons all over the world. If the petitioners were right, this Article 14 argument would apply equally to all other offences created by the Information Technology Act which are not the subject matter of challenge in these petitions. We make it clear that there is an intelligible differentia between speech on the internet and other mediums of communication for which separate offences can certainly be created by legislation. We find, therefore, that the challenge on the ground of Article 14 must fail. Procedural Unreasonableness 99. One other argument must now be considered. According to the petitioners, Section 66A also suffers from the vice of procedural unreasonableness. In that, if, for example, criminal defamation is alleged, the safeguards available under Section 199 Cr.P.C. would not be available for a like offence committed under Section 66A. Such safeguards are that no court shall take cognizance of such an offence except upon a complaint made by some person aggrieved by the offence and that such complaint will have to be made within six months from the date on which the offence is alleged to have been committed. Further, safeguards that are to be found in Sections 95 and 96 of the Cr.P.C. are also absent when it comes to Section 66A. For example, where any newspaper book or document wherever printed appears to contain matter which is obscene, hurts the religious feelings of some community, is seditious in nature, causes enmity or hatred to a certain section of the public, or is against national integration, such book, newspaper or document may be seized but under Section 96 any person having any interest in such 15 APL823.16+1.odt newspaper, book or document may within two months from the date of a publication seizing such documents, books or newspapers apply to the High Court to set aside such declaration. Such matter is to be heard by a Bench consisting of at least three Judges or in High Courts which consist of less than three Judges, such special Bench as may be composed of all the Judges of that High Court. 119. In conclusion, we may summarise what has been held by us above: (a) Section 66A of the Information Technology Act, 2000 is struck down in its entirety being violative of Article 19(1)(a) and not saved under Article 19(2). (b) Section 69A and the Information Technology (Procedure & Safeguards for Blocking for Access of Information by Public) Rules 2009 are constitutionally valid. (c) Section 79 is valid subject to Section 79(3)(b) being read down to mean that an intermediary upon receiving actual knowledge from a court order or on being notified by the appropriate government or its agency that unlawful acts relatable to Article 19(2) are going to be committed then fails to expeditiously remove or disable access to such material. Similarly, the Information Technology \"Intermediary Guidelines\" Rules, 2011 are valid subject to Rule 3 sub-rule (4) being read down in the same manner as indicated in the judgment. (d) Section 118(d) of the Kerala Police Act is struck down being violative of Article 19(1)(a) and not saved by Article 19(2).\" 16] The learned counsel for the applicant was also justified in submitting that the material falls too short to call for any action as 16 APL823.16+1.odt alleged in the report for the offences punishable under Sections 354(a)(4) and 295(a) of the Indian Penal Code. It will be useful to refer to the observations of the Hon'ble Apex Court in the case of Mahendra Singh Dhoni .vs. Yerraguntla Shyamsundar and another, in paragraphs 5, 6 and 7, which read thus - 5. The seminal issue that arises for consideration is whether the allegations made in the complaint constitute an offence under Section 295A of the IPC and whether this Court, in the obtaining factual matrix, relegate the trial at some other place or grant him liberty to file an application under Section 482 CrPC for quashing. At this juncture, we may refer to Section 295A of the IPC which reads as follows:- 295A. Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious belief :- Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of 273 [citizens of India], 274 [by words, either spoken or written, or by signs or by visible representations or otherwise], insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to 4[three years], or with fine, or with both.\" 6. Be it noted, the constitutional validity of Section 295A was assailed before this Court in Ramji Lal Modi v. State of U.P.,[AIR 1957 SC 620] which was eventually decided by a Constitution Bench. The Constitution Bench, adverting to the multiple aspects and various facets of Section 295A IPC held as follows :- 17 APL823.16+1.odt \"8. It is pointed out that s. 295A has been included in chapter XV of the Indian Penal Code which deals with offences against the public tranquility and from this circumstance it is faintly sought to be urged, therefore, that offences relating to religion have no bearing on the maintenance of public order, or tranquillity and, consequently, a law creating an offence relating to religion and imposing restrictions on the right to freedom of speech and expression cannot claim the protection of el. (2) of Art. 19. A reference to Arts. 25 and 26 of the Constitution, which guarantee the right to freedom of religion, will show that the argument is utterly untenable. The right to freedom of religion assured by those Articles is expressly made subject to public order, morality and health. Therefore, it cannot be predicated that freedom of religion can have no bearing whatever on the maintenance of public order or that a law creating an offence relating to religion cannot under any circumstances be said to have been enacted in the interests of public order. These two Articles in terms contemplate that restrictions may be imposed on the rights guaranteed by them in the interests of public order. 9. Learned counsel then shifted his ground and formulated his objection in a slightly different way. Insults to the religion or the religious beliefs of a class of citizens of India may, says learned counsel, lead to public disorders in some cases, but in many cases they may not do so and,, therefore, a law which imposes restrictions on the citizens' freedom of speech and expression by simply making insult to religion an offence will cover both varieties of insults, i.e., those which may lead to public disorders as well as those 18 APL823.16+1.odt which may not. The law in so far as it covers the first variety may be said to have been enacted in the interests of public order within the meaning of el. (2) of Art. 19, but in so far as it covers the remaining variety will not fall within that clause. The argument then concludes that so long as the possibility of the law being applied for purposes not sanctioned by the Constitution cannot be ruled out, the entire law should be held to be unconstitutional and void. We are unable, in view of the language used in the impugned section, to accede to this argument. In the first place el. (2) of Art. 19 protects a law imposing reasonable restrictions on the exercise of the right to freedom of speech and expression \"in the interests of\" public order, which is much wider than \"for maintenance of\" public order. If, therefore, certain activities have a tendency to cause public disorder, a law penalising such activities as an offence cannot but be held to be a law imposing reasonable restriction \"in the interests of public order\" although in some cases those activities may not actually lead to a breach of public order. In the next place s. 295A does not penalise any and every act of insult to or attempt to insult the religion or the religious beliefs of a class of citizens but it penalises only those acts of insults to or those varieties of attempts to insult the religion or the religious beliefs of a class of citizens, which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class. Insults to religion offered unwittingly or carelessly or without any deliberate or malicious intention to outrage the religious feelings of that class do not come within the section. It only Punishes the aggravated form of insult to religion when it is perpetrated with the deliberate and malicious 19 APL823.16+1.odt intention of outraging the religious feelings of that class. The calculated tendency of this aggravated form of insult is clearly to disrupt the public order and the section, which penalises such activities, is well within the protection of cl. (2) of Art. 19 as being a law imposing reasonable restrictions on the exercise of the right to freedom of speech and expression guaranteed by Art. 19(1)(a). Having regard to the ingredients of the offence created by the impugned section, there cannot, in our opinion, be any possibility of this law being applied for purposes not sanctioned by the Constitution. In other words, the language employed in the section is not wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting the fundamental right guaranteed by Art. 19(1)(s) and consequently, the question of severability does not arise and the decisions relied upon by learned counsel for the petitioner have no application to this case.\" 7. On a perusal of the aforesaid passages, it is clear as crystal that Section 295A does not stipulate everything to be penalised and any and every act would tantamount to insult or attempt to insult the religion or the religious beliefs of class of citizens. It penalise only those acts of insults to or those varieties of attempts to insult the religion or religious belief of a class of citizens which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class of citizens. Insults to religion offered unwittingly or carelessly or without any deliberate or malicious intention to outrage the religious feelings of that class do not come within the Section. The Constitution Bench has further clarified that the said provision only punishes the aggravated form of insult to religion when it is perpetrated with the deliberate 20 APL823.16+1.odt and malicious intention of outraging the religious feelings of that class. Emphasis has been laid on the calculated tendency of the said aggravated form of insult and also to disrupt the public order to invite the penalty. 17] The learned counsel for the applicant was also justified in placing reliance on the judgment of the Hon'ble Apex Court in the case of Madhavrao Jiwajirao Scindia .vs. Sambhajirao Chandrojirao Angre (supra). It would be useful to refer to the relevant observations of the Apex Court at paragraph 7, which read thus - 7. The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage. 21 APL823.16+1.odt 18] The learned counsel for the applicant was also justified in placing reliance on the judgment of Gujrat High Court in case of Mohd. Rizwan Fazluddin Kadri .vs. State of Gujrat in Spl. Criminal Application No. 1832/2009 in support of his submission that the report against the applicant for commission of offence under Section 67 of the I.T. Act falls too short to make out any case against the applicant. It would be useful to refer to the observations of the Gujrat High Court at paragraphs 4 and 5, which read thus - \"4. Contents of the complaint I have already briefly noted. As per the investigating agency, the petitioner had sent the above referred e-mail containing certain offending materials. Question is, even accepting the allegations of the investigating agency as true, whether offence under Section 67 of Information Technology Act can be stated to have been made out. Section 67 of Information Technology Act reads as follows: Publishing of information which is obscene in electronic form.- Whoever publishes or transmits or causes to be published in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to one lakh rupees and in the event of a second or subsequent conviction with 22 APL823.16+1.odt imprisonment of either description for a term which may extend to ten years and also with fine which may extend to two lakh rupees. 5. It can thus be seen that Section 67 seeks to punish publication of information through electronic form which is obscene in nature. Though term obscene has been used in the title of the section, in the main body of the section it is provided that any publication or transmission in the electronic form any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied shall be punished with specified penalty.\" 19] The learned counsel for the applicant was also justified in submitting that none of the material which is in the form of 'Whatsapp' messages is satisfying the test namely it being a lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons so as to call for an action under Section 67 of the I.T. Act. 20] The the learned Additional Public Prosecutor vehemently submitted that in the 'Whatsapp' messages, the applicant re-posted the advertisement of a product 'Stay-on' capsules and oil and the act of the applicant was with an ill intention, as observed by us above, 23 APL823.16+1.odt that message was in response to a message received by the applicant forwarded by somebody else. It is not even the case of the prosecution that said message was created by the applicant. Thus, we find no merit in the submission of the learned Additional Public Prosecutor in her opposition to the application. 21] The learned APP also made an attempt to submit that the applicant is not cooperating with the investigating agency. On a perusal of the material the learned counsel for the applicant submitted that by order dated 19.12.2016, this Court had permitted the investigating agency to continue with the investigation, but directed the agency not to take coercive steps against the applicants. The learned counsel submitted that whenever notice was issued to the applicant to remain present before the Investigating Officer, the applicant remained present before the agency and extended all the cooperation to the investigating agency. The learned counsel for the applicant submitted that the investigating agency was insisting upon the applicant to handover his mobile phone. The learned counsel further submitted that insistence of the agency was in the form of coercive step and as such, the applicant in view of the order of this Court dated 19.12.2016, refused to handover the mobile phone to 24 APL823.16+1.odt the agency and this act of the applicant cannot be termed as non- cooperation by the applicant to the investigating agency. We find considerable merit in the submission of the learned counsel. 22] Considering all the above referred aspects, in our opinion, the learned counsel for the applicant - Bharat Bhushan Vipin Chouguley has made out a case for allowing the application. 23] Insofar as APL No.209/2017 of applicant Prashant Satralkar is concerned, Mr. Rohit R. Choubule, the learned counsel for the applicant made an attempt to submit before us that the applicant is similarly situated with the other applicant Bharat Chougule, whose application this Court is inclined to allow and as such the application of applicant Prashant may also be allowed. We are unable to accept the submission of the learned counsel for the reason that in the report, it is specifically stated that applicant Prashant is the person, who has formed a 'Whatsapp' group, so also there is a reference to certain e-mails forwarded by the applicant. 24] Insofar as applicant Bharat Chouguley is concerned, the only material against the applicant is in the form of 'Whatsapp' 25 APL823.16+1.odt messages and he is only a member of the 'Whatsapp' group, whereas present applicant Prashant Satralkar is the person, who has formed the group. Insofar as applicant Prashant is concerned, apart from 'Whatsapp' messages, there is a reference to e-mails forwarded by this applicant. These mails are presented before us by the learned APP for our perusal. These e-mails are in detail and they are referring to the religious sentiments. On a perusal of these e-mails, we find that there is a specific reference of the complainant. It may not be necessary for us to refer to those e-mails in detail, but to show the material in the form of e-mails referring personally the complainant and levelling allegations against her, we may refer to part of one e- mail and the same reads as under - \"Hamare samaj me ek chawal choir principal hai....she sale ration of little school children and enjoys her personal life... like... Nayee-nayee gadi kharidna....Air travel karana...every week...And... Sarkari logon ko khushi karna....She do all stuff except teaching...etc.\" A bare perusal of the part of e-mail referred to above shows that the statement made therein is derogatory in nature and levelling personal allegations against the complainant. The material submitted for our perusal show that these mails are forwarded by the 26 APL823.16+1.odt applicant to the complainant. The period of exchange of these e-mails ranges from 06.2.2013 to 17.7.2014. Then, there is a reference to certain letters, under title \"Paramjyoti ki Raslila\". These letters are clearly derogatory in nature and maligning the image of the complainant and also bringing to disrepute the institute. Considering these factual aspects, we are of the opinion that the case of applicant Prashant differs from the case of applicant Bharat. Insofar as applicant Prashant is concerned, we find that the material against this applicant is prima facie sufficient enough to call for an action of registration of offence and the investigating agency is required to conduct thorough investigation in the matter. 25] As we have observed above while dealing with the application of applicant Bharat that the Apex Court by its judgment is pleased to truck down Section 66A of the I.T. Act, the offence under Section 66A against the applicant would not stand, but for the other offencess, the investigating agency is required to conduct investigation against the applicant on the backdrop of the specific material on record. In the result, APL No. 209/2017 deserves to be partly allowed. 27 APL823.16+1.odt 26] In the result, APL No.823/2016 of Bharat Bhushan Chouguley is allowed in terms of prayer clause (ii). APL No.209/2017 is partly allowed. The first information report registered against applicant Prashant at Police Station, Sadar, Nagpur vide Crime No. 270/2016 is quashed only in respect of offence under Section 66A of the Information Technology Act, 2000. The respondent authorities to take necessary steps and continue with the criminal proceedings insofar as other offences against applicant Prashant Satralkar is concerned, namely offences punishable under Sections 354(a)(4), 295(a) of the Indian Penal Code and under Section 67 of the Information Technology Act, 2000. The criminal applications are disposed of accordingly. 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{"id": "94780858", "text": "THE HIGH COURT OF MADHYA PRADESH 1 WP 8154 of 2020 Jagdish Singh Jatav vs. State of MP and Others Gwalior, Dated :21/01/2021 Shri Vibhor Kumar Sahu, counsel for the petitioner. Shri Abhishek Singh Bhadoriya, Panel Lawyer for the respondents/ State. This petition under Section 226 of the Constitution of India has been filed against the order dated 04/05/2020 passed by the Director, Public Education, MP, Bhopal, by which the appeal filed by the petitioner against the order of dismissal issued by the Joint Director, Public Education, Division Gwalior on 23/01/2020, has been dismissed. The necessary facts for disposal of present petition in short are that the petitioner was working as Upper Division Clerk in Government Girls Higher Secondary School, Gohad, District Bhind. He was convicted by judgment dated 17/06/2019 passed by JMFC, Gwalior in Criminal Case No.166/2016 for offene under Sections 341, 323/34 of IPC and was sentenced to undergo the rigorous imprisonment of three months and a fine of Rs.500/-. Criminal Appeal filed by the petitioner was dismissed by the Appellate Court by judgment dated 07/09/2019. Being aggrieved by the dismissal of his appeal, the petitioner has filed a Criminal Revision before this Court and by order dated 16/09/2019, his sentence has been suspended. The petitioner also remained in custody from 07/09/2019 to 16/09/2019. Challenging the impugned orders passed by the authorities, it is submitted by the counsel for the petitioner that even if the petitioner has been convicted for offence under Sections 323, 341, 34 of IPC but the offence committed by the WP 8154 of 2020 Jagdish Singh Jatav vs. State of MP and Others petitioner does not involve moral turpitude, therefore, the respondents have committed a mistake by terminating the services of the petitioner. Considered the submissions made by the counsel for the petitioner. Rule 19 of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 (In short Rules 1966), which provides for special procedure in certain cases, to which reliance has been placed by the appellants does not appear to be applicable in the instant case. The said Rule reads thus: \"19. Special procedure in certain cases.--Notwithstanding anything contained in Rule 14 to Rule 18-- (i) where any penalty is imposed on a government servant on the ground of conduct which has led to his conviction on a criminal charge, or (ii) where the disciplinary authority is satisfied for reasons to be recorded by it in writing that it is not reasonably practicable to hold an inquiry in the manner provided in these Rules, or (iii) where the Governor is satisfied that in the interest of the security of the State, it is not expedient to hold any inquiry in the manner provided in these Rules, the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit: Provided that the Commission shall be consulted where such consultation is necessary, before any orders are made in any case under this Rule.\" From plain reading of Rule 19(i) of Rules 1966, it is clear that the departmental enquiry can be dispensed with in the case of the conduct of an employee which has led to his conviction on a criminal charge. However, it would be too harsh to hold that the employer is not entitled to consider the circumstances of the criminal case, and in spite of the nature of the offence, the employer has to issue an order of dismissal. WP 8154 of 2020 Jagdish Singh Jatav vs. State of MP and Others The Supreme Court in the case of The State Bank of India Vs. P. Soupramaniane by judgment dated 26-4-2019 passed in C.A. NO. 7011 of 2019 has held as under :- ''9. There can be no manner of doubt about certain offences which can straightaway be termed as involving moral turpitude e.g. offences under the Prevention of Corruption of Act,NDPS Act, etc. The question that arises for our consideration in this case is whether an offence involving bodily injury can be categorized as a crime involving moral turpitude. In this case, we are concerned with an assault. It is very difficult to state that every assault is not an offence involving moral turpitude. A simple assault is different from an aggravated assault. All cases of assault or simple hurt cannot be categorized as crimes involving moral turpitude. On the other hand, the use of a dangerous weapon which can cause the death of the victim may result in an offence involving moral turpitude. In the instant case, there was no motive for the Respondent to cause the death of the victims. The criminal courts below found that the injuries caused to the victims were simple in nature. On an overall consideration of the facts of this case, we are of the opinion that the crime committed by the Respondent does not involve moral turpitude. As the Respondent is not guilty of an offence involving moral turpitude, he is not liable to be discharged from service.'' Thus, it is clear that if an employee has been convicted for an offence involving moral turpitude, then he can be dismissed from his service, but if an employee has been convicted for an offence not involving moral turpitude, then his dismissal is not warranted. Moral Turpitude has been explained by the Supreme Court in the cases of Allahabad Bank Vs. Deepak Kumar Bhola reported in (1997) 4 SCC 1 and Pawan Kumar Vs. State of Haryana reported in (1996) 4 SCC 17. In the case of Pawan Kumar (Supra) it has been held as under :- ''12. \"Moral turpitude\" is an expression which is used in legal WP 8154 of 2020 Jagdish Singh Jatav vs. State of MP and Others as also societal parlance to describe conduct which is inherently base, vile, depraved or having any connection showing depravity. The Government of Haryana while considering the question of rehabilitation of ex-convicts took a policy decision on 2-2-1973 (Annexure E in the Paper-book), accepting the recommendations of the Government of India, that ex-convicts who were convicted for offences involving moral turpitude should not however be taken in government service. A list of offences which were considered involving moral turpitude was prepared for information and guidance in that connection. Significantly Section 294 IPC is not found enlisted in the list of offences constituting moral turpitude. Later, on further consideration, the Government of Haryana on 17/26-3-1975 explained the policy decision of 2-2-1973 and decided to modify the earlier decision by streamlining determination of moral turpitude as follows: \"... The following terms should ordinarily be applied in judging whether a certain offence involves moral turpitude or not; (1) whether the act leading to a conviction was such as could shock the moral conscience of society in general. (2) whether the motive which led to the act was a base one. (3) whether on account of the act having been committed the perpetrator could be considered to be of a depraved character or a person who was to be looked down upon by the society. Decision in each case will, however, depend on the circumstances of the case and the competent authority has to exercise its discretion while taking a decision in accordance with the above-mentioned principles. A list of offences which involve moral turpitude is enclosed for your information and guidance. This list, however, cannot be said to be exhaustive and there might be offences which are not included in it but which in certain situations and circumstances may involve moral turpitude.\" In order to find out as to whether the petitioner has committed an offence involving moral turpitude or not, it would be necessary for this Court to consider the allegations which were levelled against the petitioner. According to the WP 8154 of 2020 Jagdish Singh Jatav vs. State of MP and Others prosecution case, on 27/04/2016 at about 09:00 am, the complainant Radhakrishna Jatav was wrongfully restrained by the petitioner and two other co-accused persons and he was abused and with an intention to cause hurt to the complainant, he was assaulted by fists and blows as well as by a brick. The allegations of assaulting the complainant by brick was against the co-accused Nihal Singh. On the report lodged by the complainant, Crime No.166/2016 was registered at Police Station Thatipur, District Gwalior and after completing the investigation, the police filed the charge sheet against the applicant and other two co-accused persons. Charges under Section 341, 294, 323/34, 506 (II) of IPC were framed and by judgment dated 17/06/2019 passed by JMFC, Gwalior in Criminal Case No.4271/2016, the petitioner and other two co-accused persons were convicted for offence under Sections 323, 341/34 of IPC, whereas, the petitioner and the co-accused persons were acquitted for the charges under Section 294, 506 (II) of IPC. If the allegations which were made against the petitioner are considered, then it is clear that causing bodily hurt would not involve moral turpitude. The allegations of assaulting the complainant by a brick is against co-accused Nihal Singh and the only allegations against the petitioner were that he along with the co-accused persons, had wrongfully restrained the complainant and assaulted him by fists and blows. By no stretch of imagination, the allegation against the petitioner can be considered to be an offence involving moral turpitude. In the light of the judgment passed by the Supreme Court in the case of WP 8154 of 2020 Jagdish Singh Jatav vs. State of MP and Others P. Soupramaniane (supra), this Court is of the considered opinion that the authorities failed to consider that the allegation levelled against the petitioner does not involve moral turpitude and merely because the petitioner has been convicted for offence under Sections 323, 341/34 of IPC, it is not sufficient to dismiss him from service. Accordingly, the order dated 04/05/2020 passed by the Director, Public Education, MP, Bhopal and the order 23/01/2020 passed by the Joint Director, Public Education, Division Gwalior are hereby set aside. Accordingly, the respondents are directed to reinstate the petitioner in service forthwith. However, the petitioner shall not be entitled for back-wages from the date of his dismissal till today. With aforesaid observations, this petition succeeds and is hereby allowed. (G.S. Ahluwalia) Judge MKB MAHENDRA KUMAR BARIK VALSALA 2021.01.25 15:04:14 +05'30' VASUDEVAN 2018.10.26 15:14:29 -07'00'", "spans": [{"start": 35, "end": 50, "label": "CASENO"}, {"start": 51, "end": 97, "label": "PREC"}, {"start": 114, "end": 124, "label": "DATE"}, {"start": 130, "end": 147, "label": "A.COUNSEL"}, {"start": 182, "end": 206, "label": "R.COUNSEL"}, {"start": 349, "end": 359, "label": "DATE"}, {"start": 557, "end": 567, "label": "DATE"}, {"start": 814, "end": 824, "label": "DATE"}, {"start": 852, "end": 877, "label": "CASENO"}, {"start": 919, "end": 922, "label": "STAT"}, {"start": 1113, "end": 1123, "label": "DATE"}, {"start": 1255, "end": 1265, "label": "DATE"}, {"start": 1345, "end": 1355, "label": "DATE"}, {"start": 1359, "end": 1369, "label": "DATE"}, {"start": 1570, "end": 1573, "label": "STAT"}, {"start": 1607, "end": 1622, "label": "CASENO"}, {"start": 1623, "end": 1669, "label": "PREC"}, {"start": 3461, "end": 3476, "label": "CASENO"}, {"start": 3477, "end": 3523, "label": "PREC"}, {"start": 3528, "end": 3541, "label": "COURT"}, {"start": 3557, "end": 3601, "label": "PREC"}, {"start": 3620, "end": 3629, "label": "DATE"}, {"start": 3640, "end": 3661, "label": "CASENO"}, {"start": 3829, "end": 3860, "label": "PREC"}, {"start": 3861, "end": 3869, "label": "PREC"}, {"start": 5247, "end": 5260, "label": "COURT"}, {"start": 5277, "end": 5314, "label": "PREC"}, {"start": 5346, "end": 5378, "label": "PREC"}, {"start": 5423, "end": 5434, "label": "PREC"}, {"start": 5530, "end": 5551, "label": "CASENO"}, {"start": 5552, "end": 5598, "label": "PREC"}, {"start": 5846, "end": 5854, "label": "DATE"}, {"start": 5924, "end": 5943, "label": "AUTH"}, {"start": 6226, "end": 6229, "label": "STAT"}, {"start": 6368, "end": 6380, "label": "DATE"}, {"start": 6414, "end": 6422, "label": "DATE"}, {"start": 7735, "end": 7750, "label": "CASENO"}, {"start": 7751, "end": 7797, "label": "PREC"}, {"start": 7819, "end": 7829, "label": "DATE"}, {"start": 7865, "end": 7883, "label": "PREC"}, {"start": 8230, "end": 8247, "label": "CASENO"}, {"start": 8490, "end": 8493, "label": "STAT"}, {"start": 8528, "end": 8538, "label": "DATE"}, {"start": 8566, "end": 8592, "label": "CASENO"}, {"start": 8699, "end": 8702, "label": "STAT"}, {"start": 8817, "end": 8820, "label": "STAT"}, {"start": 9413, "end": 9426, "label": "COURT"}, {"start": 9442, "end": 9457, "label": "CASENO"}, {"start": 9458, "end": 9504, "label": "PREC"}, {"start": 9505, "end": 9521, "label": "PREC"}, {"start": 9791, "end": 9794, "label": "STAT"}, {"start": 9875, "end": 9885, "label": "DATE"}, {"start": 9953, "end": 9963, "label": "DATE"}, {"start": 10323, "end": 10337, "label": "JUDGE"}, {"start": 10345, "end": 10377, "label": "JUDGE"}, {"start": 10378, "end": 10388, "label": "DATE"}, {"start": 10416, "end": 10426, "label": "DATE"}]}
{"id": "373587", "text": "IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. OF 2008 (Arising out of SLP (Crl.) No.3814 of 2006) Inspector of Police, Tamil Nadu .. Appellant Versus Balaprasanna ..Respondent JUDGMENT Dr. ARIJIT PASAYAT, J. 1. Leave granted. 2. Challenge in this appeal is to the order of a Division Bench of Madras High Court allowing the appeal filed by the respondent (hereinafter referred to as the `accused'). The accused was convicted for offence punishable under Section 302 of the Indian Penal Code, 1860 (in short the `IPC') and sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/- with default stipulation by Principal District Judge, Madurai. He was also convicted for offences punishable under Section 392 read with Section 397 IPC and sentence to undergo rigorous imprisonment for 10 years and to pay a fine. 3. Background facts in a nutshell are as follows: The deceased is one Mayurani, a Sri Lankan student, who was residing in the first floor of the house belonging to one Solsimalai (P.W.1). The Accused is also a Sri Lankan student studying in a different college, but staying in the second floor of the same premises. The occurrence allegedly took place in the afternoon of 22.4.2003. The First Information Report was lodged by P.W.1 on 24-4-2003 at about 9.30 A.M. It was indicated in the First Information Report that on 24.4.2003 at 9.00 A.M., while the informant had gone to perform pooja in the first floor of the house, he got foul smell in the last room of the first floor and found blood seeping through the front door. On opening the window he noticed that Mayurani was lying in a pool of blood with her face covered with a bag. On the basis of the aforesaid F.I.R., investigation was taken up initially by P.W.40. Subsequently on the basis of the order of the High Court, such investigation was completed by P.W.42. The accused is stated to have been arrested on suspicion on 26.4.2003. On the basis of the statement of the accused, prosecution discovered many materials including a knife and a log allegedly used for killing. Initially, P.W.40 suspected the role of P.W.1, his wife P.W.2, P.W.3, from whose house certain incriminating material were recovered allegedly on the basis of statement of the accused as well as P.W.4, who was working as a cleaner in the vehicle of P.W.1. Subsequently, however, P.W.42, who took over investigation from P.W.40 filed charge-sheet only against the present appellant on the footing that P.Ws. 1 to 4 had no role to play in the crime. 4. The prosecution relied upon only circumstantial evidence, namely, confessional statements of the accused leading to recovery of various incriminating materials. Ex.P-6 is the statement leading to recovery of Travel bags (M.Os. 2 & 3), knife (.M.0.5), wooden log (M.0.28), rubber gloves (M.0.29 series) cotton rope with human hair (MN.O.30 series), two sponges soaked with blood (M.0.31 series), bloodstained blue clolour jean pant (M.0.32), bloodstained white banian (M.0.33), colour banian (M.0.34), bloodstained grey colour pant (M.0.35), bloodstained pillow (M.0.36), plastic bucket (M.0.37) from the house of P.W.3. Ex-P-8 is the statement leading to recovery of computer and its accessories (M.Os. 6 to 17) from the house of P.W.15, a classmate of the accused. Ex.P-10 is the statement relating to jewelleries, ultimately leading to recovery of gold ingots (M.O.18 series) from the house of P.W.19 on the basis of other connecting statements of P.W.17 and P.W.18. These three statements, Exs. P-6, P-8 and P-10 dated 26-4-2003, were made before P.W.40 in the presence of P.W.22 and C.W.1. The other confessional statement Ex.P-12 dated 22-9-2003 made before P.W.42 and Subbiah and P.W.24, led to recovery of \"M\" dollar (M.0.38) and key chain with key chain in (M.0.39) from the toilet in the room of the accused. The prosecution has also relied upon the alleged motive to the effect that the accused urgently wanted money with a view to increase his marks in Mathematics and, therefore, the accused had stolen articles belonging to the deceased. 5. The trial court found the respondent guilty and recorded conviction and imposed sentence as aforestated. The trial court found that the prosecution version rested on circumstantial evidence. The following circumstances were highlighted to find the accused guilty. (a) The death is homicidal; (b) The accused was in need of money to chase mathematics paper and for the aforesaid purpose he has killed the deceased to take away the valuable articles like computer and gold ornaments to sell such articles in the market. (c) At the time of occurrence, only the accused, deceased and PW 9 were available in the premises and there was no other person. (d) Statement of the accused leading to recovery of incriminating materials such as knife, rope, clothes, wooden log and other valuable articles such as computer, gold ornaments, \"M\" Dollar and the key chain with key belonging to the deceased. 6. The High Court found that the circumstances highlighted were not sufficient to fasten the guilt on the accused, and directed acquittal. Learned counsel for the appellant submitted that the High Court failed to notice that the circumstances highlighted clearly establish the chain of circumstances which established the prosecution version and the High Court was not justified in directing acquittal. 7. Learned counsel for the respondent on the other hand supported the judgment of the High Court. 8. The conviction based on circumstantial evidence has been highlighted by this Court in various orders of this Court. 9. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan AIR (1977 SC 1063); Eradu and Ors. v. State of Hyderabad (AIR 1956 SC 316); Earabhadrappa v. State of Karnataka (AIR 1983 SC 446); State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt. 10. We may also make a reference to a decision of this Court in C. Chenga Reddy and Ors. v. State of A.P. (1996) 10 SCC 193, wherein it has been observed thus: \"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....\". 11. In Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC 79), it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: \"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.\" 12. In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ 1104), it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. 13. Sir Alfred Wills in his admirable book \"Wills' Circumstantial Evidence\" (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted\". 14. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch- stone of law relating to circumstantial evidence laid down by the this Court as far back as in 1952. 15. In Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh, (AIR 1952 SC 343), wherein it was observed thus: \"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.\" 16. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC 1622). Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so compete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 17. These aspects were highlighted in State of Rajasthan v. Rajaram (2003(8) SCC 180), State of Haryana v. Jagbir Singh & Anr. (2003(11) SCC 261). 18. The main circumstances relied upon by the prosecution relates to the statements of the accused leading to discovery of materials facts, admissible under Section 27 of the Indian Evidence Act, 1872 (in short the 'Evidence Act'). 19. Law is well settled that the prosecution while relying upon the confessional statement leading to discovery of articles under Section 27 of the Evidence Act, has to prove through cogent evidence that the statement has been made voluntarily and leads to discovery of the relevant facts. The scope and ambit of Section 27 of the Evidence Act had been stated and restated in several decisions of this Court. However, in almost all such decisions reference is made to the observation of the Privy Council in Pulukuri Kotayya v. Emperor (AIR 1947 PC 67). It is worthwhile to extract such quoted observation: \"It is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this and the information given must relate distinctly to this fact. Information as to past user or the past history, of the object produced is not related to his discovery in the setting in which it is discovered. Information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' does not lead to the discovery of the knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added 'with which stabbed A', these words are inadmissible since they do not related to the discovery of the knife in the house of the informant (p.77)\". 20. At one time it was held that the expression \"fact discovered\" in the section is restricted to a physical or material fact which can be perceived by the senses, and that it does not include a mental fact, now it is fairly settled that the expression \"fact discovered\" includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to this, as noted in Pulukuri Kottaya's case (supra). 21. The various requirements of the section can be summed up as follows: (1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with the question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible. (2) The fact must have been discovered. (3) The discovery must have been in consequence of some information received from the accused and not by the accused's own act. (4) The person giving the information must be accused of any offence. (5) He must be in the custody of a police officer. (6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to. (7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible. 22. As observed in Pulukuri Kottaya's case (supra) it can seldom happen that information leading to the discovery of a fact forms the foundation of the prosecution case. It is one link in the chain of proof and the other links must be forged in a manner allowed by law. To similar effect was the view expressed in K. Chinnaswamy Reddy v. State of A.P. (AIR 1962 SC 1788). 23. The above position was highlighted in Anter Singh v. State of Rajasthan (AIR 2004 SC 2665). 24. In Rammi alias Rameshwar v. State of Madhya Pradesh (AIR 1999 SC 3544) the scope and ambit of Section 27 of the Evidence Act was analysed in great detail and it was concluded in para 12 as follows: \"12. True, such information is admissible in evidence under Section 27 of the Evidence Act, but admissibility alone would not render the evidence, pertaining to the above information, reliable. While testing the reliability of such evidence the court has to see whether it was voluntarily stated by the accused.\" 25. Significantly, the prosecution has relied upon the evidence of PW 40 who was investigating initially. His evidence has to be considered in the background of what has been stated by PW 22 and CW 1. It has been accepted by the prosecution that great efforts were made by PW 40 to falsely implicate to PWs 1 to 4 and for that purpose a departmental proceeding was initiated. Even according to the statement of the subsequent investigating officer (PW 42), several blank papers with the signature of PW 22 and CW 1 had been by PW 40 and such documents had been used to create false records to implicate PWs 1 to 4. It is to be noted that PW 2 himself was one of the suspected person at the initial stage of investigation. 26. That apart, materials on record such as the statement of P.W.22 recorded under Section 164 of the Code of Criminal Procedure, 1973 (in short `Code') and the statement of C.W.1, raise a reasonable doubt relating to voluntariness of the alleged confession. P.W.22, who is a close relation of the deceased (cousin) has stated that two days after the occurrence after the information that Bala Prasanna was roaming near LIC Colony, Anna Nagar Police brought him to the Police Station and Bala Prasanna was arrested at 5.00 P.M. and was taken to the police station and a witness was present there. It is further stated that at the time of enquiry, the accused was beaten up by the police and they have seized a gold ring and Rs.5000/- cash from him. If this is the statement of P.W.22 recorded under Section 164 of the Code a witness in whose presence the confessional statement leading to discovery of articles from the house of Hajeeali, P.W.3 had been made, it raises serious doubt regarding the voluntariness of the statement. In this context, it is also note worthy to indicate that C.W.1 in his evidence has stated that the accused was in police station on 24-4-2003 itself. Similar statement is made by P.W.4. That apart, C.W.1 has stated that no statement has been made in his presence. The prosecution version to the effect that even some signatures on blank papers had been taken from P.W.22 and C.W.1 thus assumes great importance. 27. The alleged statement made by the accused led to discovery of knife, bloodstained clothes, rope, etc. Unfortunately, for the prosecution there is no evidence to show that in fact the wearing apparels containing bloodstains belonged to the accused, save and except the alleged confessional statement. No witness has spoken that those clothes were worn by the accused at any time far less at or about the time of occurrence. It is also to be kept in view that those articles were recovered from the house of P.W.3 and at the initial stage of investigation, P.W.3 himself was one of the suspected person and he was arrested. Therefore, the statement of P.W.3 and his mother that those articles were brought by the accused and left in the upstairs room is to be considered with a pinch of salt. Moreover, there is nothing to indicate that in fact the bloodstained clothes and rope had tallied with the blood grouping of the deceased. The knife did not contain any bloodstain. Therefore, the aspect relating to recovery of articles from the house of P.W.3 and his mother cannot be considered as a link to complete the chain of circumstantial evidence. 28. The next recovery relates to recovery of computer and accessories. Apart from the fact that there is niggling doubt about the so called confession, in view of statement under Section 164 of the Code of P.W.22 and the statement of C.W.1, a further doubt is raised regarding such aspect in view of evidence of C.W.1 to the effect that he had seen such computer in the room of the deceased when they had gone to the room after the offence was reported. The fact that C.W.1 is a close relation of the deceased adds weight to his evidence rather than taking it away. Even accepting that the computer had been given to P.W.15 by the accused, such circumstance by itself does not unerringly points towards the guilt of the accused either in respect of offence of murder or even robbery. It is quite possible that such articles might have been borrowed by the accused from the deceased and not necessarily stolen by the accused from the deceased after killing her. The fact that P.W.9 had not initially stated anything before P.W.40 about the accused coming down with computer at 3.30 P.M. and stated so for the first time when she was re-examined after 5 months cannot be lost sight of. As a matter of fact, P.W.9 who was examined on the very date when police started investigation did not inform the police that she had seen the accused coming down from upstairs or that the accused had threatened her. Her statement to the following: \"I did not tell anyone that Balaprasanna took away the computer and threatened me. I did not tell this even to the Inspector of Police after going to the police station. I do not tell this even to P.W.1...\". 29. The next recovery relates to the ingots. For the aforesaid aspect, the evidence of P.Ws. 17, 18 and 19 is relevant. Since the golden jewellery had been molten and were recovered in the shape of ingots, it would be very hazardous to come to the conclusion that in fact the golden jewellery belonged to the deceased. If the accused had killed the deceased and stolen those golden jewellery, there is no reason as to why he had also not taken ear rings from the deceased. The fact that ear rings were on the dead body is admitted by the prosecution. 30. The prosecution has strongly relied upon the fact that \"M\" Dollar belonging to the deceased and a chain with key of the room of the deceased were discovered from inside the toilet in the room which was previously occupied by the accused. For the aforesaid purpose, they have relied upon the evidence of P.W.42 and the seizure witness P.W.24. The accused had allegedly made earlier confessional statement before P.W.40 on 26-4-2003 leading to discovery of several articles. The subsequent statement spoken to by P.W.42, the subsequent Investigating Officer, is alleged to have been made only in September, 2003, after about five months. So far as the first confession statement made before P.W.40 is concerned, admittedly the accused was under physical custody, at that time, whereas at the time of last confession stated to have been made before P.W.42, the accused was on bail and he had been summoned by P.W.42 for further examination and, therefore, technically in custody. If the accused had not made such a statement at such first instance, when he had confessed about other articles, it is not understood as to how after 5 months when he was on bail he would make such a statement. Such alleged confession made belatedly thus creates doubt regarding its authenticity or voluntariness. In this context, it is to be noted that C.W. 1 states that \"M\" Dollar was taken from him by P.W.42 for the purpose of facilitating investigation. Keeping in view the fact that C.W.1 is a close relation of the deceased and obviously interested in punishing the real culprit, such a statement coming from C.W.1 cannot be slightly brushed aside. 31. The fact that there had been a statement allegedly made by P.W.1 leading to recovery of a parallel key from the dash board of the car of P.W.1, cannot be lost sight of. It is of course true that the prosecution has tried to exonerate P.W.1 by adducing evidence through P.Ws. 36 and 39 to the effect that immediately after recovery of the dead body, P.W.40 had taken two such keys, thus contradicting the alleged confession of P.W.1. However, the very suspicious role of P.W.40, who apparently was in possession of at least two keys of the same lock creates suspicion regarding recovery of another key after 5 months. 32. Law is well settled that when the prosecution relies upon circumstantial evidence, all the links in the chain of circumstances must be complete and should be proved through cogent evidence. 33. When the judgment of the High Court is analysed in the background of what has been stated by this Court as regards circumstantial evidence, the inevitable conclusion is that the impugned judgment of the High Court does not suffer from any infirmity to warrant interference. The appeal is dismissed. ................................J. (Dr. ARIJIT PASAYAT) ................................J. (P. 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{"id": "171479667", "text": "1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO(S). 251-252 of 2021 (Arising out of S.L.P.(C) No.14266-14267 of 2019) ASSAM INDUSTRIAL DEVELOPMENT CORPORATION LTD. \u2026APPELLANT(S) VERSUS GILLAPUKRI TEA COMPANY LIMITED & ORS. ETC. \u2026RESPONDENT(S) JUDGMENT S. ABDUL NAZEER, J. 1. Leave granted. 2. Assam Industrial Development Corporation Limited has filed these appeals challenging the judgment and order in Writ Appeal Nos. 219 & 220 of 2017 dated 14.03.2019 whereby the Division Bench of the High Court of Guwahati has dismissed the said appeals confirming the order of the Learned Single Judge in Review Petition Nos. 79 & 80 of 2016. 3. Brief facts necessary for disposal of these appeals are as under. 4. In order to set up a plastic park, the Government of Assam decided to acquire a portion of the land belonging to the first respondent situated at Gillapukri Tea Estate, Village Gillapukri, Tinsukia, Assam. The Government of Assam, in exercise of the power vested in it under Section 4 of the Land Acquisition Act, 1894 (for short \u2018L.A. Act\u2019) issued a notification dated 04.08.2008, which was published in the Assam Gazette on 08.08.2008, expressing its intention to acquire 1,166 biggas, 1 katha, 14 lessas of land of the aforesaid Gillapukri Tea Estate. The proceedings being L.A Case No. 1 of 2008 were also initiated for the purpose of acquisition before the District Collector, Tinsukia and, for that purpose, declaration dated 17.06.2009 in terms of Section 6(1) of the L.A. Act was published in the Assam Gazette. The appellant was appointed as the nodal agency to deal with the acquisition proceedings vide appointment letter dated 24.06.2009. 5. The Deputy Commissioner and Collector, District Tinsukia, addressed a letter dated 30.01.2010 to the Principal Secretary to the Government of Assam, Revenue Department to seek approval of the award and the land acquisition estimate which were enclosed therewith in the prescribed Form No. 15 and Form No. 5 respectively. In response, the Commissioner and Secretary to the Government of Assam, Revenue Department, addressed a letter dated 05.03.2010 to the Deputy Commissioner whereby approval, as sought vide the aforesaid letter dated 30.01.2010, was granted. As will be seen in the following paragraphs, the controversy between the parties before us is whether this letter was approval of both the award and the estimate or only the estimate. Thereafter, the owner of the land, i.e. the first respondent herein, addressed a letter dated 05.05.2010 to the Commissioner seeking reference of the matter to the District Judge, Tinsukia, under Section 18 of the L.A. Act for reassessment of the compensation awarded to it. It is contended that other similar applications were also received from different families at different levels. It is further contended that in the letter dated 05.05.2010, the first respondent admitted that it had received a sum of Rs. 4.95 crores on 08.04.2010 by a crossed cheque immediately after the letter for approval dated 05.03.2010 was passed by the Commissioner. It is also contended that vide possession certificate dated 21.05.2010, possession was delivered to the Deputy Commissioner, and thereafter on 11.06.2010, possession of the land was handed over to the appellant by the Deputy Commissioner. 6. The first respondent has not disputed the issuance of the preliminary and final notification. However, it is contended that no award was approved pursuant to the letter dated 05.03.2010. It is the first respondent\u2019s case that vide this letter, only the land acquisition estimate was approved and not the award. This, in the first respondent\u2019s view, led to lapsing of the proceedings and initiation of fresh acquisition proceedings in 2012 which culminated in approval of the award for the first time on 04.01.2014. For this purpose, a fresh notification under Section 4 of the L.A. Act was published on 07.08.2012 and a declaration was also issued on 20.11.2012. Thereafter, the Commissioner issued a notice purportedly under Section 9 of the L.A. Act to the persons interested in the land to submit their objections and claims. On 04.01.2014, a fresh award was passed and the Deputy Secretary, Government of Assam, Revenue Department addressed a letter dated 06.01.2014 to the Deputy Commissioner conveying approval of the said fresh award. The first respondent contends that a comparison of this approval letter dated 06.01.2014 with the approval letter dated 05.03.2010 under the original acquisition proceedings would clearly indicate that under the letter dated 05.03.2010, only the estimate was approved and not the award. Since the award under the fresh proceedings was approved and made after coming into force of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short \u20182013 Act\u2019), the first respondent approached the Deputy Commissioner to seek a fresh award by determining the compensation payable in terms of Section 24(1)(a) of the 2013 Act. 7. The first respondent has denied the claim of the appellant that an award had been approved on 05.03.2010 and has mainly rested its case on the letter dated 21.07.2012 addressed by the Deputy Secretary, Government of Assam, Revenue Department to the Deputy Commissioner wherein the Deputy Secretary admitted to not having drawn the award within two years from the date of publication of the declaration under the original acquisition proceedings. The first respondent has also relied upon the letter dated 06.01.2014 sent by the Deputy Secretary to the Government of Assam which, as per the first respondent, suggests that no award had been approved under the original acquisition proceedings. 8. On the contrary, the State Government has taken a stand that an award was approved by the State Government on 05.03.2010 and that the same had been made within two years of the declaration. It is also contended that pursuant to the award, possession of the land was taken from the first respondent by the acquiring authority and the land was then handed over to the appellant. It was also submitted that the entire compensation had been paid to the first respondent. The State Government contends that the need for an additional award arose only because some of the land owners of the land initially proposed to be acquired were left out in the original award that was approved on 05.03.2010. 9. Appearing for the appellant Shri Jayant Bhushan, learned senior counsel has submitted that the award had been passed in Form No. 15 of the Assam Land Acquisition Manual and was approved by the State on 05.03.2010. Possession of the land was also handed over by the first respondent to the acquiring authority on 21.05.2010 and was thereafter handed over to the appellant on 11.06.2010. Shri Bhushan submitted that the compensation was also received by the first respondent and, in fact, the first respondent had also sought enhancement of the compensation allowed under the said award. It is Shri Bhushan\u2019s submission that once the land stood vested in the State, it could not have been acquired again. Therefore, any issuance of fresh notification under Section 4 and 6 or even preparing of a fresh award by the State Government in respect of the first respondent\u2019s land will be non est or infructuous. He further submits that the letters dated 21.07.2012 and 06.01.2014 relied upon by the High Court could not have had the effect of re-acquiring the land in question since it already stood vested in the State Government. 10. Learned counsel appearing for the State of Assam has supported the stand of the appellant. 11. However, Shri Senthil Jagadeesan, learned counsel for the first respondent submits that the aforesaid two letters would conclusively establish that no approval to an award was granted by the State Government under the original acquisition proceedings. It is his submission that the two aforesaid letters dated 21.07.2012 and 06.01.2014 which were relied upon by the Division Bench of the High Court would clearly establish the same. Therefore, he prays for dismissal of these appeals. 12. We have carefully considered the submissions of the learned counsel made at the Bar and perused the materials placed on record. Having regard to the contentions urged, the crucial question for consideration is whether an award in respect of the first respondent\u2019s land was approved by the State Government on 05.03.2010. Needless to say, if the award was not approved on 05.03.2010, but rather on 06.01.2014 as contended by the first respondent, then the 2013 Act will be applicable and the first respondent will be eligible to receive compensation in accordance therewith. 13. To determine whether the award had indeed been approved on 05.03.2010, we first have to examine the letter dated 30.01.2010 through which the State Government\u2019s approval of the award was sought by the Deputy Commissioner. It is uncontested that vide this letter both the award and the land acquisition estimate were sent to the State Government for its approval. It is pertinent to note that the award was in the format of Form No. 15 which is the statutorily prescribed form for a land acquisition award under the Assam Land Acquisition Manual. This is also true of the land acquisition estimate which was as per the prescribed format of Form No. 5. As such, the only further action required of the State Government was to approve the award which was already in the statutorily prescribed form. This is precisely what was done vide the letter dated 05.03.2010 issued by the Deputy Secretary to the Government of Assam, Revenue Department. 14. This letter dated 05.03.2010 was issued in response to the letter dated 30.01.2010, whereunder approval of the award and the land acquisition estimate was sought. While this letter only expressly mentions the land acquisition estimate and not the award, a combined reading of this letter with the preceding letter dated 30.01.2010 and the subsequent conduct of the parties, including the first respondent, make it evident that the award stood approved by this letter of 05.03.2010. It is noteworthy that copies of both the letters of 30.01.2010 and 05.03.2010 were also addressed to the Industries & Commerce Department of the Government of Assam. Vide the initial letter of 30.01.2010, the said Department was requested to arrange balance funds for making payment to the land owners as per the award. In furtherance of this, vide the letter of 05.03.2010, the said Department was directed to place the balance estimated fund at the disposal of the Deputy Commissioner. We find strength in the appellant\u2019s submission that if the award which had been sent for approval alongwith the estimate had not been approved by the said letter dated 05.03.2010, this direction for making funds for payment to landowners available to the Deputy Commissioner would not have been called for. This view is fortified by the subsequent conduct of the parties, as particularly evinced by the below mentioned actions. 15. It is undisputed that the award amount was indeed made available to the Deputy Commissioner and the awarded sum was duly paid to and received by the first respondent. Not only did the first respondent receive compensation pursuant to the award, it in fact sought enhancement of the same vide its reassessment petition dated 05.05.2010 u/s 18 of the L.A. Act addressed to the Deputy Commissioner. It is also not contested that vide possession certificate dated 21.05.2010, the first respondent handed over possession to the Deputy Commissioner and that on 11.06.2010 possession of the land was ultimately handed over to the appellant by the Deputy Commissioner. What clearly emerges from the above is that after the letter dated 05.03.2010, it was the common belief of the State Government, the appellant as well as the first respondent that the award had been approved and that now actions subsequent thereto viz. payment and receipt of compensation, handover of possession, seeking reassessment of the compensation were needed to be undertaken. 16. It is clear from the materials on record that the plastic project for which the subject Land Acquisition was initiated has already been developed on the acquired land including boundary wall, entrance gate, laying of roads, drains and electrical distribution networks, electrical substation, industrial sheds and warehouses. 17. In the above scenario, the arguments of the first respondent are untenable. Once the award has been approved, compensation has been paid thereunder and possession of the land has been handed over to the Government, acquisition proceedings could not have been reopened, including by way of re-notification of the already acquired land under Section 4 of the L.A. Act by the Government. Contrary to the first respondent\u2019s contention, the question of lapsing under Section 24 of the L.A. Act could not have arisen in this case once the award was approved on 05.03.2010. 18. So far as the second set of acquisition proceedings are concerned, without addressing the factual veracity of the State Government\u2019s contention that the second award was meant to be only in respect of landowners not covered by the original award, we are of the opinion that it would not have been possible for the State Government to initiate acquisition proceedings in respect of already acquired land such as that of the first respondent herein. This position has been affirmed by this Court in D. Hanumanth SA & Ors. v. State of Karnataka and Ors.1 in the following terms: \u201c17. Even otherwise, if land already stands acquired by the Government and if the same stands vested in the Government there is no question of acquisition of such a land by issuing a second notification for the Government cannot acquire its own land. The same is by now settled by various decision of this Court in a catena of cases. 18. In State of Orissa v. Brundaban Sharma,2 this Court has held that the Land Acquisition Act does not contemplate or provide for the acquisition of any interest belonging to the Government in the land on acquisition This position was reiterated in 1 (2010) 10 SCC 656. 2 1995 Supp (3) SCC 249. a subsequent decision of this Court in Meher Rusi Dalal v. Union of India3 in paras 15 and 16 of the said judgment, this Court has held that the High Court clearly erred in setting aside the order of the Special Land Acquisition Officer declining a reference since it is settled law that in land acquisition proceedings the Government cannot and does not acquire its own interest. While laying down the aforesaid law, this Court has referred to its earlier decision in Collector of Bombay v. Nusserwanji Rattanji Mistri4\u201d The recent decision of the Constitution Bench of this Court in Indore Development Authority v. Manoharlal and Ors.5 has also affirmed that once possession is taken by the State, the land vests absolutely with the State and the title of the landowner ceases. We find no reason to deviate from this settled position of law and thus are unable to agree with the High Court\u2019s reliance on the letters dated 21.07.2012 and 06.01.2014 to nullify the original award and allow fresh acquisition proceedings in respect of the first respondent\u2019s land which had already been acquired and has been under the possession of the appellant since 11.06.2010. 19. Therefore, for the foregoing reasons, the appeals succeed and are accordingly allowed. The orders impugned herein are 3 (2004) 7 SCC 362. 4 AIR 1955 SC 298 : (1955) 1 SCR 1311. 5 (2020) 8 SCC 129. set aside. Pending applications, if any, shall stand disposed of. The parties shall bear their own costs. \u2026\u2026.\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026J. (S. ABDUL NAZEER) \u2026\u2026.\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026J. 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{"id": "1681654", "text": "PETITIONER: MUIR MILLS CO., LTD. Vs. RESPONDENT: SUTI MILLS MAZDOOR UNION, KANPUR. DATE OF JUDGMENT: 19/11/1954 BENCH: BHAGWATI, NATWARLAL H. BENCH: BHAGWATI, NATWARLAL H. MAHAJAN, MEHAR CHAND (CJ) DAS, SUDHI RANJAN AIYYAR, T.L. VENKATARAMA CITATION: 1955 AIR 170 1955 SCR (1) 991 ACT: Bonus -Meaning of - Necessary conditions for the demand thereof-Industrial claim-Principles for the grant of it- Social Justice-Meaning of--Industrial Tribunals--Whether Tribunals within the meaning of Art. 136 of the Constitution. HEADNOTE: The term bonus is applied to a cash payment made in addition to wages. it generally represents the cash incentive given conditionally on certain standards of attendance and efficiency being attained. 992 There are two conditions, which have to be satisfied before a demand for bonus can be justified and they are, (1) when wages fall short of the living standard and (2) the industry makes huge profits part of which are due to the contribution which the workmen make in increasing production. The demand for bonus becomes an industrial claim when either or both these conditions are satisfied. The formula for the grant of bonus is as follows:- As both labour and capital contribute to the earnings of the industrial concern, it is fair that labour should derive some benefit, if there is a surplus after meeting prior or necessary charges, The first charges on gross profits are (1) provision for depreciation. (2) reserves for rehabilitation, (3) a return at 6 per cent. on the paid up capital and (4) a return on the working capital at a lesser rate than the return on paid up capital. The surplus that remained after meeting the aforesaid deductions would be available for distribution as bonus. The claim for bonus can be made by the employees only if as a result of the joint contribution of capital and labour the industrial concern has earned profits. If in any particular year the working of the industrial concern has resulted in loss there is no basis nor justification for a demand for bonus. Bonus is not a deferred wage. If it were so, it would necessarily rank for precedence before dividends. The dividends can only be paid out of profits and unless and until profits are made no occasion or question can arise for distribution of any sum as bonus amongst the employees. Social justice is a very vague and indeterminate expression and no clear-cut definition can be laid down which will cover all the situations. The concept of social justice does not emanate from the fanciful notions of any particular adjudicator but must be founded on a more solid foundation. Industrial Tribunals are Tribunals within the meaning of Art. 136 and Art. 136 has vested in the Supreme Court exceptional and overriding power to interfere where it reaches the conclusion that a person has been dealt with arbitrarily or that a Court or Tribunal within the territory of India has not given a fair deal to a litigant. In re Eddystone Marine Insurance Co. (L.R. [1894] W.N. 30), Sutton v. Attorney-General ([19231 39 T.L.R. 294), National Association of Local Government Officers v. Bolton Corporation (L.R. 1943 A.C. 166), Kenicott v. Supervisor of Wayne County ([1873] 83 U.S. 452: 21 L. Ed. 319), Great 'Western Garment Co. Ltd. v. Minister of National Revenue ([1948] 1 D.L.R. 225), Millowners' Association, Bombay v. Bashtreya Mills Mazdoor Sangh, Bombay '[1950] 2 L.L.J. 1247), Nizam Sugar Factory Ltd., Hyderabad v. Their Workmen ([1952], 1 L.L.J. 386), Textile Mills, Madhya Pradesh v. Their Workmen ([1952] 2 L.L.J. 62`), Famous Cine Laboratory v. Their Workmen ([1953] 1 L.L.J 466) and Bharat Bank Ltd., Delhi 993 v. Employees of the Bharat Bank Ltd., Delhi, ([1960] S.C.R. 469), referred to. JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 135 of 1951. Appeal by Special Leave granted by the Supreme Court of India by its Order dated the 21st of May, 1951, from the Judgment and Order dated the 19th February, 1951, of the Labour Appellate Tribunal of India, Allahabad in Appeal No. 136 of 1950. C.K. Daphtary, Solicitor-General of India (J. B. Dadachanji, Rajinder Narain and Devinder Swarup, with him) for the appellant. S.C. Isaacs (0. P. Lal, with him) for the res. pondent. M.C. Setalvad, Attorney-General for India, (Rajin der Narain and Devinder Swarup, with him) for the Intervener (All India Organisation of Industrial Employers). S.C. Isaacs (Mohan Lal Saxena and C. P. Lal, with him) for the Intervener (State of U.P.). 1954. November 19. The Judgment of the Court as delivered by BHAGWATI J.-This appeal with special leave is directed against the judgment and order of the Labour Appellate Tribunal of India in a dispute regarding the workers' claim for bonus. During the year 1948 the appellant made a profit of Rs. 11,97,648-11-9. It paid 24 3 per cent. dividend on ordinary shares, being the maximum that could be paid under the Public Companies (Limitation of Dividend) Ordinance of 1948 and also paid to the workers their full share of bonus at annas 4 in a rupee of their basic earnings. During the year 1949 the selling rates for cloth and yarn were controlled by the Government and were approximately 4 per cent. below those obtained in 1948. The basic wages were increased from the 1st December, 1948, by order of the Government of Uttar Pradesh and the total wages paid were therefore higher than those in the previous year. There was moreover indiscipline amongst the workers and production suffered. There was a strike in the month of October and the mills were closed for nearly a month. Further the management were unable to secure cotton which resulted in the curtailment of the working hours. As a result of all these circumstances the appellant suffered a trading loss of Rs. 5,02,563-1-10. A sum of Rs. 2,50,000 being the excess reserve for taxation was written back and a sum of Rs. 10,01,871-13-5 being the amount of reserve transferred from the investment account was also brought in. An aggregate sum of Rs. 12,51,871-13-5 was thus brought into the balance- sheet by these two transfers. The trading loss was deducted from this amount leaving a credit balance of Rs. 7,49,308-11-7 and that amount was shown as the profit for the year 1949 in the balance-sheet for that year. The balance which had been brought forward from the previous year was added thereto and a dividend of 243/4 per cent. was paid to the ordinary shareholders. The appellant also paid ex gratia to the workmen bonus at the rate of annas 2 per rupee of their basic earnings making it clear by their notification dated the 7th April, 1950, that the directors had sanctioned the payment at that rate in spite of the appellant having suffered a trading loss for the year, that it was being paid entirely at the discretion of the appellant and was not related to or connected with any contract of employment of any worker. On the 4th May, 1950, the Secretary of the respondent Union petitioned to the Provincial Conciliation Officer (Textile) that there was more production in 1949 than in 1948, that there was no reason to hold that the profit in 1949 was less than in the previous year and that the rate of bonus was wrongly reduced and asked that bonus for 1949 should also be paid at the rate of annas 4 per rupee. The industrial dispute which thus arose was referred for enquiry and recording of an award to the Regional Conciliation Board (Textile), Kanpur. The Conciliation Board by a majority decision repelled the contention of the appellant and awarded the payment of bonus at annas 4 per rupee. On an appeal taken by the appellant to the Industrial Court (Textiles and Hosiery), Kanpur, the Industrial Court accepted the contention of the appellant, allowed the appeal and set aside the award. The respondent thereupon appealed to the Labour Appellate Tribunal which substantially agreed with the Industrial Court on questions of fact as well as the general position in law but imported considerations of social justice and treating this as a special case \" where social justice would demand that labour should have bonus for the year where for that very year capital had not only a reasonable return but much in excess of that \", allowed the appeal and directed the appellant to pay to the workmen bonus at the rate of annas 4 per rupee within six weeks of their decision. The appellant filed this appeal against that decision after obtaining special leave from this Court. Both the Industrial Court as well as the Labour Appellate Tribunal found as a fact that there was a trading loss of Rs. 5,02,563-1-10 during the year 1949 and also that the dividend of 243/4 per cent. to the ordinary shareholders was distributed after transferring the aggregate sum of Rs. 12,51,871-13-5 from the reserves. The question which therefore arises for our consideration is mainly whether the workers are entitled to the payment of a bonus in spite of the employer having worked at a loss during the year and incidentally whether the workers have any right, title or interest in the reserves and the undistributed profits of the previous years. The primary meaning of the word \" bonus \" according to the definition given in the New English Dictionary is:-\" A boon or gift over and above what is nominally due as remuneration to the receiver and which is therefore something wholly to the good \". This definition was adopted by Stirling J. in In re Eddystone Marine Insurance Co. (1). Webster's International Dictionary defines bonus as \"something given in addition to what is ordinarily received by or strictly due to the recipient \". The Oxford Concise Dictionary defines it as \" something to the good, into the bargain (and as an example) gratuity to workmen beyond their wages\". (1) L. R. (I894) W. N. 30. Corpus Juris Secundum, Volume XI, at page 515 ascribes the following meanings to the word bonus: \" An allowance in addition to what is usual current or stipulated ; a sum given or paid beyond what is legally required to be paid to the recipient; something given in addition to what is ordinarily received by or strictly due to the recipient\" and adds: It has been said to carry the idea of something uncertain and indefinite, something which may or may not be paid depending on varying circumstances and under particular conditions has been said to imply a benefit accruing to him who offers it and an inducement to the offeree.\" This imports the conception of a boon, a gift or a gratuity otherwise described as an ex gratia payment. The word 'bonus' has however acquired a secondary meaning in the sphere of industrial relations. It is classified amongst the methods of wage payment. It has been used especially in the United States of America to designate an award in addition to the contractual wage. It is usually intended as a stimulus to extra effort but sometimes represents the desire of the employer to share with his workers the fruits of their common enterprise. (Vide Encyclopaedia Britannica, Volume III, page 856). The Pocket Part of the Corpus Juris Secundum, Volume XI, under the heading \"As Compensation for Services\" quotes the following passage from Attorney-General v. City of Woburn(1) :- \"The word 'bonus' is commonly used to denote an increase in salary or wages in contracts of employment. The offer of a bonus is the means frequently adopted to secure continuous service from an employee to enhance his efficiency and to augment his loyalty to his employer and the employee's acceptance of the offer by performing the things called for by the offer binds employer to pay the bonus so called.\" It also gives another meaning of the word bonus', viz., \"increased compensation for services already (1) 317 Mass. 465. rendered gratuitously or for a prescribed compensation where there is neither express or implied understanding that additional compensation may be granted.\" This imports the conception that even though the payment be not strictly due to the recipient nor legally enforceable by him, a claim to the same may be laid by the employee under certain conditions and if such claim is entertained either by an agreement with the employer or by adjudication before a properly constituted Tribunal -as on an industrial dispute arising, the same would ripen into a legally enforceable claim. This position was recognised in Sutton v. Attorney-General (1), where the Earl of Birkenhead observed \"The term 'bonus' may of course be properly used to describe payments made of grace and not as of right. But it nevertheless may also include, as here, payments made because legally due but which the parties contemplate will not continue indefinitely\", and in National Association of Local Government Officers v. Bolton Corporation(2) \"This payment, if made, cannot properly in my opinion be regarded as a mere gratuity. Though there is an element of bounty in it the bounty, if granted, is given for good reasons of national policy............ I do not see why this does not fall within the definition of trade dispute just as much as a dispute as to the rate of wages or salary.\" To a similar effect are the observations in Kenicott v. Supervisors of Wayne County (1):- \"But second, the meaning of the word 'bonus' is not given to it by the objection. It is thus defined by Webster. 'A premium given for a loan or a charter or other privilege granted to a company; as, the bank paid a bonus for its charter; a sum paid in addition to a stated compensation'. It is not a gift or gratuity, but a sum paid for services, or upon a consideration in addition to or in excess of that which would ordinarily be given\", (1) (1923) 39 T.L.R. 294, 297, (3) (1873) 83 U.S. 452 21 L., Ed. 319. (2) [1943] A.C. 166, I87. and also in Great Western Garment Co. Ltd. v. Minister of National Revenue (1):- \"A bonus may be a mere gift or gratuity as a gesture of goodwill and not enforceable, or it may be something which an employee is entitled to on the happening of a condition precedent and is enforceable when the condition is fulfilled. But in both cases it is something in addition to or in excess of that which is ordinarily received.\" The Textile Labour Inquiry Committee defined 'bonus' as follows :- \"The term bonus is applied to a cash payment made in addition to wages. It generally represents the cash incentive given conditionally on certain standards of attendance and efficiency being attained.\" There are however two conditions which have to be satisfied before a demand for bonus can be justified and they are, (1) when wages fall short of the living standard and (2) the industry makes huge profits part of which are due to the contribution which the workmen make in increasing production. The demand for bonus becomes an industrial claim when either or both these conditions are satisfied. The principles for the grant of bonus were discussed and a formula was evolved by the Full Bench of the Labour Appellate Tribunal in Millowners' Association, Bombay v. Rashtreeya Mill Mazdoor Sangh, Bombay (2) \"As both labour and capital contribute to the earnings of the industrial concern, it is fair that labour should derive some benefit, if there is a surplus after meeting prior or necessary charges\" and the following were prescribed as the first charges on gross profits, viz., (1) Provision for depreciation, (2) Reserves for rehabilitation, (3) A return at 6 per cent. on the paid up capital. (4) A return on the working capital at a lesser rate than the return on paid up capital. The surplus that remained after meeting the aforesaid deductions would be available for distribution as bonus. (1) (1948) D.L.R. 225, 233. (2) (1950) 2 L.L.J. 247. It is therefore clear that the claim for bonus can be made by the employees only if as a result of the joint contribution of -capital and labour the industrial concern has earned profits. If in any particular year the working of the industrial concern has resulted in loss there is no basis nor justification for a demand for bonus. Bonus is not a deferred wage. Because if it were so it would necessarily rank for precedence before dividends' The dividends can only be paid out of profits and unless and until profits are made no occasion or question can also arise for distribution of any sum as bonus amongst the employees. If the industrial concern has resulted in a trading loss, there would be no profits of the particular year available for distribution of dividends, much less could the employees claim the distribution of bonus during that year. This has been clearly recognised even in the various decisions of the Labour Appellate Tribunal, e.g., Nizam Sugar Factory Ltd., Hyderabad v. Their Workmen(1), Textile Mills, Madhya Pradesh v. Their Workmen (2) and Famous Cine Laboratory v. Their Workmen (3). This was also the basis of the demand of the respondent in the case before us, its case being that the appellant had reaped substantial profits during the year 1949. This case was negatived by the Industrial Court as well as the Labour Appellate Tribunal, both of whom held that the working of the appellant during the year 1949 had resulted in a loss. Whereas the Industrial Court declined to grant the respondent any relief because the working of the appellant during the year had resulted in a loss, the Labour Appellate Tribunal made a special case for the respondent in spite of its concurrence with that finding of the Industrial Court. It is significant to observe that this principle was accepted by the Labour Appellate Tribunal itself. \"As at present advised a claim for bonus which had been rested on profits earned should ordinarily be determined on the basis of the profits earned in the year under claim and that the scale of bonus should be determined on the quantum of profits earned in the (1) (1952) I L.L.J. 386. (2) (1952) 2 L.L.J. 625. (3) (1953) I L.L.J. 466. year. So, it would follow that if there is trading loss in the year under claim, bonus should not ordinarily be awarded. It however observed: \" But, in our opinion, that should not be the universal rule. Considerations of social justice cannot be disregarded altogether, in relations between capital and labour. There may be special cases, and we consider the case before us to be one, where social justice would demand that labour should have bonus for the year where for that very year capital had not only a.. reasonable return but much in excess of that. \" The Labour Appellate Tribunal did not accept the contention of the respondent that bonus should be linked to dividends nor did it rest its decision on the respondent having a right, title and interest in the reserves and the undistributed profits of the appellant. Linking of bonus to dividend would obviously create difficulties. Because if that theory was accepted a company would not declare any dividends but accumulate the profits, build up reserves and distribute those profits in the shape of bonus shares or reduce the capital in which event the workers would not be entitled to claim anything as and by way of bonus. The workers not being members of the company would also not have any right, title and interest in the reserves or the undistributed profits which would form part of the assets of the company. Even on a winding up of a company the property of the company would be applied in satisfaction of its liabilities pari passu and, unless the articles of association of the company otherwise provided, in distribution amongst the members according to their rights and interest in the company. The employees would in no event be entitled to any share or interest in the assets and the capital of the company. A transfer of moneys from these reserves or the undistributed profits would therefore not enure for the benefit of the workers. The shareholders only would be entitled to such benefit and the mere fact that dividends were declared and paid to the shareholders out of such reserves and undistributed profits would not entitle the workers to demand bonus when in fact the working of the industrial concern during the particular year had showed a loss. It has also got to be remembered that the labour force employed in an industrial concern is a fluctuating body and it cannot be predicated of the labour force in a particular year that it represents the past and the present workers, so that it can claim to demand bonus out of the reserves or undistributed profits of the Previous years. On the accounts of each year being made up and the profits of the industrial concern being ascertained the workers during the particular year have their demand for bonus fully satisfied out of the surplus profits and the balance of profits is allocated and carried over in the accounts. No further claimed payment of bonus out of those reserves or undistributed profits can therefore survive. To admit the claim for bonus out of the reserves transferred to the profit and loss account would tantamount to allowing a second bonus on the same profits in respect of which the workers had already received their full bonus in the previous year. The labour force which earns the profits of a particular year by collaborating with the employers is distinct from the one which contributed to the profits of the previous years and there is no continuity between the labour forces which are employed in the industrial concern during the several years. The ratio which applies in the case of the shareholders who acquire the right, title and interest of their predecessorsin-interest does not apply to the labour force and the fact that the shareholders get a dividend by transfer of funds from the reserves and undistributed profits of the previous years would not entitle the workers to demand bonus out of those funds if the working of the industrial concern during the particular year has resulted in a trading loss. The considerations of social justice imported by the Labour Appellate Tribunal in arriving at the decision in favour of the respondent were not only irrelevant but untenable. Social justice is a very- vague and indeterminate expression and no clear-cut definition can be laid down which will cover all the situations. Mr. Isaacs, the learned counsel for the respondent,. attempted to give a definition in the following terms :- \"social justice connotes the balance of adjustments of the various interests concerned in the social and economic structure of the State, in order to promote harmony upon an ethical and economic basis\" and he stated that there were three parties concerned here, viz., the employers, the labour and the State itself, and the conception of social justice had to be worked out in this context. Without embarking upon a discussion as to the exact connotation of the expression \"social justice\" we may only observe that the concept of social justice does not emanate from the fanciful notions of any particular adjudicator but must be founded on a more solid foundation. Indeed the Full Bench of the Labour Appellate Tribunal evolved the abovequoted formula with a view to dispensing social justice between the various parties concerned. It adopted the following method of approach at page 1258 of that judgment :- \" Our approach to this problem is motivated by the requirement that we should ensure and achieve industrial peace which is essential for the development and expansion of industry. This can be achieved by having a contented labour force on the one hand, and on the other hand an investing public who would be attracted to the industry by a steady and progressive return on capital which the, industry may be able to offer. \" This formula was reiterated in Textile Mills, M. P. Their Workmen(1), and Famous Cine Laboratory v. ,Their Workmen( 2 ), and in the latter case it deprecated the idea of adjudicators importing considerations of social justice which were not comprised in that formula :- \" And what is social justice ? Social 'justice is not the fancy of any individual adjudicator; if it were so then ideas of social justice might vary from adjudicator to adjudicator over all parts of India. In our Full Bench decision (See 1950,2 L.L.J., p. 1247), we care. fully considered the question of social justice in relation (1) (1952) 2 L.L.J. 625. (2) (1953) 1 L.L.J. 466. to bonus, and there we equated the rights and liabilities of employers and workmen with a view to achieving a just formula for the computation of bonus. That Full Bench decision stands, and this tribunal and all other tribunals are bound by it. \" Without committing ourselves to the acceptance of the above formula in its entirety we may point out that the Labour Appellate Tribunal did not apply its own formula to the facts of the present case. It is also significant to note that even while importing considerations of social justice the Labour Appellate Tribunal was oblivious of the fact that it was by their own acts of indiscipline and strike that the workers of the appellant company themselves contributed, to the trading losses incurred by the appellant and it hardly lay in their mouth then to contend that they were none the less entitled to a payment of bonus commensurate with the dividend paid to the shareholders out of the undistributed profits of the previous years. The Labour Appellate Tribunal also overlooked the fact that but for the Public Companies (Limitation of Dividend) Ordinance of 1948 the whole of the profits of 1948 could have been distributed after paying the workers bonus in that year of four annas in the rupee. We may before concluding refer to an argument which was addressed to us by Mr. Isaacs, the learned counsel for the respondent, that this Court under article 136 should not interfere with the decisions of the tribunals set up by the Industrial Disputes Act, 1947. This contention can be shortly answered by referring to our decision in Bharat Bank Ltd., Delhi v. Employees of the Bharat Bank Ltd., Delhi(1), where we held that the Industrial Tribunals were tribunals within the meaning of article 136 and further that article 136 has vested in this, Court exceptional and overriding power to interfere where it reaches the conclusion that a person has been dealt with arbitrarily or that a Court or tribunal within the territory of India has not given a fair deal to a litigant. (Vide (1) (1950] S.C.R. 459. Dhakeswari Cotton Mills Ltd. v. Commissioner of Income-tax, West Bengal(1). The result therefore is that the decision of the Labour Appellate Tribunal appealed against must be reversed and that of the Industrial Court (Textiles and Hosiery), Kanpur, restored. The appeal will accordingly be allowed with costs. 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{"id": "26855411", "text": "REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO(S). 521 OF 2022 (Arising out of SLP(Civil) No(s). 22539 of 2014) MESSER GRIESHEIM GmbH (NOW CALLED AIR LIQUIDE DEUTSCHLAND GmbH) \u2026APPELLANT(S) VERSUS GOYAL MG GASES PVT. LTD. \u2026RESPONDENT(S) JUDGMENT Rastogi, J. 1. Leave granted. 2. The appellant/decree holder has challenged the judgment of the Division Bench of the High Court of Delhi dated 1 st July, 2014 Signature Not Verified Digitally signed by Anita Malhotra Date: 2022.01.28 17:06:51 IST Reason: relegating to file a petition for execution of a money decree dated 7 th February, 2006(in excess of Rs. 20 lakhs) of a foreign Court indisputedly notified as a superior Court of a reciprocating territory before the District Court in view of Section 44A of the Code of Civil Procedure, 1908(hereinafter being referred to as the \u201cCode\u201d). 3. It is an old saying that the difficulties of the litigant in India begin when he has obtained a decree. The evil was noticed as far back in 1872 by the Privy Council in relation to the difficulties faced by the decree holder in execution of the decree (MIA p.612) 1. After more than a century, there has been no improvement and still the decree holder faces the same problem what was being faced in the past. A litigant coming to Court seeking relief is not interested in receiving a paper decree when he succeeds in establishing his case. What he primarily wants from the Court of Justice is the relief and if it is a money decree, he wants that money what he is entitled for in terms of the decree, must be satisfied by the judgment debtor at the earliest possible without fail keeping in view the reasonable restrictions/rights which are available to the judgment debtor under the provisions of the statute or the code, as the case may be. 1 General Manager of the Raj Durbhunga v. Coomar Ramaput Sing, (1871-72) 14 MIA 605 : 20 ER 912 4. Instant case is the live illustration before us where the decree holder was able to get a money decree of a foreign Court which is notified as a superior Court of a reciprocating territory way back on 7th February, 2006 and after 16 years have been rolled by, still the screen is smokey and not clear as to which is the forum where he could approach for execution of a decree. 5. The brief facts culled out from the record are that the appellant initiated proceedings before the High Court of Justice, Queen\u2019s Bench Division, Commercial Court, United Kingdom(\u201cEnglish Court\u201d) which is a superior Court of a reciprocating territory(namely, United Kingdom of Great Britain and Northern Island) notified under Section 44A of the Code vide Notification No. SRO 399 dated 1st March, 1953 issued by the Ministry of Law as amended by GSR 201 dated 13 th March, 1958. 6. Earlier, a default decree was passed due to non\u00adappearance of the respondent/judgment debtor in UK Court on 6th February, 2003. The appellant issued a winding up notice to the respondent, who objected the same as the judgment dated 6 th February, 2003 was a default decree. To meet the objection raised by the respondent, the appellant approached the English Court and sought setting aside of the default decree and prayed for passing a decree on merits of the case. At this juncture, the respondent entered appearance and the English Court by a judgment and decree dated 7th February, 2006 granted a money decree for a principal sum of US $ 5,824,564.74. 7. It is pertinent to note that the respondent did not file any appeal against the judgment and decree dated 7 th February 2006 and that has attained finality. 8. The total decretal amount indisputedly on the date of filing of the execution petition before the Delhi High Court on 27 th April, 2006 was exceeding Rs. 20 lakhs which was the pecuniary limits of the Delhi High Court in terms of Section 5(2) of the Delhi High Court Act, 1966(hereinafter being referred to as \u201cAct 1966\u201d) which was later enhanced to Rs.2 crores in the year 2015, to entertain the execution petition as the principal Court of original jurisdiction. 9. It has been alleged by the appellant that the decretal amount, if it is taken at the face value as on 20 th January, 2022, may come to approximately Rs. 99 crores. 10. The appellant filed a petition for execution of money decree in the High Court of Delhi on 27th April, 2006. A reply to the execution petition was filed by the respondent on 17 th January 2007, raising several objections which are available at its command as envisaged under Section 13 of the Code. Later a further objection was raised that the High Court of Delhi has no jurisdiction to entertain the execution petition in view of Section 44A of the Code. 11. Learned Single Judge of the High Court overruled the preliminary objections and held that taking value of the execution of the money decree dated 7th February, 2006 of the English Court exceeding Rs. 20 lakhs, at given point of time, i.e., 27 th April, 2006(the day on which the execution petition was filed), High Court of Delhi holds the exclusive jurisdiction of ordinary original civil jurisdiction and after meeting out other objections on merits decided the execution petition by a judgment dated 29 th November, 2013. The operative part of the judgment are as under:\u00ad E.A. No. 653 of 2009 69. This is an application by the DH for a direction to the JD to deposit the original title deeds of Sahibabad property. 70. For the reasons stated therein, the application is allowed and a direction is issued to the JD to deposit the original title deeds of the property, land measuring 18774 sq. yds. At 8/7, Site\u00adIV, Sahibabad, Industrial Area, Sahibabad, District Ghaziabad in the Court within two weeks, and when so deposited, it shall be kept in a sealed cover by the Court. At the time of filing the original title deeds, the JD will deliver to the learned counsel for the DH a photocopy thereof. EA No. 654 of 2009 71. By this application, the DH seeks a clarification that the order dated 3rd November, 2009 passed by the Court releasing the lien on the property at Ghaziabad, Uttar Pradesh should be made conditional upon the Managing Director (MD) or any other competent director of the JD furnishing a written undertaking that the Ghaziabad property is free from all encumbrances and further than no written consent from the State Bank of India (\u2018SBI\u2019) under Clause 11 of the agreement for hypothecation of goods and assets dated 24th November, 2008 is required. 72. Despite notice having been served in both these applications way back on 20th November 2009, no reply has been filed to this application. 73. Consequently, the application is allowed and a direction is issued to the MD/authorized Director of the JD to file an affidavit in this Court within two weeks clarifying (a) that the property at Sahibabad, Ghaziabad is free from all encumbrances or charge as on the date of the order dated 3 rd November, 2009; (b) that no written consent from the SBI under Clause 11 of the Agreement for hypothecation of the goods and assets dated 24 th November, 2008 is required for enforcing the said order vis\u00ad\u00e0\u00advis the said Sahibabad property in terms of the statement made by the JD to the Court on 27th April, 2006 and (c ) that, as on date, there is no lien/charge etc. created on the Sahibabad property. 74. The application is disposed of.\u201d 12. The judgment of the learned Single Judge of the High Court of Delhi dated 29th November, 2013 was assailed by the respondent\u00ad judgment debtor before the Division Bench of the High Court. 13. The Division Bench of the High Court, in the facts and circumstances, considered it appropriate to examine the singular issue confining it to the jurisdiction of the High Court of Delhi in executing the money decree dated 7 th February, 2006 of the English Court, in exercise of its original jurisdiction in terms of Section 44A of the Code and after the parties being heard, arrived at the conclusion that Section 44A is an independent right conferred on a foreign decree holder for enforcement of its decree in India. It is a fresh cause of action and has no co\u00adrelation with jurisdictional issues. The scheme of Section 44A of the Code is alien to the scheme of domestic execution as provided under Section 39(3) of the Code and finally held that the High Court of Delhi, not being a District Court, in terms of Section 44A of the Code, is not vested with the jurisdiction to entertain execution petition and directed to be transferred to the Court of District Judge within whose jurisdiction the property sought to be attached is situated for being dealt with in accordance with law, which is a subject matter of challenge in appeal before us. 14. Dr. Abhishek Manu Singhvi, learned senior counsel appearing for the appellant submits that the jurisdiction for execution of a foreign Court\u2019s decree of a reciprocating territory vests with the High Court of Delhi, provided the value of the money decree exceeds the pecuniary limits as notified under Section 5(2) of the Act 1966. 15. Learned counsel further submits that it is not in dispute that the judgment and decree dated 7th February, 2006 has been passed by a notified superior Court of the reciprocating territory, namely, United Kingdom of Great Britain and Northern Ireland within the meaning of Section 44A of the Code in terms of a notification dated 1st March 1953 issued by the Ministry of Law. The High Court of Delhi also vests with the ordinary original civil jurisdiction, subject to the pecuniary limits as being notified under Section 5(2) of the Act 1966 and it would be impossible to read into Section 44A that even though the pecuniary jurisdiction of a civil Court(which lacks the pecuniary jurisdiction) is restricted, only for the purpose of execution of a foreign decree, it becomes a District Court in respect of the matters which fall within the ordinary civil jurisdiction of the High Court and when there is a split jurisdiction in the cities like Delhi, Kolkata, Chennai and Mumbai, the High Court would have to be considered to be included as \u201ca principal civil Court of original jurisdiction\u201d where it exceeds its pecuniary jurisdiction as being contemplated in the respective statutes alike Section 5(2) of the Act 1966 in the instant case. 16. Learned counsel further submits that there can be two or more Courts which are concurrently a principal civil Court of original jurisdiction subject to their pecuniary limits as being envisaged under Section 5(2) of the Act 1966. If that being so, if pecuniary jurisdiction exceeds what is prescribed/notified under the Act, it is the High Court of Delhi which will be considered to be the principal Court of original civil jurisdiction as defined under Section 5(2) of the Act 1966 and the execution petition being a continuation of the suit proceedings, the Division Bench of the High Court has committed a manifest error in holding that the High Court of Delhi is not vested with the jurisdiction to entertain an execution petition as being a District Court defined in terms of Section 44A of the Code. 17. Per Contra, Mr. Rakesh Dwivedi, learned senior counsel for the respondent, while supporting the finding recorded in the impugned judgment, submits that Section 44A is an independent right conferred on a foreign decree holder for enforcement of its decree in India and the scheme of Section 44A of the Code is alien to the scheme of domestic execution as provided under Section 39(3) of the Code. The domestic decree can indeed be executed by the Court which passed the decree or Court of competent jurisdiction to which it is transferred for execution. So far as execution of foreign decree is concerned, it is being governed by an independent right conferred under Section 44A of the Code which unequivocally confers exclusive jurisdiction in this regard on a \u201cDistrict Court\u201d and the words mandating the competence of the executing Court, to try the original cause, in which the decree was passed, are conspicuous by their absence, in this provision. 18. To be more specific, learned counsel submits that Section 44A of the Code is in the nature of an independent, enabling provision which gives the decree holder a fresh and new cause of action irrespective of the original character of the cause in which the decree came to be passed. 19. Learned counsel further submits that so far as the pecuniary competence to try a suit of the decretal amount is concerned, it may be in the context of the domestic decree for execution as referred to under Sections 38 and 39 of the Code and once Section 44A confers exclusive jurisdiction on District Court in which the money decree of a foreign Court has to be filed for execution, no other Court holds competence other than the District Court for execution of a foreign decree. 20. Learned counsel further submits that Section 5(2) of the Act 1966 conferred with a limited ordinary original civil jurisdiction qua \u2018suits\u2019 above a certain pecuniary value and further submits that the expression \u201csuit\u201d as used in Section 5(2) of the Act 1966 has to be understood in its ordinary, limited sense of a \u2018Civil Suit\u2019, and will not include execution proceedings. Section 4 of the Delhi High Court(Amendment) Act, 2003 draws a distinction between a \u201csuit\u201d and \u201cother proceedings\u201d and submits that it is the District Court alone which holds jurisdiction for executing a foreign decree and no error has been committed by the High Court in the impugned judgment which may call for interference of this Court. 21. We have heard learned counsel for the parties and with their assistance perused the material available on record. 22. The question that emerges for our consideration is whether the High Court of Delhi in exercise of its original jurisdiction is a competent Court to entertain a petition for executing a money decree(in excess of Rs.20 lakhs) of a foreign Court which is notified as a superior Court of reciprocating territory under Section 44A of the Code. 23. It is not disputed that so far as the expression \u201csuperior Court of any reciprocating territory\u201d as defined under Section 44A of the Code is concerned, the judgment and decree dated 7 th February, 2006 has been passed by the notified superior Court of the reciprocating territory, namely, United Kingdom of Great Britain and Northern Ireland within the meaning of Section 44A of the Code vide notification dated 1st March, 1953 issued by the Ministry of Law, thus it leaves no doubt that the decree of the High Court of England would be considered to be a decree of superior Court of a reciprocating territory. 24. In order to appreciate the submissions made, it may be relevant to first take a look at the scheme of the Code and also relevant provisions of the Act 1966 which are reproduced hereunder:\u00ad \u201cSection 2(4) of the Code \u2013 \u201cDistrict\u201d \u201cdistrict\u201d means the local limits of the jurisdiction of a principal Civil Court of original jurisdiction (hereinafter called a \u201cDistrict Court\u201d), and includes the local limits of the ordinary original civil jurisdiction of a High Court; Section 6 of the Code \u2013 \u201cPecuniary Jurisdiction\u201d Save in so far as is otherwise expressly provided, nothing herein contained shall operate to give any Court jurisdiction over suits the amount or value of the subject\u00admatter of which exceeds the pecuniary limits (if any) of its ordinary jurisdiction. Section 13 of the Code \u2013 \u201cWhen Foreign Judgement not Conclusive\u201d A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except\u2014 (a) where it has not been pronounced by a Court of competent jurisdiction; (b) where it has not been given on the merits of the case; (c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of India in cases in which such law is applicable; (d) where the proceedings in which the judgment was obtained are opposed to natural justice; (e) where it has been obtained by fraud; (f) where it sustains a claim founded on a breach of any law in force in India. Section 44A of the Code \u00ad \u201cExecution of Decrees passed by Courts in reciprocating territory\u201d (1) Where a certified copy of a decree of any of the superior courts of any reciprocating territory has been filed in a District Court, the decree may be executed in India as if it had been passed by the District Court. (2) Together with the certified copy of the decree shall be filed a certificate from such superior court stating the extent, if any, to which the decree has been satisfied or adjusted and such certificate shall, for the purposes of proceedings under this section, be conclusive proof of the extent of such satisfaction or adjustment. (3) The provisions of Section 47 shall as from the filing of the certified copy of the decree apply to the proceedings of a District Court executing a decree under this section, and the District Court shall refuse execution of any such decree, if it is shown to the satisfaction of the court that the decree falls within any of the exceptions specified in clauses (a) to (f) of Section 13. Explanation 1.\u2014\u201cReciprocating territory\u201d means any country or territory outside India which the Central Government may, by notification in the Official Gazette, declare to be a reciprocating territory for the purposes of this section; and \u201csuperior courts\u201d, with reference to any such territory, means such Courts as may be specified in the said notification. Explanation 2.\u2014\u201cDecree\u201d with reference to a superior court means any decree or Judgment of such Court under which a sum of money is payable, not being a sum payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty, but shall in no case include an arbitration award, even if such an award is enforceable as a decree or Judgment.]] Section 5 Delhi High Court Act, 1966 \u2013 \u201cJurisdiction of High Court of Delhi\u201d (1) The High Court of Delhi shall have, in respect of the territories for the time being included in the Union Territory of Delhi, all such original, appellate and other jurisdiction as, under the law in force immediately before the appointed day, is exercisable in respect of the said territories by the High Court of Punjab. (2) Notwithstanding anything contained in any law for the time being in force, the High Court of Delhi shall also have in respect of the said territories ordinary original civil jurisdiction in every suit the value of which exceeds Rupees twenty lakhs. 25. The expression \u2018District\u201d is defined under Section 2(4) of the Code and the term \u201cDistrict Court\u201d referred under Section 44A of the Code although not defined, but on conjoint reading of the provision makes it clear that it refers to the local limits of the jurisdiction of a principal civil Court of original jurisdiction (provisions of the Code called a \u201cDistrict Court\u201d) and it includes the local limits of the ordinary original civil jurisdiction of a High Court and it is not disputed that principal civil Court of original jurisdiction is normally a District Court (with whatever change in the nomenclature) and the High Courts in India exercising ordinary original civil jurisdiction are not too many, but where there is a split jurisdiction based on its pecuniary value, notified from time to time, the District Court or the High Court in its ordinary original civil jurisdiction is competent to exercise power for execution of decree, including money decree of the foreign Court of reciprocating jurisdiction, provided other conditions are complied with as contemplated under Section 44A of the Code. 26. Section 44A of the Code provides for execution of decrees passed by the foreign Courts in reciprocating territories. It, inter alia, stipulates that where a certified copy of a decree of any of the superior Court of any reciprocating territory has been filed in a District Court, the decree may be executed in India as if it had been passed by a District Court. Together with the certified copy of the decree, a certificate from such superior court is to be filed stating the extent, if any, to which the decree has been satisfied or adjusted. Such a certificate is the conclusive proof of the extent of such satisfaction or adjustment. Sub\u00adsection 3 of Section 44A of the Code further lays down that provisions of Section 47 of the Code shall apply to such execution proceedings and the Court can refuse execution of any such decree, if it is shown to the satisfaction of the Court that the decree falls within any of the exceptions specified in clauses (a) to (f) in Section 13 of the Code. 27. The ordinary original civil jurisdiction of the High Court is always exercised, based on pecuniary limits. It would be impossible to read into Section 44A of the Code that even though the pecuniary jurisdiction of Civil Court is restricted, still for the purpose of execution of a foreign decree, it becomes the District Court in respect to those matters which fall within the ordinary original civil jurisdiction of the High Court and the expression \u201cdistrict\u201d defined under Section 2(4) of the Code will have to be given its true effect. To read the expression \u201cDistrict Court\u201d in Section 44A for execution of foreign decree, it will be construed to be a Court holding ordinary original civil jurisdiction in terms of its pecuniary limits as being notified under Section 5(2) of the Act 1966. 28. It leaves no manner of doubt that once the pecuniary jurisdiction at the given point of time exceeded Rs. 20 lakhs as notified by the High Court under Section 5(2) of the Act 1966 (later vide notification dated 10th August, 2015 (w.e.f. 26th October, 2015) pecuniary limits has been revised to Rs.2 crores), it is the High Court of Delhi which holds its exclusive jurisdiction as ordinary original civil jurisdiction to execute a foreign decree under Section 44A of the Code and it goes without saying that execution always is in continuation of the proceedings. 29. Section 24 of the Punjab Courts Act 1918, of which the Division Bench has put its emphasis, which is applicable to Delhi, the Court of District Judge would be the principal civil Court of original jurisdiction. Under Section 5(1) of the Act 1966, the High Court of Delhi exercises all such original, appellate and other jurisdiction as was exercisable by the High Court of Punjab in the Union Territory of Delhi. Then, there is Section 5(2) of the Act 1966 which starts with a non\u00adobstante clause which empowers the High Court of Delhi to exercise its ordinary original civil jurisdiction in every suit where the pecuniary value exceeds, as being notified by the competent authority and thus, the High Court of Delhi indeed holds original civil jurisdiction in a suit where the value exceeds its pecuniary limits and if Section 24 of the Punjab Courts Act, 1918 is read with Section 5(2) of the Act 1966, it is quite clear that certain jurisdiction has been taken away from the District Court and conferred with the High Court of Delhi and this original civil jurisdiction is only in respect to the suits where the pecuniary limit exceeds as notified by the authority under Section 5(2) of the Act 1966 and that would make the High Court of Delhi, the principal Court of original civil jurisdiction, for all practical purposes. 30. The Division Bench has proceeded on the basis of the expression \u201cDistrict Court\u201d, as being referred under Section 44A of the Code but it has not taken into consideration the other relevant provisions of which a reference has been made by us while coming to the conclusion that the expression \u201cDistrict\u201d as defined under Section 2(4) of the Code only lays down the limits of the jurisdiction of the principal civil Court of original jurisdiction and that includes the ordinary original civil jurisdiction of the High Court and once the pecuniary jurisdiction exceeds as being notified under the relevant statute, the jurisdiction vests exclusively with the High Court as an ordinary original civil jurisdiction for execution of a foreign decree under Section 44A subject to the just objections which are available to the parties/judgment debtor as envisaged under Section 13 of the Code. 31. Consequently, the appeal succeeds and accordingly allowed. The judgment of the Division Bench of the High Court dated 1 st July 2014 is hereby quashed and set aside. Since the parties have not addressed on merits, E.F.A.(O.S.) No. 3 of 2014 is restored on the file of the Division Bench of the High Court of Delhi. This being an old matter where the foreign decree dated 7 th February, 2006 could not have been executed for almost 16 years by this time, we consider it appropriate to observe that let the Division Bench may take up the matter on priority and decide the same on its own merits as expeditiously as possible keeping in view its long awaiting execution in accordance with law, but in no case later than four months. 32. Pending application(s), if any, stand disposed of. \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026J. (AJAY RASTOGI) \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026...J. (ABHAY S. 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{"id": "62854486", "text": "* IN THE HIGH COURT OF DELHI AT NEW DELHI CRL.M.C. 1410/2018 Reserved on : 26.02.2020 Date of Decision : 03.03.2020 IN THE MATTER OF: SUNITA PALTA & ORS ..... Petitioners Through: Mr. Saraswata Mohapatra, Advocate Versus M/S KIT MARKETING PVT LTD ..... Respondent Through: Mr. Rajiv Sharma, Advocate CORAM: HON'BLE MR. JUSTICE MANOJ KUMAR OHRI 1. The present proceedings are instituted under Section 482 Cr.P.C challenging the order dated 14.02.2017 passed by the Metropolitan Magistrate in CC No.874/2017 whereby the present petitioners were summoned for the offence punishable under Section 138 N.I. Act. 2. The respondent, a private limited company, had filed a complaint through its authorized representative stating that it was engaged in the business of plywood in the name and style of M/s Kit Marketing Private Limited. The accused are regular purchasers of goods from the complainant on credit basis and have made regular payment towards sale consideration from time to time in the past. On 01.12.2016, there was an outstanding balance of Rs.36,46,758/- payable by the accused against which following four account payee cheques were issued: Cheque Nos Dated Amount in Rs 489872 02.09.2016 95,718/- 489853 09.09.2016 7,62,548/- 489897 19.09.2016 3,31,740/- 640194 07.11.2016 1,55,142/- 3. All the aforesaid cheques were drawn on State Bank of India, Nehru Place, New Delhi from the account maintained by accused company. The cheques were presented by the complainant in his bank namely Axis Bank Limited, Mundka Delhi within the period of limitation however the same were returned unpaid to the complainant vide bank's return memo dated 21.11.2016 and 13.12.2016 with the remarks \"Funds Insufficient\". 4. The complainant issued a legal notice of demand dated 19.12.2016, through speed post, calling upon the accused to make payment within 15 days from the date of its receipt. The notices were duly received by the accused persons on 20.12.2016. Since no payment was made within the statutory period of 15 days, a complaint under Section 138 read with Sections 141/142 of NI Act was filed on 30.01.2017. The complaint has been filed against the accused company along with 7 other accused persons including the present petitioners. 5. Learned counsel for the petitioners contended that the petitioners are the independent Non-executive Additional Directors and were never involved in the day to day affairs of the company at any point of time. In this regard, he has referred to the complaint where the present petitioners were wrongly described as Directors. He also referred to para 17 of the complaint which contained allegations against the present petitioners and the same is reproduced hereunder: \"17. That the accused no. 1 is liable because the cheques in question have issued on behalf of the accused no. 1 and the accused no.2 to 6 are liable being the managing directors and directors of the accused no.1 and also being responsible for the control and management and day to day affairs of the accused no.1 and the accused no. 7 and 8 are liable being the signatories of the cheques in question.\" 6. The present petitioners were impleaded as accused nos. 5, 6 & 3. Learned counsel for the petitioners urged that it is an admitted case of the respondent that the petitioners were neither the Managing Directors nor the signatories to the cheques in question. Learned counsel for the petitioners also relied on the Form 32 with respect to Sunita Palta (petitioner No.1) and Bhagwan Singh Duggal (petitioner no.2) submitted on 29.06.2013 and 13.07.2013 respectively, showing them as independent Non-executive Additional Directors. Similarly, Form No. DIR-12 with respect to Ashwini Kumar Singh (petitioner No.3) shows his status as independent Non-executive Director w.e.f. 01.04.2014. 7. Learned counsel for the petitioners has also referred to the Annual Report for the year 2016-17 of the accused company and the certificate issued by the Company Secretary of the accused company which also shows the status of petitioners as independent Directors. 8. On the other hand, learned counsel for the respondent has supported the impugned order. It was submitted that the petitioners have the remedy to appear and place their defence before the trial court. He, however, has not disputed the position with respect to Form 32/Form No. DRI-12 filed by the petitioners. He submitted that the petitioners were named as Directors in the complaint on the basis of the information which was downloaded from the official website of ROC. 9. I have heard learned counsels for the parties and have also gone through the case records. 10. The vicarious liability of a person arises in terms of Section 141 of the Negotiable Instrument Act. In S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla reported as (2005) 8 SCC 89, it was held as follows:- \"10. While analysing Section 141 of the Act, it will be seen that it operates in cases where an offence under Section 138 is committed by a company. The key words which occur in the section are 'every person'. These are general words and take every person connected with a company within their sweep. Therefore, these words have been rightly qualified by use of the words: 'Who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence, etc' What is required is that the persons who are sought to be made criminally liable under Section 141 should be, at the time the offence was committed, in charge of and responsible to the company for the conduct of the business of the company. Every person connected with the company shall not fall within the ambit of the provision. It is only those persons who were in charge of and responsible for the conduct of business of the company at the time of commission of an offence, who will be liable for criminal action. It follows from this that if a director of a company who was not in charge of and was not responsible for the conduct of the business of the company at the relevant time, will not be liable under the provision. The liability arises from being in charge of and responsible for the conduct of business of the company at the relevant time when the offence was committed and not on the basis of merely holding a designation or office in a company. Conversely, a person not holding any office or designation in a company may be liable if he satisfies the main requirement of being in charge of and responsible for the conduct of business of a company at the relevant time. Liability depends on the role one plays in the affairs of a company and not on designation or status. If being a director or manager or secretary was enough to cast criminal liability, the Section would have said so. Instead of 'every person' the section would have said 'every director, manager or secretary in a company is liable'..., etc. The legislature is aware that it is a case of criminal liability which means serious consequences so far as the person sought to be made liable is concerned. Therefore, only persons who can be said to be connected with the commission of a crime at the relevant time have been subjected to action. xxx xxx xxx 18. To sum up, there is almost unanimous judicial opinion that necessary averments ought to be contained in a complaint before a person can be subjected to criminal process. A liability under Section 141 of the Act is sought to be fastened vicariously on a person connected with a company, the principal accused being the company itself. It is a departure from the rule in criminal law against vicarious liability. A clear case should be spelled out in the complaint against the person sought to be made liable. Section 141 of the Act contains the requirements for making a person liable under the said provision. That the respondent falls within the parameters of Section 141 has to be spelt out. A complaint has to be examined by the Magistrate in the first instance on the basis of averments contained therein. If the Magistrate is satisfied that there are averments which bring the case within Section 141, he would issue the process. We have seen that merely being described as a director in a company is not sufficient to satisfy the requirement of Section 141. Even a non-director can be liable under Section 141 of the Act. The averments in the complaint would also serve the purpose that the person sought to be made liable would know what is the case which is alleged against him. This will enable him to meet the case at the trial.\" 11. Again in, K.K. Ahuja v. V.K. Vora reported as (2009) 10 SCC 48, the vicarious liability of the officers of the company was summarised as under:- \"27. The position under Section 141 of the Negotiable Instruments Act, 1881 can be summarized thus: (i) If the accused is the Managing Director or a Joint Managing Director, it is not necessary to make an averment in the complaint that he is in charge of, and is responsible to the company, for the conduct of the business of the company. It is sufficient if an averment is made that the accused was the Managing Director or Joint Managing Director at the relevant time. This is because the prefix Managing to the word Director makes it clear that they were in charge of and are responsible to the company, for the conduct of the business of the company. (ii) In the case of a director or an officer of the company who signed the cheque on behalf of the company, there is no need to make a specific averment that he was in charge of and was responsible to the company, for the conduct of the business of the company or make any specific allegation about consent, connivance or negligence. The very fact that the dishonoured cheque was signed by him on behalf of the company, would give rise to responsibility under Sub-section (2) of Section 141. (iii) In the case of a Director, Secretary or Manager (as defined in Section 2(24) of the Companies Act) or a person referred to in Clauses (e) and (f) of Section 5 of Companies Act, an averment in the complaint that he was in-charge of, and was responsible to the company, for the conduct of the business of the company is necessary to bring the case under Section 141(1). No further averment would be necessary in the complaint, though some particulars will be desirable. They can also be made liable under Section 141(2) by making necessary averments relating to consent and connivance or negligence, in the complaint, to bring the matter under that sub-section. (iv) Other officers of a company cannot be made liable under Sub-section (1) of Section 141. Other officers of a company can be made liable only under Sub-section (2) of Section 141, be averring in the complaint their position and duties in the company and their role in regard to the issue and dishonour of the cheque, disclosing consent, connivance or negligence.\" 12. The issue relating to vicarious liability of a Non-executive Director came up before the Supreme Court in Pooja Ravinder Devidasani v. State of Maharashtra and Anr. reported as 2014(14) SCALE, and it was held as under:- \"17...Non-executive Director is no doubt a custodian of the governance of the Company but does not involve in the day-to- day affairs of the running of its business and only monitors the executive activity. To fasten vicarious liability under Section 141 of the Act on a person, at the material time that person shall have been at the helm of affairs of the Company, one who actively looks after the day-to-day activities of the Company and particularly responsible for the conduct of its business. Simply because a person is a Director of a Company, does not make him liable under the N.I. Act. Every person connected with the Company will not fall into the ambit of the provision. Time and again, it has been asserted by this Court that only those persons who were in charge of and responsible for the conduct of the business of the Company at the time of commission of an offence will be liable for criminal action. A Director, who was not in charge of and was not responsible for the conduct of the business of the Company at the relevant time, will not be liable for an offence under Section 141 of the N.I. Act. In National Small Industries Corporation (supra) this Court observed: \"13. Section 141 is a penal provision creating vicarious liability, and which, as per settled law, must be strictly construed. It is therefore, not sufficient to make a bald cursory statement in a complaint that the Director (arrayed as an accused) is in charge of and responsible to the company for the conduct of the business of the company without anything more as to the role of the Director. But the complaint should spell out as to how and in what manner Respondent 1 was in charge of or was responsible to the accused Company for the conduct of its business. This is in consonance with strict interpretation of penal statutes, especially, where such statutes create vicarious liability. 14. A company may have a number of Directors and to make any or all the Directors as accused in a complaint merely on the basis of a statement that they are in charge of and responsible for the conduct of the business of the company without anything more is not a sufficient or adequate fulfillment of the requirements under Section 141.\" 18. In Girdhari Lal Gupta Vs. D.H. Mehta & Anr. (1971) 3 SCC 189, this Court observed that a person 'in charge of a business' means that the person should be in overall control of the day to day business of the Company. 19. A Director of a Company is liable to be convicted for an offence committed by the Company if he/she was in charge of and was responsible to the Company for the conduct of its business or if it is proved that the offence was committed with the consent or connivance of, or was attributable to any negligence on the part of the Director concerned (See: State of Karnataka Vs. Pratap Chand & Ors). 20. In other words, the law laid down by this Court is that for making a Director of a Company liable for the offences committed by the Company under Section 141 of the N.I. Act, there must be specific averments against the Director showing as to how and in what manner the Director was responsible for the conduct of the business of the Company.\" 13. In Nandakumar & Ors. v. M/s ECE Industries Ltd. in SLP (Crl.) No.2770/2013 decided on 04.08.2014, while setting aside the order of dismissal of the petition of the accused filed under Section 482 Cr.P.C. by the High Court, the Supreme Court held as under:- \"Therefore, it is clear that merely being a Director of a company is not sufficient to make the person liable under Section 141 of the Act, till it is shown that the said Director was in-charge of and responsible for the conduct of his business. The Court below and the High Court erred in not appreciating the fact that the complainant in the mechanical way cited the names of the appellants which alleged to have been obtained from the website of the Ministry of Corporate Affairs and unnecessary dragged the appellants in litigation who were not directly charged or responsible for the company for the conduct of business. The requirement of Section 141 of the Negotiable Instrument Act is against the persons responsible for the conduct or business of the company at the relevant time. In absence of such allegation against the appellants, we hold that the complainant misused the mandate of Section 138 of the Negotiable Instrument Act.\" 14. Recently, in Chintalapati Srinivasa Raju v. Securities and Exchange Board of India reported as (2018) 7 SCC 443, it has been held as follows:- \"23....Non-Executive Directors are, therefore, persons who are not involved in the day-to-day affairs of the running of the company and are not in charge of and not responsible for the conduct of the business of the company.\" 15. To the similar effect are the decisions of Coordinate Benches of this Court in Kanarath Payattiyath Balrajh v. Raja Arora reported as 2017 SCC Online 7418, Har Sarup Bhasin v. M/s Origo Commodities India Pvt. Ltd. reported as 2020 SCC Online Del 9 and Chanakya Bhupen Chakravarti & Anr. v. Rajeshri Karwa & Ors. reported as 2018 SCC Online Del 12968. 16. Sub-sections (6) and (12) of Section 149 of the Companies Act, 2013 defines an \"independent director\" as under:- \"149. Company to Have Board of Directors xxx xxx xxx (6) An independent director in relation to a company, means a director other than a managing director or a whole-time director or a nominee director,-- (a) who, in the opinion of the Board, is a person of integrity and possesses relevant expertise and experience; (b) (i) who is or was not a promoter of the company or its holding, subsidiary or associate company; (ii) who is not related to promoters or directors in the company, its holding, subsidiary or associate company.\" xxx xxx xxx (12) Notwithstanding anything contained in this Act,- (i) an independent director; (ii) a non-executive director not being promoter or key managerial personnel, shall be held liable, only in respect of such acts of omission or commission by a company which had occurred with his knowledge, attributable through Board processes, and with his consent or connivance or where he had not acted diligently.\" 17. Admittedly, the petitioners are neither the Managing Directors nor the Authorized Signatories of the accused company. The accused company and the Managing Director are arrayed as accused No.1 and 2 along with others in the complaint pending before the concerned Metropolitan Magistrate. A perusal of the complaint filed under Section 138 r/w Sections 141/142 of NI Act filed by the complainant shows that except for the general allegation stating that the petitioners were responsible for control and management and day to day affairs of the accused company, no specific role has been attributed to the petitioners. To fasten the criminal liability under The Negotiable Instruments Act, 1881, the above generalised averment without any specific details as to how and in what manner, the petitioners were responsible for the control and management of affairs of the company, is not enough. 18. In Pepsi Foods v. Special Judicial Magistrate and Ors. reported as (1998) 5 SCC 749, it was held that summoning an accused person cannot be resorted to as a matter of course and the order must show due application of mind. 19. In view of the facts of the case and the aforementioned enunciation of law, I deem it fit to allow the present petition. The impugned order with respect to summoning the present petitioners for the offence under Section 138 of NI Act, is thus quashed. 20. Copy of this order be communicated to the concerned trial court. 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{"id": "42681804", "text": "IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF JULY 2019 BEFORE THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY R.F.A.No.708 OF 2006 BETWEEN: 1. Ramanna, S/o. late Channapillaiah, Aged about 63 years, Residing at Shettigowdanadoddi Village, Hamlet of Muddapura Karenahalli, Bidadi Hobli, Ramanagaram Taluk, Bengaluru Rural District. 2. Hanumakka, W/o. Sri Ramanna, Aged about 58 years, Residing at the above address with The 1st appellant. ...Appellants (By Sri.R. Narayana, Advocate and Sri H.R. Lakshman Reddy, Advocate) AND: Chaluvaiah, S/o. Doddaiah, Aged about 63 years, Residing at Shettigowdanadoddi Village, RFA.No.708/2006 2 Hamlet of Muddapura Karenahalli, Bidadi Hobli, Ramanagara Taluk, Bengaluru Rural District - 562 109. ...Respondent (By Smt. M.B. Sindhu Shastry, Advocate for Sri N. Subba Shastry, Advocate) **** This Regular First Appeal is filed under Order 41 Rule 1 R/w Section 96 of the Code of Civil Procedure, 1908, against the judgment and decree dated:07.01.2006 passed in O.S.No.195/2002 on the file of the Principal Civil Judge (Sr.Dn), Ramanagaram, partly decreeing the suit for recovery of money. This Regular First Appeal coming on for Hearing this day, the Court delivered the following: JUDGMENT It is the defendants' appeal. The present respondent as a plaintiff had instituted a suit against the present appellants arraigning them as defendants in O.S.No.195/2002, in the Court of the Principal Civil Judge (Senior Division) at Ramanagara, Bengaluru Rural District, (hereinafter for brevity referred to as `trial Court'), for recovery of a sum of `1,96,500/- (Rupees One Lakh Ninety Six Thousand Five Hundred Only), with RFA.No.708/2006 future interest at the rate of 2% per month on a sum of `1,00,000/-. After contest, the said suit came to be decreed by the judgment of the trial Court dated 07.01.2006. It is against the said judgment and decree the defendants have preferred this appeal. 2. The summary of the case of the plaintiff in the Court below is that the defendant No.1 is the husband of defendant No.2. Defendant No.1 borrowed a sum of `1,00,000/- from the plaintiff on 06.11.1998 in the presence of the witnesses for their family necessity and also for education expenses of their daughters. They executed on that day an agreement agreeing to repay the said amount with interest at the rate of 2% per month. The period for repayment of money was for four years and in that regard, the defendants hypothecated the suit property as security. Inspite of several demands and issuance of legal notice, the defendants RFA.No.708/2006 failed to repay the loan amount, as such, the plaintiff was constrained to institute the suit. 3. In response to the summons served upon them, the defendants appeared through their counsel and filed their written statement where they denied all the plaint averments. They denied that they had borrowed a sum of `1,00,000/- from the plaintiff on 06.11.1998 as loan. On the other hand, the defendants contended that their daughters are already married, as such, there was no necessity for them to borrow any amount towards their education expenses. The defendants also denied that they had executed any Hypothecation Agreement in favour of the plaintiff. On the other hand, they have stated that on 04.06.1998 the defendant No.1 had sold 24 guntas of land in Sy.No.67/2, situated in Muddapurakarenahalli Village, Bidadi Hobli, Ramanagaram Taluk, to the plaintiff. Taking undue RFA.No.708/2006 advantage of the said transaction, the plaintiff had fabricated the agreement dated 06.11.1998. They further stated that they are in no way liable to pay any amount to the plaintiff as alleged. 4. Based on the pleadings of the parties, the trial Court framed the following issues: 1. Does the plaintiff prove that the defendants borrowed amount as alleged? 2. Whether the plaintiff is entitled for suit claim? 3. What Order or Decree? The plaintiff got himself examined as PW-1 and got examined Sri Chaluvaiah, Sri K.V. Thimmaiah, Sri K.T. Thimmaiah and Sri B.S.Krishna Murthy in his support as PWs-2, 3 and 4 respectively. He got marked the documents from Exs.P-1 to P-4. Defendant No.1 got himself examined as D.W.1 and certified copy of the RFA.No.708/2006 Sale Deed dated 04.06.1998 was marked as Ex.D-1 from the defendents' side. After hearing for both side, the trial Court by its impugned judgment and decree dated 07.01.2006 answered issue No.1 in the affirmative and issue No.2 partly in the affirmative and partly decreed the suit holding that the defendants shall pay the plaintiff a sum of `1,96,250/- (Rupees One Lakh Ninety Six Thousand Two Hundred Fifty Only) with interest at the rate of 6% per annum on a sum of `.1,00,000/- from the date of the suit till the date of realisation. It is against the said judgment and decree the defendants have preferred this appeal. 5. Lower Court records were called for and the same are placed before this Court. RFA.No.708/2006 6. Heard the arguments of the learned counsel from both side and perused the materials placed before this Court. 7. For the sake of convenience, the parties would be referred to as per their ranks before the trial Court. 8. The learned counsel for the appellants in his argument submitted that Ex.P-1 though is an unregistered document, still, a father cannot alienate or hypothecate minors' property. As such, the Agreement of Hypothecation at Ex.P-1 would not hold good. He further submitted that the plaintiff not taking any action for the alleged non-payment of interest for a period of nearly four years would also go to show the conduct of the plaintiff and creates a doubt in his case. He also stated that the suit is barred by limitation which the trial Court has failed to consider in its proper perspective. RFA.No.708/2006 9. Learned counsel for the respondent/plaintiff in her argument submitted that the defendants though have denied the execution of the Agreement at Ex.P-1, but, the evidence of PW-1 to PW-4, among them, PWs.2 to 4 are the witnesses to the execution of the agreement by the defendants, clearly proves the execution of the Agreement at Ex.P-1 by the defendants. She further submits that the Agreement in Ex.P-1 is an agreement creating charge against the property mentioned therein, however, since it evidences the loan transaction, the said agreement, which is unregistered, can be relied upon for its collateral purpose for proving the loan transaction. In her support, she relied upon several judgments of Hon'ble Apex Court and Coordinate Benches of this Court which would be referred to at the appropriate stage herein afterwards. RFA.No.708/2006 Learned counsel for the respondent/plaintiff further submitted that the limitation attracts in this case is not under Article 19 of the Limitation Act, 1963, but, it is under Article 55 of the same Act. As such, the limitation commences once there is breach of repayment as agreed to under the agreement. 10. In the light of the above, the only point that arise for my consideration is : \" Whether the judgment and decree under appeal requires an interference at the hands of this Court.\" As observed above, the appellants though have prayed for setting aside the impugned judgment and decree, in their arguments, confined only in questioning that the defendants could not have executed Ex.P-1. Further the said document was also a compulsorily registrable document since it creates charge, as such, RFA.No.708/2006 the trial Court ought not to have considered the document. However, the learned counsel for the appellants had made it clear that, he would not dispute on the question of execution of Ex.P-1 by the defendants and would not challenge the finding of the trial Court in that regard. When the evidence of the witnesses on the side of the plaintiff is perused, it go to show that the plaintiff, as PW-1, has reiterated the contentions of his plaint in his examination-in-chief filed in the form of affidavit evidence. He has stated clearly in his examination-in- chief that the schedule property belongs to the defendants and both the defendants jointly for their family necessities and for the education purpose of their children, had availed a loan of `1 lakh from him on 6.11.1998 and it is in that regard, they have executed the document at Ex.P-1, creating a charge against the property. He has got marked the said document at Ex.P-1. RFA.No.708/2006 11. In his cross-examination, interestingly, the defendants have not denied the execution of Ex.P-1 by them. It was only suggested to the witness that on 4.6.1998, the plaintiff had purchased 24 guntas of land in Survey No.67/2 and 27 guntas of land in Survey No.67/1, from defendant No.1, for a sum of `1,27,500/- and out of the said sale consideration, only a sum of `27,500/- was paid. The balance amount of `1 lakh was promised to be paid by the plaintiff to the defendants. Subsequently, the plaintiff took the signatures of the defendants on a blank paper. PW-1 admitted that on 4.6.1998, he purchased the lands, as suggested to him, in Survey No.67/2 and Survey No.67/1, from defendant No.1, for a valuable consideration. However, he denied that he has still remained with payment of a balance of sale consideration of `1 lakh to the defendants with regard to the said transaction and that he had obtained signatures of the defendants in blank paper. Thus, the RFA.No.708/2006 defendants without denying that they have got executed Ex.P-1, have merely suggested that plaintiff had obtained their signatures on blank paper, which the plaintiff has denied. By the said mere suggestion, it cannot be inferred that the defendants have not executed Ex.P-1. Otherwise, they would have specifically suggested to PW-1 that they have not executed Ex.P-1 and have not received the consideration mentioned in the said document. Further, it also cannot be ignored of the fact that Ex.P-1 is a document executed not on any white paper, but, it is on stamp paper, which stamp paper is shown to have purchased on 17.10.1998. Admittedly, even according to the defendants and if their version is believed, they have subscribed their signature on blank paper on 4.6.1998 when they said to have sold some RFA.No.708/2006 portion of the immovable property to the plaintiff. If that were to be the case, the question of the plaintiff getting a stamp paper of a specific date which is more than four months thereafter would not arise. As such, on the very basis of it, the alleged defence of the defendants that the plaintiff has obtained their signature on a blank paper would not sustain. 12. In addition to the above, when the evidence of PWs.2, 3 and 4 is perused, it reveals that PW-2 K.V.Thimmaiah and PW-3-K.T.Thimmaiah, have deposed to the effect that the loan transaction between the plaintiff and defendants had taken place in their presence and execution of the document at Ex.P-1 was also in their presence. Both of them have identified their signatures as witnesses in Ex.P-1. RFA.No.708/2006 In their cross-examination, nothing was elicited from them which makes their evidence in examination- in-chief unbelievable. On the other hand, a mere denial suggestion made to them that no such loan transaction was taken place between the parties has been denied by both the witnesses. 13. PW-4 - B.S.Krishnamurthy, has stated that he had been the scribe of the document at Ex.P-1. He has stated that it was got written through him. Even in his cross-examination also, nothing could be elicited, except suggesting to him that he was not instructed to write the document and that the defendants were not present when the same was written. However, the witness has not admitted the said suggestion as true. 14. The defendant No.1 - Ramanna, who got himself examined as DW-1 has nowhere stated that he has executed the document at Ex.P.1 on 6.11.1998. RFA.No.708/2006 However, he has only stated that on the said day, the defendants did not avail the loan of `1 lakh from the plaintiff. On the contrary, the very same witness in his cross-examination has admitted that Ex.P-1 bears the thumb marks of himself and his wife. 15. Thus, by virtue of evidence of PWs.1, 2, 3 and 4, which could not be shaken in their cross-examination, the plaintiff's evidence as PW-1 is further corroborated and established that, on the date 6.11.1998, both the defendants have jointly executed the document at Ex.P-1 in favour of the plaintiff and have availed a loan of `1 lakh from the plaintiff. The cross-examination of DW-1 also would enable the Court to come to a conclusion that the plaintiff has proved the availment of a loan of a sum of `1 lakh by the defendants on 6.11.1998. RFA.No.708/2006 16. The second question that would remain for consideration is, whether the Ex.P-1 was required to be considered as a basis for proving the alleged loan transaction between the parties. The said document which is on a stamp paper of a sum of `600/- go to show that the defendants jointly after availing a sum of `1 lakh as loan from the plaintiff, have agreed to create a charge on the immovable property shown in the said document. As such, the document is a document with respect to creation of a charge in response to a loan transaction which the executant of the document had availed from the plaintiff. Merely because the defendants have produced a certified copy of the Sale Deed dated 4.6.1998, which is marked at Ex.D-1 and which shows that some portion of the property in Survey No.67/1 and Survey No.67/2 were sold by the defendants in favour of the plaintiff, RFA.No.708/2006 by that itself, the very same defendants executing Ex.P-1 cannot suspected. The said document at Ex.P-1 since creates charge in favour of the plaintiff with respect to an immovable property, is required to be registered under Section 17 of the Registration Act, 1908. Admittedly, the said document is an unregistered document. A perusal of the evidence of PW-1, wherein the said document was marked as an exhibit, goes to show that while marking the said document, an objection was raised, however, subject to the objection for making of the said document, the same was marked. Though the said document was initially referred to in the legal notice dated 18.10.2002, issued by the plaintiff as a Deed of Hypothecation and similarly referred even in the plaint of the plaintiff also, but, a perusal of the said document go to show that nowhere the said document identifies RFA.No.708/2006 itself as a Deed of Hypothecation. On the other hand, the said document calls itself as an document creating charge and acknowledging the receipt of amount and for payment of interest. Therefore, safely the said document may be treated as not an Hypothecation Agreement. The said document since creates a charge, is a registrable document, but, admittedly it is not registered. 17. The learned counsel for the respondent in her argument while canvassing the point that merely because a document which is required to be registered is not registered would not be thrown away and the same can be relied for its collateral purpose, has relied upon some of the judgments of Hon'ble Apex Court High Court of Judicature at Madras and Coordinate Benches of this Court in her support. Those judgments are as below : RFA.No.708/2006 19 In Mattapalli Chelamayya and another -vs- Mattapalli Venkataratnam and another, reported in { (1972) 3 SCC 799}, at Paragraph-11, the Hon'ble Apex Court was pleased to observe as below : \" The direction to pay a sum of money which has been held due and payable by the appellants to the respondents is a direction giving effect to a liability which already existed. It does not create the liability for the first time but merely works out the liability. But the same thing cannot be said about the charge. The charge is created for the first time. The case, therefore, involves two distinct matters - one is a personal liability to pay a certain amount, and the second is an additional relief to recover that amount from the immovable property of the appellants, should they fail to pay as ordered. It is, therefore, clear that the two do not form one transaction, but two severable transactions. As pointed out long ago by Muttusami Ayyar, J., in Sambayya v. Gangayya : \"The test, therefore, is whether the transaction evidenced by the particular RFA.No.708/2006 instrument is single and indivisible or whether it really evidences two transactions which can be severed from each other, the one as creating an independent personal obligation and the other as merely strengthening it by adding a right to proceed against immovable property. But it should be remembered that it is not enough that there is an obligation to pay a sum of money, but that it is also necessary that the obligation should have an independent existence, and be in no way contingent or conditional on the breach of some obligation relating to immovable property created by the same instrument, for the contingency or the condition and the obligation would then be parts of one indivisible transaction\". In the present case the document evidences two transactions which can be severed from each other. One transaction creates an independent personal obligation to pay a certain sum of money and the other transaction namely the charge merely strengthens the first transaction by adding a right to proceed against the charged property. In our opinion, the High Court was right in directing that the second transaction with regard to the charge being a RFA.No.708/2006 severable transaction can be validly ignored and to the extent that it declares the personal obligation to pay the transaction, not being required to be compulsorily registered, the award was admissible in evidence.\" The very same Hon'ble Apex Court subsequently in Yellapu Uma Maheswari and another -vs- Buddha Jagadheeswararao and others, reported in { (2015) 16 SCC 787}, wherein the question of an unregistered and unstamped Partition Deed and Deed of Relinquishment was in question, was pleased to observe that the Deed of Relinquishment of right in respect of immovable property is not admissible in evidence for primary purpose of division of joint properties by metes and bounds, but, the same can be relied upon for collateral purposes of severance of title and nature of possession of various shares only if it is impounded by paying stamp duty together with penalty. RFA.No.708/2006 22 In Umde Bhojram -vs- Wadla Gangadhar, reported in CDJ 2004 APHC 097, a Single Bench of Andhra Pradesh High Court with respect to Section 58 of Transfer of Property Act, 1882, and an unregistered Mortgage Deed, was pleased to observe that, an unregistered simple Mortgage Deed disclosing any covenant undertaking to discharge the liability personally by the mortgagor without reference to the mortgaged property is admissible in evidence to prove the suit debt. It was further observed that, since the suit was for recovery of money covered by the claim, the document can be marked for collateral purposes for the recovery of money. A similar view was also taken by the High Court of Judicature at Madras in T.K.Sathiyanarayanan & others -vs- S.Jaganathan, reported in CDJ 2013 MHC 2298, where the Court held that, unregistered Mortgage Deeds can be marked as exhibits for the limited extent of RFA.No.708/2006 establishing the loan transactions and such marking cannot be found fault with. A Coordinate Bench of this Court in Smt.Krishnakumari -vs- Sri K.Suresh Kumar, reported in ILR 2015 KAR 2335, though held that a possession of immovable property and an agreement is required to be compulsorily registered and the non-registration of such a document would not affect the immovable property comprised therein, however, had considered about relying on such document for collateral purposes. In that regard, it referred to a judgment of Andhra Pradesh High Court in K.Ramamoorthi -vs- C.Surendranatha Reddy, (C.R.P.No.1623/2012, dated 27.07.2012), wherein the Andhra Pradesh High Court has observed as below : \"i) A document, which is compulsorily registrable, but not registered, cannot be received as evidence of any transaction affecting such property or conferring such RFA.No.708/2006 power. The phrase \"affecting the immovable property\" needs to be understood in the light of the provisions of Section 17(b) of the Registration Act, which would mean that any instrument which creates, declares, assigns, limits or extinguishes a right to immovable property, affects the immovable property. ii) The restriction imposed under Section 49 of the Registration Act is confined to the use of the document to affect the immovable property and to use the document as evidence of a transaction affecting the immovable property. iii) If the object in putting the document in evidence does not fall within the two purposes mentioned in (ii) supra, the document cannot be excluded from evidence altogether. iv) A collateral transaction must be independent of or divisible from a transaction to affect the property i.e., a transaction creating any right, title or interest in the immovable property of the value of rupees hundred and upwards.. RFA.No.708/2006 v) The phrase \"collateral purpose\" is with reference to the transaction and not to the relief claimed in the suit. Vii (b) An unregistered mortgage deed requiring registration may be received as evidence to prove the money debt, provided, the mortgage deed contains a personal covenant by the mortgagor to pay.\" From the above judgments, it is clear that even though a document pertaining to creation of charge was marked with respect to an immovable property is required to be a registered document, but, if the said document is unregistered, it cannot be totally ignored and can be considered for any collateral purposes. 18. In the instant case, the creation of charge with respect to the property mentioned in Ex.P-1 though requires the said document to be compulsorily registrable, but, a reading of the said document in its RFA.No.708/2006 entirety, clearly go to show that the defendants, as borrowers of a sum of `1 lakh from the plaintiff, have acknowledged of they borrowing the said sum from the plaintiff and have ensured to repay the said loan amount together with agreed rate of interest thereupon within four years from the date of agreement. It is to ensure the due repayment of the loan amount, a charge was offered to be created with respect to the immovable property shown therein. As such, independent of the creation of the charge, the agreement between the parties as a lender and a borrower stands established and for the said purpose, which is a collateral to the purpose of creation of charge, Ex.P-1 can be relied upon. As such, even though the learned counsel for the appellants did not canvas the said point of alleged unregistered document at Ex.P-1, still, the above analysis would clearly go to show that Ex.P-1 can be relied and acted upon for its collateral purposes. RFA.No.708/2006 19. The first leg of the argument of the learned counsel for the appellants is that, admittedly the property in Ex.P-1 since has given to the share of the minors, the defendants as parents of the minors could not have created a charge against the said property. No doubt, a reading of Ex.P-1 would go to show that the defendants have stated that the property was divided between the children, as such, the property shown in Ex.P-1 has been given up in favour of their minor daughters. It is for the educational expenses of those minor daughters, the defendants, as their natural parents, have executed the document at Ex.P-1. Here once again it can be repeated that, the aspect of whether the defendants executing the document on behalf of the minors would arise, provided the said document is taken for its primary purpose for creating charge against the said property. However, as observed above, RFA.No.708/2006 since the scope of Ex.P-1 for the present suit is confined only for its collateral purpose for repayment of the money, the other question as to whether defendant Nos.1 and 2 could create charge against the property shown therein would not arise for consideration. As such, the said argument of the learned counsel for the appellants is not acceptable. 20. The agreement at Ex.P-1 is admittedly executed on 6.11.1998, which says that the defendants have agreed to repay the loan amount together with interest thereupon at the rate of 2% per month. The period of repayment of the loan amount was fixed at four years from the date of the agreement, which was on 6.11.1998. It is in this context, learned counsel for the appellants canvassed a point in his argument that, had really the defendants executed the said agreement at Ex.P-1, then, the plaintiff would not RFA.No.708/2006 have kept quite for a long period for more than three years without claiming even the interest from the defendants. As such, the conduct of the plaintiff is questionable. Admittedly, the plaintiff has not taken any action against the defendants for the defendants not paying the interest regularly though agreed to under Ex.P-1. But, merely because the plaintiff has not taken any action for recovery of the interest agreed to be paid by the defendants periodically, by that itself, the entire agreement at Ex.P-1 cannot be suspected. This is also for the reason that, as already observed above, apart from PW-1, even PWs.2, 3 and 4 have also supported the case of the plaintiff by stating that PWs.2 and 3 are the witnesses to the said loan transaction and PW-4 was the scribe of the document. RFA.No.708/2006 Moreover, as further observed above, even DW-1 in his cross-examination also has admitted the execution of the document at Ex.P-1 by stating that himself, joined by his wife, have put their thumb marks to the said document. Thus, when the very execution of Ex.P-1 in favour of the plaintiff has stood established, the mere non-payment of the interest would not lead to such a suspicion so as to disregard or disbelieve Ex.P-1 or to exonerate the defendants from liability towards the plaintiff for repayment of the loan amount with interest thereupon. As such, the said point of argument canvassed by the learned counsel for the appellants is also not acceptable. 21. The last point of argument of learned counsel for the appellants is that the plaint is barred by limitation. According to the learned counsel for the appellants, the date of agreement as at Ex.P-1 is RFA.No.708/2006 6.11.1998 and the suit was filed in the trial Court on 11.11.2002, as such, the suit is barred by limitation under Article 19 of the Limitation Act, 1963. No doubt, Article 19 in Schedule-I of the Limitation Act mentions that the institution of a suit for recovery of money payable for the money lent is three years when the loan is made. However, learned counsel for the respondent in her arguments submitted that in the case on hand, admittedly the document at Ex.P-1 gives a period of four years for the repayment of the loan. Since the defendants have committed breach of the agreement by not repaying the loan even at the end of the fourth year from the date of the agreement, the cause of action has arisen to the plaintiff on the said date of breach, as such, the suit has been filed within the period. She further submitted that, it is Article 55 of Schedule-I of the Limitation Act which is applicable in RFA.No.708/2006 the case on hand. The said Article mentions that, in a suit for compensation for the breach of any contract, express or implied, not otherwise specifically provided in the Schedule-I, the limitation period would be three years from the date when the contract is broken or where there are successive breaches when the breach in respect of which the suit instituted occurs or where the breach is continuous from the date when the breach ceases. 22. In that regard, learned counsel for the respondent has relied upon the judgment of Allahabad High Court in Dhapai -vs- Dalla and others, reported in AIR 1970 Allahabad 206. In the said case, the plaintiff had obtained theka of fishery rights in certain tank for complete year. The defendants had agreed to pay half of theka money to the plaintiff in return of half of fishery rights in tank. The plaintiff had filed a suit for recovery RFA.No.708/2006 of amount after defendants working out their theka in respect of their share. The Court held that the suit was for recovery of amount and not for specific performance of contract, as such, it was governed by Article 115 and not Article 113 of the Schedule-I of the Limitation Act. 23. The scope of Article 113 and Article 115 of the Limitation Act was described by the Allahabad High Court at Paras 13 and 14 of the said judgment, which are reproduced here below : \" 13. We now proceed to consider why Art. 115 of the First Schedule to the Limitation Act should apply to the facts of the present case. Art.115 applies when there is a breach of contract and the suit is for compensation for the loss suffered by the innocent party. A breach of contract \"occurs where a party repudiates or fails to perform one or more of the obligations imposed upon him by the contract\": (vide Cheshire and Fifoot, p. 484). \"If one of two parties to a contract breaks the RFA.No.708/2006 obligation which the contract imposes, a new obligation will in every case arise -a right of action conferred upon the party injured by the breach\": (vide Anson's Law of Contract, p. 412). Admittedly in the present case there was a contract and according to the plaintiff and the findings of the Court a breach of contract had occurred inasmuch as the defendants failed to pay the stipulated amount upon the date fixed under the contract. 14. Difficulty can, however, be caused by the word \"compensation\" used in Article 115. It can be argued that the words \"compensation for breach of contract\" point rather to a claim for unliquidated damages than to the payment of a certain sum, and, therefore, where the suit is for the recovery of a specified sum, and not for the determination of unliquidated damages, this Article should not apply. In our opinion this contention would be wholly untenable because it was not accepted by this Court in the Full Bench case of Husain Ali Khan v. Hafiz Ali Khan, (1881) ILR 3 All 600 (FB) and by the Privy Council in the case of Tricomdas Cooverji Bhoja Vs. Sri Gopinath Jiu, AIR 1916 PC 182. RFA.No.708/2006 In the case of Husain Ali Khan, (1881) ILR 3 All 600 (FB), Art. 116 of Schedule II of the Limitation Act (Act 15 of 1877) was the subject of interpretation. Articles 115 and 116 of Schedule II of Act 15 of 1877 have been reproduced verbatim in the Indian Limitation Act, 1908. Article 115 deals with the breach of contracts not in writing and registered while Article 116 provided for breach of contracts in writing and registered. It is, therefore, obvious that the meaning which has to be given to the words \"compensation for breach of contract\" occurring in both the Articles will have to be the same. In Syndicate Bank -vs- Channaveerappa Beleri and others, reported in { (2006) 11 SCC 506}, at Para- 18, the Hon'ble Apex Court was pleased to observe as below : \" 18. Some arguments were addressed about the article of limitation that would apply in respect of a suit against the guarantors. Samuel held that in the case of refusal of a guarantor to pay the amount, the matter would RFA.No.708/2006 be governed by Article 115 of the Schedule to the Limitation Act, 1908, which corresponds to Article 55 of the Limitation Act, 1963. One of the submission made before us was that the term \"compensation for breach of contract\" in Article 55 indicates a claim for unliqudated damages and not a claim for payment of a sum certain as to what is the difference between a claim for unliquidated damages and a claim for a sum certain or a sum presently due, reference can advantageously be made to the classic statement of law by Chagla, C.J., in Iron and Hardware (India) Co. v. Firm Shamlal & Bros. If Article 55 does not apply, then a claim against a guarantor in such a situation may fall under the residuary Article 113 of the Limitation Act, 1963 corresponding to Article 120 of the old Act. The controversy about the appropriate article applicable, when the claim is found to be not exactly for \"compensation\" but ascertained sum due has been referred to as long back as in 1916 in Tricomdas Cooverji Bhoja v. Gopinath Jiu Thakur. Under the old Limitation Act (Act of 1908), the periods prescribed were different under Articles 115 and 116. The period prescribed were also different under Articles RFA.No.708/2006 115 and 120. But under the 1963 Act, the period of limitation is the same (three years) both under Articles 55 and 113. Having regard to the fact that the period of limitation is 3 years both under Article 55 and Article 113, and having regard to the binding decision in Samuel, we do not propose to examine the controversy as to whether the appropriate article is 55 or 113. Suffice it to note that even if the article applicable is Article 113, the Bank's suit is in time. In the light of the above judgment, when Ex.P-1 is perused, it clearly go to show that the defendants had agreed for the four years time for the repayment of the loan amount. Though the loan amount was specified, but, the period for repayment was fixed at four years. As such, the defendants had a time up to four years from the date of the alleged execution of the agreement for repaying the said loan amount and the interest thereupon. Once they commit any breach for payment of the said amount at the end of four years, the plaintiff RFA.No.708/2006 gets a cause of action to sue for recovery of the loan amount from the defendants. As such, the arisal of cause of action for the plaintiff in the case on hand is not necessarily the date of alleged agreement, but also the date when the breach of performance on the part of the defendants has occurred. Since the legal notice at Ex.P-2 go to show that plaintiff after waiting for a considerable period as per the agreement to enable the defendants to repay the loan amount, has finally issued a legal notice to them on 18.10.2002, calling upon the defendants to repay the loan amount and since the defendants have not responded to the said notice and not even repaid the loan amount, the plaintiff gets a cause of action as per Ex.P-1 to treat that the defendants have committed breach of agreement towards the repayment of the loan amount with interest thereupon and has thus instituted a suit without wasting any further time. As such, the contention of the RFA.No.708/2006 appellants that the suit was barred by limitation is also not acceptable. 24. Barring the above, the appellants have not raised any other contention in their memorandum of appeal and in the argument which are worth to be considered. As observed above, since the plaintiff by leading cogent evidence, both oral and documentary, has proved that the defendants have borrowed a sum of `1 lakh from him on 6.11.1998, agreeing to repay the same with agreed rate of interest thereupon and have committed default and have failed to repay the loan amount with interest, the plaintiff is entitled for recovery of the said sum. 25. The trial Court since has passed a considered and reasoned order decreeing the suit in-part after appreciating the materials placed before it in its proper RFA.No.708/2006 perspective, I do not find any reason to interfere in the said judgment and decree. 26. Accordingly, I proceed to pass the following order: ORDER The Appeal is dismissed. The judgment and decree dated 7.1.2006, passed by the learned Prl.Civil Judge (Sr.Dn.), Ramanagaram, in O.S.No.195/2002, is confirmed. The Registry is directed to transmit a copy of this judgment along with lower Court records to the lower Court without delay. 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{"id": "1161164", "text": "Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. OF 2008 (Arising out of S.L.P. (C) No.15727 of 2008) J. Mitra & Co. Pvt. Ltd. ... Appellant (s) versus Asst. Controller of Patents & Desig. & Ors. .... Respondent (s) WITH Civil Appeal No. .........of 2008 arising out of S.L.P. (C) No.15729 of 2008 JUDGMENT S.H. KAPADIA, J. 1. Leave granted. 2. For the sake of convenience we refer to the facts mentioned in Civil Appeal No................ of 2008 (arising out of S.L.P. (C) No.15729 of 2008) filed by J. Mitra & Co. Pvt. Ltd. 3. This matter is a classic illustration of the confusion which has emerged on account of the postponement of in-part commencement of Patents (Amendment) Act, 2005. 4. Quite often the commencement of an Act is postponed to some specified future date or to such date as the Appropriate Government may, by Notification in the Official Gazette, appoint. Provision is also at times made for appointment of different dates for coming into force of different parts of the same Act. This is what has exactly happened in this case resulting into utter confusion with regard to pending FAO No.293/06 filed by respondent No.3 in the High Court under Section 116 of the Indian Patents Act, 1970 as amended by the Patents (Amendment) Act, 1999 w.e.f. 26.3.99. 5. Span Diagnostics Limited, respondent No.3 herein, is a public limited company established in 1972 to indigenously develop and manufacture a comprehensive range of ready- made diagnostic reagents made by clinical pathology laboratories. On 14.6.2000 J.Mitra & Company Pvt. Ltd., appellant herein, filed its application for grant of patent. After scrutiny, the said application stood notified by the Patent Office on 20.11.2004. 6. Thus, proceedings commenced before the Controller of Patents in the year 2000 when the appellant herein sought a patent of their device which was opposed by respondent no.3 in the year 2000. By then, the Patents (Amendment) Act, 1999 had amended the Patents Act, 1970 w.e.f. 26.3.99. Section 25 of the Patents Act, 1970 as amended by Patents (Amendment) Act, 1999 dealt with opposition to a patent vide Section 25. At that time appeals against decisions made by the Controller pertaining to \"pre-grant oppositions\" under Section 25 were maintainable before the High Court under Section 116(2) of the Indian Patents Act, 1970. 7. We quote hereinbelow Sections 25 and 116 as it stood in the year 2000 under the Patents (Amendment) Act, 1999 which read as under: \"Section 25. Opposition to grant of patent: (1) At any time within four months from the date of advertisement of the acceptance of a complete specification under this Act (or within such further period not exceeding one month in the aggregate as the Controller may allow on application made to him in the prescribed manner before the expiry of the four months aforesaid) any person interested may give notice to the Controller of opposition to the grant of the patent on any of the following grounds, namely: a. that the applicant for the patent or the person under or through whom he claims, wrongfully obtained the invention or any part thereof from him or from a person under or through whom he claims; b. that the invention so far as claimed in any claim of the complete specification has been published before the priority date of the claim - i. in any specification filed in pursuance of an application for a patent made in India on or after the 1st day of January, 1912; or ii. in India or elsewhere, in any other document: Provided that the ground specified in Sub-clause (ii) shall not be available where such publication does not constitute an anticipation of the invention by virtue of Sub-section (2) or Sub-section (3) of Section 29; that the invention so far as claimed in any claim of the complete specification is claimed in a claim of a complete specification published on or after the priority date of the applicant's claim and filed in pursuance of an application for a patent in India, being a claim of which the priority date is earlier than that of the applicant's claim; a. that the invention so far as claimed in any claim of the complete specification was publicly known or publicly used in India before the priority date of that claim. Explanation - For the purposes of this clause, an invention relating to a process for which a patent is claimed shall be deemed to have been publicly known or publicly used in India before the priority date of the claim if a product made by that process had already been imported into India before that date except where such importation has been for the purpose of reasonable trial or experiment only; b. that the invention so far as claimed in any claim of the complete specification is obvious and clearly does not involve any inventive step, having regard to the matter published as mentioned in clause (b) or having regard to what was used in India before the priority date of the applicant's claim; c. that the subject of any claim of the complete specification is not an invention within the meaning of this Act, or is not patentable under this Act; d. that the complete specification does not sufficiently and clearly describe the invention or the method by which it is to be performed; e. that the applicant has failed to disclose to the Controller the information required by Section 8 or has furnished the information which in any material particular was false to his knowledge; f. that in the case of a convention application, the application was not made within twelve months from the date of the first application for protection for the invention made in a convention country by the applicant or a person from whom he derives title; but on no other ground. (2) Where any such notice of opposition is duly given, the Controller shall notify the applicant and shall give to the applicant and the opponent an opportunity to be heard before deciding the case. (3) The grant of a patent shall not be refused on the ground stated in Clause (c) of Sub-section (1) if no patent has been granted in pursuance of the application mentioned in that clause; and for the purpose of any inquiry under clause (d) or clause (e) of that sub- section, no account shall be taken of any secret use. Section 116. Appeals (1) No appeal shall lie from any decision, order or correction made of issued under this Act by the Central Government, or from any act or order of the Controller for the purpose of giving effect to any such decision, order or direction. (2) Save as otherwise expressly provided in Sub-section (1), an appeal shall lie to a High Court from any decision, order or direction of the Controller under any of the following provisions, that is to say, Section 15, Section 16, Section17, Section 18, Section 19, Section 20, Section 25, Section 27, Section 28, Section 51, Section 54, Section 57, Section 60, Section 61, Section 63, Sub-section (3) of Section 69, Section 78, Section 84, Section 86, Section 88(3), Section 89, Section 93, Section 96 and Section 97.\" (3) Every appeal under this section shall be in writing and shall be made within three months from the date of the decision, order or direction, as the case may be, of the Controller, or within such further time as the High Court may in accordance with the rules made by it under Section 158 allow.\" (emphasis supplied by us) 8. Suffice it to note that under Patents (Amendment) Act, 1999 there was only one right given to a person interested to oppose the grant of patent by filing objections at the pre-grant stage. Under the said Amendment Act, 1999, as stated above, vide Section 116 (2) a right of appeal was available to the aggrieved party against orders passed under Section 25. The said appellate remedy was available by way of an appeal to the High Court. 9. In 2002, the Legislature desired an amendment to the law and intended to create an appellate forum to hear appeals against orders passed by the Controller consequently Patents (Amendment) Act, 2002 was promulgated on 25.6.2002. However, it was not brought into force immediately. It may be noted that in the said Amendment Act, 2002, no provision was made pertaining to \"post-grant opposition\". That provision came to be made only under the Patents (Amendment) Act, 2005 which was promulgated on 4.4.2005 w.e.f. 1.1.2005. 10. Vide Section 47 of the Patents (Amendment) Act, 2002 entire Chapter XIX stood substituted. Sections 116 and 117A were reworded which read as under: \"Section 116. (1) Subject to the provisions of this Act, the Appellate Board established under Section 83 of the Trade Marks Act, 1999 shall be the Appellate Board for the purposes of this Act and the said Appellate Board shall exercise the jurisdiction, power and authority conferred on it by or under this Act: Provided that the Technical Member of the Appellate Board for the purposes of this Act shall have the qualifications specified in Sub- section (2). (2) A person shall not be qualified for appointment as a Technical Member for the purposes of this Act unless he- (a) has, at least five years, hold the post of Controller under this Act or has exercised the functions of the Controller under this Act for at least five years; or (b) has, for at least ten years, functioned as a Registered Patent Agent and possesses a degree in engineering or technology or a masters degree in science from any University established under law for the time being in force or equivalent; or (c) has, for at least ten years, been an advocate of a proven specialized experience in practicing law relating to patents and designs. Section 117A. (1) Save as otherwise expressly provided in Sub- section (2), no appeal shall lie from any decision, order or direction made or issued under this Act by the Central Government, or from any act or order of the Controller for the purpose of giving effect to any such decision, order or direction. (2) An appeal shall lie to the Appellate Board from any decision, order or direction of the Controller or Central Government under Section 15, Section 16, Section 17, Section 18, Section 19, Section 20, Section 25, Section 27, Section 28, Section 51, Section 54, Section 57, Section 60, Section 61, Section 63, Section 66, Sub- section (3) of Section 69, Section 78, Sub-sections (1) to (5) of Section 84, Section 85, Section 88, Section 91, Section 92 and Section 94. (3) Every appeal under this section shall be in prescribed form and shall be verified in such manner as may be prescribed and shall be accompanied by a copy of the decision, order or direction appealed against any by such fees as may be prescribed. (4) Every appeal shall be made within three months from the date of the decision, order or direction, as the case may be, of the Controller or the Central Government or within such further time as the Appellate Board may, in accordance with the rules made by it, allow.\" (emphasis supplied by us) 11. The provisions of the said Amendment Act, 2002, however, were not simultaneously brought into force. Suffice it to note that Sections 116 and 117A were not brought into force. However, Section 25 was brought into force vide Notification dated 20.5.2003. Even as on 20.5.2003 vide Section 25 only one right to oppose a patent at the pre-grant stage was available and appeal against an order, passed by the earlier, lay before the High Court under the then existing Section 116 of the Patents Act, 1970 for the reason that the amended Sections 116 and 117A were not brought into force. 12. Without giving effect to the amendments to Sections 116 and 117A suggested by Section 47 of the Patents (Amendment) Act, 2002, on 4.4.2005 the Legislature enacted the Patents (Amendment) Act, 2005. Even here, not all provisions were simultaneously brought into force. Only certain sections of the Patents (Amendment) Act, 2005 were brought into force. 13. Vide Section 23 of the Patents (Amendment) Act, 2005, the then existing Section 25 was substituted. The substituted Section 25 reads as under: \"25. Opposition to the patent.- (1) Where an application for a patent has been published but a patent has not been granted, any person may, in writing, represent by way of opposition to the Controller against the grant of patent on the ground- (a) that the applicant for the patent or the person under or through whom he claims, wrongfully obtained the invention or any part thereof from him or from a person under or through whom he claims; (b) that the invention so far as claimed in any claim of the complete specification has been published before the priority date of the claim- (i) in any specification filed in pursuance of an application for a patent made in India on or after the 1st day of January, 1912; or (ii) in India or elsewhere, in any other document: Provided that the ground specified in Sub-clause (ii) shall not be available where such publication does not constitute an anticipation of the invention by virtue of Sub-section (2) or Sub-section (3) of Section 29; (c) that the invention so far as claimed in any claim of the complete specification is claimed in a claim of a complete specification published on or after the priority date of the applicant's claim and filed in pursuance of an application for a patent in India, being a claim of which the priority date is earlier than that of the applicant's claim; (d) that the invention so far as claimed in any claim of the complete specification was publicly known or publicly used in India before the priority date of that claim. Explanation.-For the purposes of this clause, an invention relating to a process for which a patent is claimed shall be deemed to have been publicly known or publicly used in India before the priority date of the claim if a product made by that process had already been imported into India before that date except where such importation has been for the purpose of reasonable trial or experiment only; (e) that the invention so far as claimed in any claim of the complete specification is obvious and clearly does not involve any inventive step, having regard to the matter published as mentioned in clause (b) or having regard to what was used in India before the priority date of the applicant's claim; (f) that the subject of any claim of the complete specification is not an invention within the meaning of this Act, or is not patentable under this Act; (g) that the complete specification does not sufficiently and clearly describe the invention or the method by which it is to be performed; (h) that the applicant has failed to disclose to the Controller the information required by Section 8 or has furnished the information which in any material particular was false to his knowledge; (i) that in the case of convention application, the application was not made within twelve months from the date of the first application for protection for the invention made in a convention country by the applicant or a person from whom he derives title; (j) that the complete specification does not disclose or wrongly mentions the source or geographical origin of biological material used for the invention; (k) that the invention so far as claimed in any claim of the complete specification is anticipated having regard to the knowledge, oral or otherwise, available within any local or indigenous community in India or elsewhere, but on no other ground and the Controller shall, if requested by such person for being heard, hear him and dispose of such representation in such manner and within such period as may be prescribed. (2) At any time after the grant of patent but before the expiry of a period of one year from the date of publication of grant of a patent, any person interested may give notice of opposition to the Controller in the prescribed manner on any of the following grounds, namely: (a) that the patentee or the person under or through whom he claims, wrongfully obtained the invention or any part thereof from him or from a person under or through whom he claims; (b) that the invention so far as claimed in any claim of the complete specification has been published before the priority date of the claim- (i) in any specification filed in pursuance of an application for a patent made in India on or after the 1st day of January, 1912; or (ii) in India or elsewhere, in any other document: Provided that the ground specified in Sub-clause (ii) shall not be available where such publication does not constitute an anticipation of the invention by virtue of Sub-section (2) or Sub-section (3) of Section 29; (c) that the invention so far as claimed in any claim of the complete specification is claimed in a claim of a complete specification published on or after the priority date of the claim of the patentee and filed in pursuance of an application for a patent in India, being a claim of which the priority date is earlier than that of the claim of the patentee; (d) that the invention so far as claimed in any claim of the complete specification was publicly known or publicly used in India before the priority date of that claim. Explanation.-For the purposes of this clause, an invention relating to a process for which a patent is granted shall be deemed to have been publicly known or publicly used in India before the priority date of the claim if a product made by that process had already been imported into India before that date except where such importation has been for the purpose of reasonable trial or experiment only; (e) that the invention so far as claimed in any claim of the complete specification is obvious and clearly does not involve any inventive step, having regard to the matter published as mentioned in clause (b) or having regard to what was used in India before the priority date of the claim; (f) that the subject of any claim of the complete specification is not an invention within the meaning of this Act, or is not patentable under this Act; (g) that the complete specification does not sufficiently and clearly describe the invention or the method by which it is to be performed; (h) that the patentee has failed to disclose to the Controller the information required by Section 8 or has furnished the information which in any material particular was false to his knowledge; (i) that in the case of a patent granted on convention application, the application for patent was not made within twelve months from the date of the first application for protection for the invention made in a convention country or in India by the patentee or a person from whom he derives title; (j) that the complete specification does not disclose or wrongly mentions the source and geographical origin of biological material used for the invention; (k) that the invention so far as claimed in any claim of the complete specification was anticipated having regard to the knowledge, oral or otherwise, available within any local or indigenous community in India or elsewhere, but on no other ground. (3) (a) Where any such notice of opposition is duly given under Sub-section (2), the Controller shall notify the patentee. (b) On receipt of such notice of opposition, the Controller shall, by order in writing, constitute a Board to be known as the Opposition Board consisting of such officers as he may determine and refer such notice of opposition along with the documents to that Board for examination and submission of its recommendations to the Controller. (c) Every Opposition Board constituted under clause (b) shall conduct the examination in accordance with such procedure as may be prescribed. (4) On receipt of the recommendation of the Opposition Board and after giving the patentee and the opponent an opportunity of being heard, the Controller shall order either to maintain or to amend or to revoke the patent. (5) While passing an order under Sub-section (4) in respect of the ground mentioned in clause (d) or clause (e) of Sub-section (2), the Controller shall not take into account any personal document or secret trial or secret use. (6) In case the Controller issues an order under Sub-section (4) that the patent shall be maintained subject to amendment of the specification or any other document, the patent shall stand amended accordingly.\" (emphasis supplied by us) 14. We also quote Section 61 of the Patents (Amendment) Act, 2005 which reads as under: \"Section 61. In Section 117A of the principal Act [as inserted by Section 47 of the Patents (Amendment) Act, 2002, in Sub-section (2), for the words and figures \"section 20, Section 25, Section 27, Section 28,\", the words, figures and brackets \"section 20, Sub- section (4) of Section 25, Section 28\" shall be substituted.\"* *(this section was not brought into force till 2.4.2007)\" (emphasis supplied by us) 15. In short, by the Patents (Amendment) Act, 2005, for the first time a dichotomy was introduced in the Patent Law between \"opposition to the pre-grant\" and \"opposition to the post-grant of patent\". This was the major structural change in the Patent Law. Similarly, under the Patents (Amendment) Act, 2005, appeal was restricted to the post-grant opposition orders and that appeal lay before the Appellate Board and not to the High Court. Here also, Section 25 of the Patents Act, 1970 as amended by Patents (Amendment) Act, 2005 (which refers to \"pre-grant opposition\" and \"post-grant opposition\") was brought into force on and from 1.1.2005 whereas amended Section 117A by which appeal was provided for against post-grant opposition order was not brought into force till 2.4.2007. One more aspect needs to be mentioned. As stated, vide Patents (Amendment) Act, 2005, a dichotomy was brought in between pre-grant and post-grant opposition orders w.e.f. 1.1.2005. But when it came to filing of first appeal for some unknown reasons, the amended Section 117A (which provided for only one statutory appeal and that too against post-grant orders passed by the Controller) was not brought into force. The result is that although the Legislature intended to provide for only one statutory appeal to the Appellate Board, by reason of Section 61 of the Patents (Amendment) Act, 2005 not being brought into force till 2.4.07 a strange situation developed. The Legislature intended to provide for only one statutory appeal to the Appellate Board but by not bringing Section 61 into force till 2.4.07, appeals filed during the interregnum, as in this case, became vulnerable and liable to be dismissed as misconceived as is contended by the appellant. This is the controversy which needs to be resolved in this case. 16. On 19.10.2006 when FAO No.293/06 was filed in the High Court, Chapter XIX of the parent Act as amended vide Patents (Amendment) Act, 1999 continued to be in operation notwithstanding the enactment of the Patents (Amendment) Act, 2002 and the Patents (Amendment) Act, 2005 as the amended Sections 116 and 117A were brought into force only vide Notification dated 2.4.07. One more point needs to be noted. Section 117G of the principal Act was substituted vide Patents (Amendment) Act, 2005. It reads as under: \"Section 117G. Transfer of pending proceedings to Appellate Board.- All cases of appeals against any order or decision of the Controller and all cases pertaining to revocation of patent other than on a counter-claim in a suit for infringement and rectification of register pending before any High Court, shall be transferred to the Appellate Board from such date as may be notified by the Central Government in the Official Gazette and the Appellate Board may proceed with the matter either de novo or from the stage it was so transferred.\" 17. On reading amended Section 117G it becomes clear that all appeals against any order or decision of the Controller had to be transferred to the Appellate Board from such date as may be notified by the Central Government in the Official Gazette. This amended Section 117G was also brought into force vide Notification dated 3.4.2007. Under Notes on Clauses attached to the Statement of Objects and Reasons, it has been clarified, vide clause 62, that amended Section 117G is consequential to the enforcement of the jurisdiction of the Appellate Board under Section 64 which results to revocation of patent. Vide clause 47 of Notes on Clauses attached to the Statement of Objects and Reasons, it has been clarified that Section 64 is also amended vide Patents (Amendment) Act, 2005 to confer wider jurisdiction on the Appellate Board in matters of revocation of patent, therefore, amended Section 117G which is brought into force only from 3.4.2007 dealt with transfer of pending proceedings from the High Court to the Appellate Board. 18. The question which arises for determination in this batch of civil appeals is : whether FAO No.292/06 and FAO No.293/06 filed by respondent no.3 herein in the High Court were liable to be dismissed. According to the appellant, with the change in Section 25 brought about by Patents (Amendment) Act, 2005, a dichotomy was introduced in the Patents Act, 1970. According to the appellant, that dichotomy was between \"pre-grant opposition\" and \"post-grant opposition\". According to the appellant, this was a structural change in the principal Act. According to the appellant, on 23.8.06 the Controller rejected its \"pre-grant opposition\" and on that day \"post-grant opposition\" avenue was open to respondent no.3 vide Section 25(2). According to the appellant, under the amended Section 25 on rejection of \"pre- grant opposition\" it was open to respondent no.3 to move an application opposing grant of patent under Section 25(2). The patent was granted to the appellant on 22.9.06. According to the appellant, it was open to respondent no.3 to challenge the grant of patent by making \"post-grant opposition\" under Section 25(2) from which an appeal was maintainable to the Appellate Board. This was not done. Further, according to the appellant, \"pre-grant opposition\" was filed by respondent no.3 under Section 25(1) on 21.3.05. According to the appellant, though the Patents (Amendment) Act, 2005, amended Section 25 by enacting the amendment on 4.4.05 the said amendment was brought into force w.e.f. 1.1.2005 and, therefore, it was open to respondent no.3 to challenge the grant of patent by invoking Section 25(2) of the Patents Act, 1970. According to the appellant, with the change in the structure of the Act providing for only one statutory appeal and that too only against the order granting patent under Section 25(4), the appeal filed by respondent no.3 against pre- grant opposition order was not maintainable on 19.10.06 by which time, as stated above, Section 25 stood restructured providing for a dichotomy between \"pre-grant opposition\" and \"post-grant opposition\". 19. On the other hand, on behalf of respondent no.3, it has been urged that on 19.10.06 it had filed an appeal in the High Court under unamended Section 116 of the parent Act; that, even though Section 25 stood restructured w.e.f. 1.1.05 on account of absence of notification bringing the amended law into force, Sections 116 and 117A (as amended) providing appeal to the Appellate Board came into force only with effect from 2.4.07 and, therefore, according to the said respondent, its first appeal being FAO No.293/06 continued to be governed by the law as it stood on 19.10.06 (on which date appeal to the High Court was maintainable); that, on 23.8.06 the \"pre- grant opposition\", filed by respondent no.3, stood rejected, however, on that date appeal against pre-grant opposition order was maintainable, under Section 116, to the High Court and, therefore, there is no merit in the argument advanced on behalf of the appellant that the first appeal filed by respondent no.3 was misconceived; that, it is true that Section 25 got restructured w.e.f. 1.1.2005, however, such restructuring did not obliterate the first appeal filed by respondent no.3 on 19.10.2006; and lastly it was argued on behalf respondent no.3 that the appellant had filed its application for grant of patent on 14.6.2000, it was notified on 20.11.04, however, respondent no.3 had filed its \"pre-grant opposition\" under Section 25(1) on 21.3.05 when the Patents (Amendment) Act, 2005 was not promulgated (it was promulgated on 4.4.05) and, therefore, according to respondent no.3 its \"pre-grant opposition\" filed on 21.3.05 was valid and proper as respondent no.3 could not have invoked Section 25(2) proceedings on that day, namely, 21.3.05 as the law stood enacted bringing in Section 25(2) only on 4.4.05. In the peculiar circumstances of this case it was urged on behalf of respondent no.3 that no interference is called for by this Court in this batch of civil appeals. 20. As stated above, quite often the commencement of an Act is postponed to some specific future date or to such date as the Appropriate Government may, by notification in the Official Gazette, appoint. At times provision is made for appointment of different dates for coming into force of different parts of the same Act. 21. An Act cannot be said to commence or to be in force unless it is brought into operation by legislative enactment or by the exercise of authority by a delegate empowered to bring it into operation. 22. Applying the above tests to the present case, we find that by Patents (Amendment) Act, 2005 for the first time a dichotomy was inserted in the Patent Law by providing vide Section 25(1) for \"opposition to pre-grant\" and vide Section 25 (2) for \"opposition to post-grant\" of patent. By reason of Patents (Amendment) Act, 2005, the kind of opposition available under the said 1970 Act is different from what existed earlier. Previously, there was no \"post-grant opposition\". Previously, the only provision of challenge by an interested party was a \"pre-grant\" challenge under Section 25 (1) as it then stood. Therefore, the Courts had evolved the `rule of caution' as the patent had not faced any challenge at the hands of interested parties. There is, however, a radical shift due to incorporation of Section 25(2) where an interested party is granted the right to challenge the patent after its grant. The ground of challenge under Section 25(1) is identical to Section 25(2) of the said 1970 Act. However, Section 25(1) is wider than Section 25(2) as the latter is available only to a \"person aggrieved\". The main difference between Section 25(1) and Section 25(2), as brought about by Patents (Amendment) Act, 2005, is that even after a patent is granted, \"post-grant opposition\" can be filed under Section 25 (2) for a period of one year. The reason is obvious. In relation to patents that are of recent origin, a higher scrutiny is necessary. This is the main rationale underlying Section 25(2) of the said 1970 Act. Therefore, the Legislature intended an appeal under Section 117A(2) to the Appellate Board from any decision, order or direction of the Controller, inter alia, under Section 25(4) [which refers to the power of the Controller to maintain, amend or revoke the patent]. 23. In the present case, the Legislature intended to provide for two types of scrutiny followed by one statutory appeal to the Appellate Board against \"post-grant proceedings\". The Legislature intended to have a dichotomy between \"pre-grant opposition\" and \"post-grant opposition\". However, the Legislature intended that there shall be only one statutory appeal against grant of patent. The Legislature intended to obliterate appeal from \"pre-grant proceedings\", which existed earlier. However, it was left to the Executive to bring the enacted law into force vide notification. For some unknown reasons, the amended Sections 116 and 117A(2) were not brought into force till 2.4.07 whereas the concept of \"pre- grant\" and \"post-grant\" oppositions were brought into force w.e.f.1.1.2005. This is where the legislative intent got defeated during the interregnum. It is during this interregnum that respondent no.3 filed its FAO No.293/06 in the High Court under Section 116, as it stood on 19.10.06 under the Patents (Amendment) Act, 1999. On that date, the amended Section 117A, suggested by Patents (Amendment) Act, 2005, was not brought into force. On 19.10.06 the old law prevailed under which an appeal lay before the High Court. Respondent no.3, in both the cases, preferred first appeals to the High Court under Section 116 as it then stood. They are FAO No.292/06 and FAO No.293/06. We have to decide the fate of these pending appeals. One more aspect needs to be mentioned. Under the Patents (Amendment) Act, 2005, appeal is provided to the Appellate Board against the order of the Controller under Section 25(4). However, that statutory appeal is maintainable only in \"post-grant opposition\" proceedings whereas respondent no.3 herein has instituted first appeals under the law then prevailing, challenging the Order rejecting \"pre-grant opposition\" dated 23.8.06. 24. Taking into account the complexities involved in this case, on account of a hiatus created by reason of the law not being brought into force in time, we are of the view that the first appeals, filed by respondent no.3 in the High Court being FAO No.292/06 and FAO No.293/06, would remain in the High Court. The said appeals would be heard and disposed of by the High Court in accordance with law under Section 116 of the said 1970 Act as it stood on 19.10.06. The High Court will hear and decide the validity of the Order passed by the Controller dated 23.8.06 rejecting \"pre-grant opposition\" filed by respondent no.3. We are informed that there are hardly one or two matters of this nature which are pending. Therefore, we are of the view that respondent no.3 cannot be let without remedy. In the special circumstances of this case, particularly when after 2.4.07 appeals against orders rejecting \"pre-grant opposition\" are not maintainable and particularly when FAO No.292/06 and FAO No.293/06 were filed by respondent no.3 prior to 2.4.07 under the old law, we are of the view that these two appeals shall be heard and decided by the High Court in accordance with law. The Appellate Board after 2.4.07 is entitled to hear appeals only arising from orders passed by the Controller under Section 25(4), i.e., in cases of orders passed in \"post-grant opposition\". Therefore, there is no point in transferring the pending FAO No.292/06 and FAO No.293/06 to the Appellate Board which has no authority to decide matters concerning \"pre-grant opposition\". Moreover, it may be noted that even Section 117G, which refers to transfer of pending proceedings to the Appellate Board, is also brought into force vide Notification dated 3.4.07. Keeping in mind the peculiar nature of the problem in hand, we are of the view that ends of justice would be subserved if the High Court is directed to hear and decide the appeals bearing FAO No.292/06 and FAO No.293/06 in accordance with law as it then stood, i.e., under Section 116 under Patents (Amendment) Act, 1999 against Orders passed by the Controller in \"pre-grant opposition\" proceedings. 25. Accordingly, the two Civil Appeals, filed by the appellant herein, stand disposed of with no order as to costs. .................................J. (S.H. Kapadia) .................................J. (B. 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{"id": "95311661", "text": "REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION IN TRANSFER PETITION (CRL.) NO. 262 of 2018 SWAATI NIRKHI & ORS. \u2026PETITIONERS Versus STATE (NCT OF DELHI) & ORS. \u2026RESPONDENTS J U D G M E N T INDU MALHOTRA, J. 1. The present Transfer Petition has been filed by the Petitioner under Section 406 Cr.P.C. seeking transfer of Criminal Case No. 3483 of 2017 titled as State v. Swaati Nirkhi & Ors. (arising out of FIR No. 39/2016) from the Court of Metropolitan Magistrate 461 North West, Rohini Courts, New Delhi to the Court Signature Not Verified Digitally signed by of Metropolitan Magistrate at Allahabad (Prayagraj), Uttar Nidhi Ahuja Date: 2021.03.09 15:38:23 IST Reason: Pradesh. 2. The Respondent No.4 herein/Complainant filed FIR No. 39 on 7.1.2016 before the Police Station, Mangol Puri under Section 389 read with 34 IPC against 4 accused viz. Mr. Mohan Shrivastava, Ms. Swaati Saxena, Sanjay Saxena, Shashank Saxena wherein it was stated that his nephew Ashish Khare was married to Ms. Swaati Nirkhi (Petitioner No.1 in the Transfer Petition) on 19th April 2015 in Delhi. That on 7.8.2015, Swaati Nirkhi left for her parental home in Allahabad, and did not return thereafter, even though she was requested to come back by the family. On 25.11.2015, the Complainant received a message from one Mohan Srivastava alias Akahauri Onkar Nath (Respondent No.2 in the T.P) that Ms. Swaati Nirkhi would not like to come back to Delhi, and the matter could be settled by paying Rs. 5 crores. On 25.11.2015, 3 persons visited the house of the Complainant, and left a message with his driver and domestic help that the Complainant must pay Rs. 5 Crore to Mohan Srivastava. On 6.12.2015, the Complainant stated that it was learnt from the newspaper reports and T.V. media report that Ms. Swaati Nirkhi had falsely alleged that she was gang raped on 4.11.2015 at 9 p.m. in the house of the Respondent No.4, by Respondent No.4 and his nephews- Abhishek and Ashish, with the assistance of his wife- Smt. Heema Khare. It was also stated that he had received messages to pay Rs. 5 Crore otherwise he would be arrested on the ground of gang rape. On 7.1.2016, at 11.13 a.m. he received a call from a person who identified himself as Mohan Srivastava to pay payment of Rs. 5 crore urgently. The 1st instalment could be paid to Swaati Nirkhi, Shashank Saxena and Sanjay Saxena at Delhi in 2 days of Rs. 2.5 Crore. The Complainant has submitted that he was warned not to get in touch with the police, otherwise he would be required to face dire consequences. The complainant stated that he had kept the SHO informed of the subject matter since 10.12.2015 through his Complaints. He stated that his driver Sushil Kumar had informed him of the plan of Mohan Srivastava, Swaati Nirkhi, Sanjay Saxena and Shashank Saxena to get the entire family arrested, and then occupy his property worth 10 to 15 crore. It was further alleged that the Accused had sought to allure the driver of Respondent No.4 by offering a flat to him. It was requested that a criminal case be registered against Mr. Mohan Srivastava, Ms. Swaati Nirkhi, Mr. Sanjay Saxena and Shashank Saxena. 3. Pursuant to the registration of the FIR, a Charge Sheet was filed on 29.6.2017 in the Court of Metropolitan Magistrate, Rohini Court, Delhi against Accused No.1- Swaati Nirkhi, Accused No.2- Sanjay Saxena, Accused No.3- Shashank Saxena, Accused No.4- Mohan Srivastava @Akahauri Onkar Nath, and Accused No.5- Jugal Kishore Yadav under Section 389,419,506,120B and 34 IPC. A list of 23 witnesses was mentioned in the Charge Sheet, out of which 16 were official witnesses, and 7 were non- official witnesses. 4. On 28.11.2017, the Metropolitan Magistrate, 461, Rohini Court, Delhi took cognisance, and issued summons to the Accused persons. 5. In the meanwhile, the Accused Ms. Swaati Nirkhi, Mr. Sanjay Saxena and Shashank Saxena filed the present Transfer Petition (Crl.) No.262 of 2018 before this Court, praying that the trial of Criminal No. 3483 of 2017 titled as State v. Swaati Nirkhi and Ors. arising out of FIR No. 39/2016 pending before the Court of the Metropolitan Magistrate, North West, Rohini Courts, New Delhi be transferred to the Ld. Metropolitan Magistrate at Allahabad (Prayagraj) U.P. 6. This Court vide ex-parte Order dated 18.5.2018 allowed the Transfer Petition and directed that the criminal proceedings in the afore-mentioned case shall stand transferred to the Court of Metropolitan Magistrate at Allahabad, U.P from the Court of Metropolitan Magistrate, 461, Rohini Court, Delhi. Since the Order was being passed ex-parte, it was left open to the Respondents to approach this Court, if they were aggrieved by the same. 7. The Complainant in the FIR i.e. Respondent No.4 in the Transfer Petition filed M.A. No. 1589 of 2018 praying for recall of the Order dated. 18.5.2018 passed by this Court in T.P. No (Crl.) 262 of 2018. The said M.A was dismissed vide Order dated. 5.6.2018. 8. The Respondent No.4 then filed Review Petition (Crl.) No. 671 of 2018 praying for Review of the Orders dated 18.5.2018 and 5.6.2018 passed by this Court. This Court issued Notice in the Review Petition vide Order dated 24.10.2018, and ordered hearing in open Court. 9. After hearing the parties at length, this Court vide detailed Judgment dated 28.1.2021 allowed the Review Petition, and recalled the Order dated 18.5.2018. It was directed that the Review Petitioner/ Complainant be impleaded as Respondent No.4 in the Transfer Petition. The Transfer Petition was then taken up for de novo hearing. 10. We have heard the Counsel for the parties at length, and perused the affidavits filed. The Petitioners have inter alia submitted that the Transfer Petition ought to be allowed since there are 9 cases pending between the parties in Allahabad, out of which 6 cases have been filed by the Respondent No.4, and 3 cases have been filed by the Petitioner No.1. Since the Respondent No.4 was prosecuting the 6 cases filed by him in Allahabad, and that no inconvenience would be caused if the proceedings arising out of the FIR in the present case, were tried by the Court of the Metropolitan Magistrate at Allahabad. It was further submitted that if the Petitioners were compelled to defend themselves in the proceedings at Delhi, it would be financially burdensome on them. However, while the Complainant and his family members who are a well to do family, would not be subject to any hardship or inconvenience. It was further submitted that the Petitioner No.1, due to the physical and mental assault and harassment suffered by her, was not able to work and earn her livelihood. Furthermore, her father i.e. Petitioner No.2 is a senior citizen suffering from various ailments and diseases. In these circumstances it was pleaded that the proceedings in the criminal case may not be transferred back from Allahabad to Delhi. 11. Respondent No.2 who has been named as co-accused in the FIR, has supported the case of the Petitioners. It has been submitted that he is discharging a public function as Deputy Mayor in Gaya, Bihar. It would be inconvenient for him to undertake such a long journey from Gaya to Delhi, as it would impinge on his time to discharge his public functions. 12. Respondent No.3 has submitted that he was not named in the FIR, but was added in the Charge Sheet as an accused on the basis of hearsay evidence. The prosecution of the case in Allahabad would be convenient for him to defend the baseless allegations made by Respondent No.4 against him. 13. The Transfer Petition was seriously opposed by Respondent No.4 on the ground that the allegations mentioned in the present FIR related to incidents which had occurred in New Delhi. Since no cause of action had taken place in Allahabad, the proceedings must be tried by the Court of competent jurisdiction in New Delhi. It was further submitted that out of the 23 witnesses, 12 official witnesses are situated in New Delhi. If the case is transferred out of Delhi, it would impinge upon their official work, since they would be required to travel to Allahabad in these proceedings. With respect to the cases filed by the present Petitioner in Allahabad, no incriminating material has been found against the Respondent No.4 in the FIRs instituted in State of U.P., even after being investigated several times by the Allahabad Police, Crime Branch Allahabad, and DSP Level Gazetted Lady Police Officer. It was further submitted that the Petitioner No.1 herself had instituted 13 cases in Courts in Delhi, Allahabad and before this Court, which she has prosecuted without expressing any difficulty, and there is no reason why an exception should be made in the present case. It was further submitted that the Petitioners in the T.P have not appeared before the Metropolitan Magistrate, Allahabad in 36 hearings from 9.7.2018 to 7.12.2020, even after the case was transferred to Allahabad (Prayagraj). The Transfer Petition was only a ruse to stall the proceedings in the present case. 14. In a criminal case, the place of inquiry and trial has to be by the Court within whose local jurisdiction, the crime was allegedly committed as provided by Section 177 of Cr.P.C. \u201c177. Ordinary place of inquiry and trial. Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed.\u201d 15. The cause of action as per the averments in the FIR are alleged to have arisen in New Delhi, where the matrimonial home of the Petitioner is situated. This court has consistently held that a criminal case ought to be inquired and tried ordinarily where the cause of action has accrued1. Ramesh v. State of T.N., (2005) 3 SCC 507, Manish Ratan v. State of M.P (2007) 1 SCC 262 Bhura Ram v. State of Rajasthan, (2008) 11 SCC 103 Rajiv Modi v. Sanjay Jain, (2009) 13 SCC 241 Sunita Kumari Kashyap v. State of Bihar, (2011) 11 SCC 301 Amarendu Jyoti vs. State of Chattisgarh (2014) 12 SCC 362 Babita Lila and Ors. vs. Union of India (UOI) (2016) 9 SCC 647 Rupali Devi vs. State of Uttar Pradesh and Ors. (2019) 5 SCC 384 Rhea Chakraborty vs. State of Bihar and Ors. 2020 SCC OnLine SC 654 In Abraham Ajith v. Inspector of Police2, this Court held that : \u201c12. The crucial question is whether any part of the cause of action arose within the jurisdiction of the court concerned. In terms of Section 177 of the Code, it is the place where the offence was committed. In essence it is the cause of action for initiation of the proceedings against the accused. 13. While in civil cases, normally the expression \u201ccause of action\u201d is used, in criminal cases as stated in Section 177 of the Code, reference is to the local jurisdiction where the offence is committed. These variations in etymological expression do not really make the position different. The expression \u201ccause of action\u201d is, therefore, not a stranger to criminal cases. 14. It is settled law that cause of action consists of a bundle of facts, which give cause to enforce the legal inquiry for redress in a court of law. In other words, it is a bundle of facts, which taken with the law applicable to them, gives the allegedly affected party a right to claim relief against the opponent. It must include some act done by the latter since in the absence of such an act no cause of action would possibly accrue or would arise. 15. The expression \u201ccause of action\u201d has acquired a judicially settled meaning. In the restricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the proceeding including not only the alleged infraction, but also the infraction coupled with the right itself. Compendiously, the expression means every fact, which it would be necessary for the complainant to prove, if traversed, in order to support his right or grievance to the judgment of the court. Every fact, which is necessary to be proved, as distinguished from every piece of evidence, which is necessary to prove such fact, comprises in \u201ccause of action\u201d. (2004) 8 SCC 100 16. The expression \u201ccause of action\u201d has sometimes been employed to convey the restricted idea of facts or circumstances which constitute either the infringement or the basis of a right and no more. In a wider and more comprehensive sense, it has been used to denote the whole bundle of material facts. 17. The expression \u201ccause of action\u201d is generally understood to mean a situation or state of facts that entitles a party to maintain an action in a court or a tribunal; a group of operative facts giving rise to one or more bases for sitting; a factual situation that entitles one person to obtain a remedy in court from another person. In Black's Law Dictionary a \u201ccause of action\u201d is stated to be the entire set of facts that gives rise to an enforceable claim; the phrase comprises every fact, which, if traversed, the plaintiff must prove in order to obtain judgment. In Words and Phrases (4th Edn.), the meaning attributed to the phrase \u201ccause of action\u201d in common legal parlance is existence of those facts, which give a party a right to judicial interference on his behalf. 18. In Halsbury's Laws of England (4th Edn.) it has been stated as follows: \u201c \u2018Cause of action\u2019 has been defined as meaning simply a factual situation, the existence of which entitles one person to obtain from the court a remedy against another person. The phrase has been held from earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which a defendant would have a right to traverse. \u2018Cause of action\u2019 has also been taken to mean that a particular act on the part of the defendant which gives the plaintiff his cause of complaint, or the subject-matter of grievance founding the action, not merely the technical cause of action.\u201d 16. In the present case, we find that most of the prosecution witnesses are situated in Delhi. That 12 official witnesses are serving in New Delhi. If the Transfer Petition is allowed, they would be required to travel from New Delhi to Allahabad (Prayagraj), which would cause hinderance in performing their official duties. 17. The alleged apprehension of the Petitioners and Respondent No.2 and 3 do not constitute any exceptional circumstances for transferring the criminal case from Delhi to Allahabad (Prayagraj). A three judge bench of this Court in Harita Sunil Parab v. State (NCT of Delhi)3, held that : \u201c8. The apprehension of not getting a fair and impartial enquiry or trial is required to be reasonable and not imaginary, based upon conjectures and surmises. No universal or hard-and-fast rule can be prescribed for deciding a transfer petition, which will always have to be decided on the facts of each case. Convenience of a party may be one of the relevant considerations but cannot override all other considerations such as the availability of witnesses exclusively at the original place, making it virtually impossible to continue with the trial at the place of transfer, and progress of which would naturally be impeded for that reason at the transferred place of trial. The convenience of the parties does not mean the convenience of the petitioner alone who approaches the court on misconceived notions of (2018) 6 SCC 358 apprehension. Convenience for the purposes of transfer means the convenience of the prosecution, other accused, the witnesses and the larger interest of the society. The charge-sheet in FIR No. 351 of 2016 reveals that of the 40 witnesses, the petitioner alone is from Mumbai, two are from Ghaziabad, and one is from Noida. The charge-sheet of FIR No. 1742 of 2016 is not on record. A reasonable presumption can be drawn that the position would be similar in the same also. 9. In Mrudul M. Damle v. CBI [Mrudul M. Damle v. CBI4 , it was noticed that early conclusion of the trial becomes much more difficult involving more expenses for the prosecution by it having to bear travelling expenses of official and non-official witnesses and all of which ultimately causes the trial to linger on for years.\u201d 18. The counsel for the Petitioner at the conclusion of hearing in the present transfer petition made a prayer for continuation of Interim Bail from arrest, which was granted by the High Court of Allahabad pursuant to the Order passed in the Transfer Petition. It would be open for the Petitioner to move the appropriate Court in New Delhi for interim relief after the proceedings are transferred. 19. In view of the discussion above, the Transfer Petition is dismissed. (2012) 5 SCC 706 The proceedings arising out of FIR No. 39 of 2016 which were transferred to the Court of Metropolitan Magistrate at Allahabad (Prayagraj), Uttar Pradesh are directed to be transferred back to the Court of Metropolitan Magistrate 461 North West, Rohini Courts, New Delhi. 20. The Registry is directed to transmit a copy of this Order to the Courts of the Metropolitan Magistrate at Allahabad (Prayagraj), Uttar Pradesh and the Metropolitan Magistrate 461 North West, Rohini Courts, New Delhi. Parties are directed to appear before Court of Metropolitan Magistrate 461 North West, Rohini Courts, New Delhi on 15th April, 2021. There will be no Order as to costs. Pending Applications, if any, are accordingly disposed of. ......................................................J. (ASHOK BHUSHAN) ......................................................J. 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{"id": "808484", "text": "CASE NO.: Appeal (civil) 667-671 of 2004 PETITIONER: Ashwin S. Mehta and Anr. RESPONDENT: Custodian and Ors. DATE OF JUDGMENT: 03/01/2006 BENCH: S.B. Sinha & P.P. Naolekar JUDGMENT: J U D G M E N T WITH CIVIL APPEAL NOS. 672-675, 676-680 AND 681 OF 2004 S.B. SINHA, J : These appeals are directed against a judgment and order dated 17.10.2003 passed by the Special Court constituted under the Special Courts (Trial of Offences Relating to Transactions in Securities) Act, 1992 (for short \"the Act\") in Misc. Application Nos. 41 of 1999, 4 of 2001, 265, 266 and 275 of 2003. BACKGROUND FACTS The Appellants herein who are related to one Harshad S. Mehta (since deceased) purchased nine residential flats in a building called Madhuli Apartments in Worli area of Mumbai. The family of the Appellants consists of four brothers, their wives, children and their widowed mother. The eldest among them, Harshad S. Mehta, has since expired. The said nine flats, it is said, were merged and redesigned for joint living of the entire family. The Appellants herein and the said late Harshad Mehta were persons notified in terms of the Act which was enacted to provide for the establishment of a Special Court for the trial of offences relating to transactions in securities and for matters connected therewith. In terms of the provisions of the Act, along with late Harshad Mehta, the Custodian had notified 29 entities in terms of Section 3 of the Act, comprising three of his younger brothers, wife of late Harshad Mehta, wives of two of his younger brothers and other corporate entities, a partnership firm and three HUFs. However, out of the said 29 entitles, only Late Harshad Mehta and two of his younger brothers were cited as accused in various criminal cases filed against them. The properties of Late Harshad Mehta and the Appellants, herein being notified persons stood attached in terms of the provisions of the Act. PROCEEDINGS BEFORE THE SPECIAL COURT Before the learned Special Court, the parties herein filed several applications which can be sub-divided in three categories, as would be noticed shortly hereinafter. It is not in dispute that the learned Special Court on or about 3.08.1993 issued directions in various proceedings before it appointing auditors to prepare and audit the books of accounts of all notified persons for the period 1.4.1990 and 8.06.1992, i.e., the date of the notification. Three firms of Chartered Accountants were appointed to prepare statement of accounts and liabilities of each of the Appellants, herein. A Chartered Accountants' Firm was appointed by the learned Special Judge by an order dated 17.9.2003 to represent all notified entities in the family of late Harshad Mehta for the purpose of ascertaining their tax liabilities. We may, at this juncture, notice the nature of the applications filed by the parties, herein before the learned Special Court: (i) On 26.04.1999, the Custodian filed an application being Misc. Application No. 41 of 1999 seeking permission of the Special Court for sale of residential premises commonly known as Madhuli of eight notified entities. (ii) A Misc. Application being 4 of 2001 was filed by the Custodian praying for the sale of commercial premises. (iii) The Appellants herein filed several Misc. Applications praying for lifting of attachment on their residential premises on the ground that the same had been purchased much prior to 1.4.1991 and the same had no nexus with any illegal transactions in securities. Alternatively, it was prayed that since their asset base was greater than genuine liabilities, the said residential premises should be released from attachment. IMPUGNED JUDGMENT By reason of the impugned order dated 17.10.2003, the learned Special Judge allowed Misc. Applications Nos. 4 of 2001 and 41 of 1999. The Misc. Applications filed by the Appellants herein for release of the residential flats as well as the commercial premises from attachment were dismissed. It was directed: \"In case, all adult members of the family of late Shri Harshad Metha, who are presently occupying the abovereferred flats, file an undertaking in this Court within a period of four weeks from today undertaking to vacate the flat occupied by them and hand over peaceful possession thereof to the custodian within a period of four weeks from the date on which the custodian sends them communication asking them to vacate the flats, on sale of the flats being sanctioned by the Court. The custodian shall permit the members of family of late Shri Harshad Mehta to occupy the flats during the time that the process of the sale of the flats goes on. In case no such undertakings are filed by the adult members as directed above, within the aforesaid period, the custodian shall stand appointed as receiver of the flats which are described in Exh. 8 and Exh. 8-1 to Misc. Petition No. 41 of 1999.\" CONTENTIONS OF THE PARTIES Appellants Mr. Mahesh Jethmalani, learned senior counsel appearing on behalf of the Appellants in assailing the said judgment of the learned Special Court inter alia raised the following contentions: (i) Some of the entities having their asset base much more than actual liability, the impugned judgments are unsustainable. There was no occasion for the Custodian to club all the notified entities in one block so as to be termed as Harshad Mehta Group and/or to club their assets and liabilities jointly. Although in relation to a body corporate incorporated and registered under the Indian Companies Act, the doctrine of lifting the corporate veil would be applicable, but the same cannot be applied in case of individuals. (ii) Having regard to the fact that only three entitles out of eight were involved in the offences, the liability of Harshad Mehta could not have been clubbed for the purpose of directing attachment and consequent sale of the properties which exclusively belong to them. (iii) The liabilities of Harshad Mehta, who was a sui generis, could have been recovered from the properties held and possessed by him or from the companies floated by him but not from the individual entities; at least two of whom being medical practitioners have their income from other sources. (iv) The books of accounts and other documents on the basis whereof the auditor's report had been made having not been allowed to be inspected by the Appellants herein on the plea that they had the knowledge thereabout, the same could not have been taken into consideration for the purpose of passing of the impugned order or otherwise. (v) The Appellants having preferred appeals against the income tax orders of assessment passed by the authority and the same having been set aside, no liability to pay income tax by the Appellants as of now being existing, the residential properties could not have been sold. (vi) Drawing our attention to a representative chart showing the discrepancies in the accounts of Mrs. Deepika A. Mehta as shown in (a) affidavit by the Custodian; (b) Books of Accounts maintained by the Appellants; and (c) Auditor's Report, it was submitted that the Auditor's Report could not have been relied upon. (vii) A copy of the Auditor's Report having only been supplied during pendency of these appeals, the learned Special Judge committed a serious error in passing the impugned judgment relying on or on the basis thereof. Respondents Mr. Ashok H. Desai, learned senior counsel appearing on behalf of the Custodian, on the other hand, would, inter alia, submit: (i) In view of the decision of this Court in L.S. Synthetics Ltd. v. Fairgrowth Financial Services Ltd. and Another [(2004) 11 SCC 456] all properties belonging to the notified persons being subject to automatic attachment, could be applied for discharge of the joint liabilities of the Harshad Mehta Group in terms of Section 11 of the Act. (ii) The applications for de-notification filed by the Appellants herein having been withdrawn, the contention raised by the Appellants that they are not liable in terms of the provisions of the Act are not open to question, particularly, in view of the fact that no application for de- notification could be filed subsequently as they had become barred by limitation. (iii) The order of assessment under the Income Tax Act having become final and binding as on the date when the orders of assessment were passed and, thus, mere filing of appeals, were not sufficient for raising a contention that the taxes did not become due. Reliance in this behalf has been placed on B.C. Dalal v. Custodian [Civil Appeal No. 2795 of 2004] and The Kedarnath Jute Mfg. Co. Ltd. v. The Commissioner of Income Tax, (Central), Calcutta [(1972) 3 SCC 252]. (iv) The Appellants herein, apart from the corporate entity which is a front company of late Harshad Mehta, have received large loans, advances and credits from the Harshad Mehta Group and there had been intermingling of the assets to the tune of crores of rupees, they cannot escape their liabilities under the Act. The affidavit filed by the Appellants herein before the Special Court clearly shows that the liabilities exceed the assets in all cases. Even in the case of Dr. Pratima Mehta wherein some excesses has been shown, if the interest is calculated for the last over 13 years of the amount received, the liabilities would exceed the assets. (v) The assets and liabilities of each of the entities having been audited by the Chartered Accountants, it is evident from the reports that in all cases liabilities exceed the assets. (vi) The decretal amount against the Harshad Mehta Group also would exceed Rs. 4339 crores and, thus, the assets held by the Appellants are wholly insufficient to meet the liabilities. (vii) Furthermore, the Appellants are also unable to maintain their residential properties as the Custodian had to pay a sum of Rs. 1.06 crores towards the maintenance of the said residential properties. The assets of the Harshad Mehta Group are valued at Rs. 972 crores apart from the income tax dues whereas the aggregate amount of income tax dues exceed Rs. 13,800 crores. (viii) Dr. Hitesh Mehta and Dr. Pratima Mehta who are medical practitioners by profession having affirmed affidavits admitting that the share broking and investment businesses which were part of family businesses were undertaken and conducted by late Harshad Mehta and they had no knowledge thereabout nor were they involved therewith, they at this stage cannot be permitted to turn round and contend that they have nothing to do with the liabilities of Late Harshad Mehta. (ix) The sale of commercial property had never been seriously contested by the Appellants and in fact the contention of the Appellants herein before the Special Court was that if the commercial properties were sold, there would be no need to sell the residential properties. Even before this Court, the sale of commercial properties had not been questioned. A large number of commercial properties having already been sold and third party rights having been created, this Court should not interfere with the impugned judgment. THE ACT The Statement of Objects and Reasons for enacting the Act reads as under: \"(1) In the course of the investigations by the Reserve Bank of India, large scale irregularities and malpractices were noticed in transactions in both the Government and other securities, indulged in by some brokers in collusion with the employees of various banks and financial institutions. The said irregularities and malpractices led to the diversion of funds from banks and financial institutions to the individual accounts of certain brokers. (2) To deal with the situation and in particular to ensure speedy recovery of the huge amount involved, to punish the guilty and restore confidence in and maintain the basic integrity and credibility of the banks and financial institutions the Special Court (Trial of Offences Relating to Transactions in Securities) Ordinance, 1992, was promulgated on the 6th June, 1992. The Ordinance provides for the establishment of a Special Court with a sitting Judge of a High Court for speedy trial of offences relating to transactions in securities and disposal of properties attached. It also provides for appointment of one or more custodians for attaching the property of the offenders with a view to prevent diversion of such properties by the offenders.\" Section 3 of the Act provides for appointment and functions of the Custodian. Sub-section (2) of Section 3 postulates that the Custodian may, on being satisfied on information received that any person has been involved in any offence relating to transactions in securities after the 1st day of April, 1991 and on and before 6th June, 1992 (the Statutory Period), notify the name of such person in the Official Gazette. Sub-section (3) of Section 3 contains a non-obstante clause providing that on and from the date of notification under sub-section (2), any property, movable or immovable, or both, belonging to any person notified under that sub-section shall stand attached simultaneously with the issue of the notification and such attached properties may be dealt with by the Custodian in such manner as the Special Court may direct. In the Ordinance which preceded the Act, there was no provision for giving post facto hearing to a notified person for cancellation of notification, but such a provision has been made in the Act, as would appear from Section 4(2) thereof. Sub-section (1) of Section 4 of the Act reads as under: \"4. Contracts entered into fraudulently may be cancelled.-- (1) If the Custodian is satisfied, after such inquiry as he may think fit, that any contract or agreement entered into at any time after the 1st day of April, 1991 and on and before the 6th June, 1992 in relation to any property of the person notified under sub-section (2) of section 3 has been entered into fraudulently or to defeat the provisions of this Act, he may cancel such contract or agreement and on such cancellation such property shall stand attached under this Act; Provided that no contract or agreement shall be cancelled except after giving to the parties to the contract or agreement a reasonable opportunity of being heard.\" Sub-section (2) of Section 4, however, provides for a hearing as regard correctness or otherwise of the notification notifying a person in this behalf, in the event, an appropriate application therefor is filed within 30 days of the issuance of such notification. Section 5 provides for establishment of the Special Court. Section 7 confers exclusive jurisdiction upon the Special Court. Any prosecution in respect of any offence referred to in sub-section (2) of Section 3 pending in any Court is required to be transferred to the Special Court. Section 9 provides for the procedure and powers of the Special Court. Section 9-A, which was inserted by Act 24 of 1994 with effect from 25th January, 1994, confers all such jurisdiction, powers and authority as were exercisable, immediately before such commencement by any Civil Court in relation to the matter specified therein. Section 11 of the Act reads as under: \"11. Discharge of liabilities.\u0017(1) Notwithstanding anything contained in the Code and any other law for the time being in force, the Special Court may make such order as it may deem fit directing the Custodian for the disposal of the property under attachment. (2) The following liabilities shall be paid or discharged in full, as far as may be, in the order as under: (a) all revenues, taxes, cesses and rates due from the persons notified by the Custodian under sub-section (2) of Section 3 to the Central Government or any State Government or any local authority; (b) all amounts due from the person so notified by the Custodian to any bank or financial institution or mutual fund; and (c) any other liability as may be specified by the Special Court from time to time.\" ANALYSIS OF THE STATUTORY PROVISIONS The Act provides for stringent measures. It was enacted for dealing with an extra-ordinary situation in the sense that any person who was involved in any offence relating to transaction of any security may be notified whereupon, all his properties stand attached. The provision contained in the Act being stringent in nature, the purport and intent thereof must be ascertained having regard to the purpose and object it seeks to achieve. The right of a person notified to file an application or to raise a defence that he is not liable in terms of the provisions of the Act or in any event, the properties attached should not be sold in discharge of the liabilities can be taken at the initial stage by filing an application in terms of Sub-section (2) of Section 4 of the Act. But, at the stage when liabilities are required to be discharged, the notified person may inter alia raise a contention inter alia for the purpose of establishing that the properties held and possessed by them are sufficient to meet their liabilities. In terms of the provisions of the Act, the Special Court had been conferred a very wide power. PRECEDENTS AS REGARD SCOPE OF THE ACT Constitutionality and / or interpretation of the Act came up for consideration before this Court in Harshad Shantilal Mehta v. Custodian and Others [(1998) 5 SCC 1] wherein the following questions were framed: \"(1) What is meant by revenues, taxes, cesses and rates due? Does the word \"due\" refer merely to the liability to pay such taxes etc., or does it refer to a liability which has crystallised into a legally ascertained sum immediately payable? (2) Do the taxes [in clause (a) of Section 11(2)] refer only to taxes relating to a specific period or to all taxes due from the notified person? (3) At what point of time should the taxes have become due? (4) Does the Special Court have any discretion relating to the extent of payments to be made under Section 11(2)(a) from out of the attached funds/property? (5) Whether taxes include penalty or interest? (6) Whether the Special Court has the power to absolve a notified person from payment of penalty or interest for a period subsequent to the date of his notification under Section 3. In the alternative, is a notified person liable to payment of penalty or interest arising from his inability to pay taxes after his notification?\" As regard, Question No. 1, it was held: \" In the present case, the words \"taxes due\" occur in a section dealing with distribution of property. At this stage the taxes \"due\" have to be actually paid out. Therefore, the phrase \"taxes due\" cannot refer merely to a liability created by the charging section to pay the tax under the relevant law. It must refer to an ascertained liability for payment of taxes quantified in accordance with law. In other words, taxes as assessed which are presently payable by the notified person are taxes which have to be taken into account under Section 11(2)(a) while distributing the property of the notified person. Taxes which are not legally assessed or assessments which have not become final and binding on the assessee, are not covered under Section 11(2)(a) because unless it is an ascertained and quantified liability, disbursement cannot be made. In the context of Section 11(2), therefore, \"the taxes due\" refer to \"taxes as finally assessed\". In regard to Question No. 2, it was opined: \"Every kind of tax liability of the notified person for any other period is not covered by Section 11(2)(a), although the liability may continue to be the liability of the notified person. Such tax liability may be discharged either under the directions of the Special Court under Section 11(2)(c), or the taxing authority may recover the same from any subsequently acquired property of a notified person (vide Tejkumar Balakrishna Ruia v. A.K. Menon) or in any other manner from the notified person in accordance with law. The priority, however, which is given under Section 11(2)(a) to such tax liability only covers such liability for the period 1-4-1991 to 6-6-1992.\" In respect of the Question No. 3, it was opined that the date of distribution arrives when the Special Court completes the examination of claims under Section 9-A and if on that date, any tax liability for the statutory period is legally assessed, and the assessment is final and binding on a notified person, that liability would be considered for payment under section 11(1)(a), subject to what follows. So far as Question No. 4 is concerned, this Court despite upholding the contention of the Custodian that no question of any reopening of tax assessments before the Special Court would arise and the liability of the notified person to pay the tax will have to be determined under the machinery provided by the relevant tax law, observed: \"But the Special Court can decide how much of that liability will be discharged out of the funds in the hands of the Custodian. This is because the tax liability of a notified person having priority under Section 11(2)(a) is only tax liability pertaining to the \"statutory period\". Secondly payment in full may or may not be made by the Special Court depending upon various circumstances. The Special Court can, for this purpose, examine whether there is any fraud, collusion or miscarriage of justice in assessment proceedings. The assessee who is before the Special Court, is a person liable to be charged with an offence relating to transactions in securities. He may not, in these circumstances, explain transactions before the Income Tax authorities, in case his position is prejudicially affected in defending criminal charges. Then, on account of his property being attached, he may not be in a position to deposit the tax assessed or file appeals or further proceedings under the relevant tax law which he could have otherwise done. Where the assessment is based on proper material and pertains to the \"statutory period\", the Special Court may not reduce the tax claimed and pay it out in full. But if the assessment is a \"best judgment\" assessment, the Special Court may examine whether, for example, the income which is so assessed to tax bears comparison to the amounts attached by the Custodian, or whether the taxes so assessed are grossly disproportionate to the properties of the assessee in the hands of the Custodian, applying the Wednesbury Principle of Proportionality. The Special Court may in these cases, scale down the tax liability to be paid out of the funds in the hands of the Custodian.\" In regard to Question No. 5, this Court agreed with the finding of the Special Court that neither penalty nor interest can be considered as tax under Section 11(2)(a) of the Act. So far Question No. 6 is concerned, it was held that the remedy of a notified person who is assessed to penalty or interest, after the notified period, would be entitled to move the appropriate authority under the taxing statute stating: \"If it is open to him under the relevant taxing statute to contend that he was unable to pay his taxes on account of the attachment of all his properties under the Special Court Act, and that there is a valid reason why penalty or interest should not be imposed upon him after the date of notification, the authorities concerned under the taxing statute can take notice of these circumstances in accordance with law for the purpose of deciding whether penalty or interest can be imposed on the notified person. The Special Court is required to consider this question only from the point of view of distributing any part of the surplus assets in the hands of the Custodian after the discharge of liabilities under Sections 11(2)(a) and 11(2)(b). The Special Court has full discretion under Section 11(2)(c) to decide whether such claim for penalty or interest should be paid out of any surplus funds in the hands of the Custodian.\" We must, however, notice that reliance was sought to be placed on paragraph 14 of the said judgment wherein reference was made to a Bombay High Court judgment in Hitesh Shantilal Mehta v. Union of India [(1992) 3 Bom CR 716] wherein it was held: \"If the person ... approaches the Special Court and makes out, for example, a case that the property which is attached has no nexus of any sort with the illegal dealings in securities belonging to banks and financial institutions during the relevant period and/or that there are no claims or liabilities which have to be satisfied by attachment and sale of such property, in our view, the Special Court would have the power to direct the Custodian to release such property from attachment.\" But, the said observation was held to be not laying down a law by a 3- Judge Bench of this Court in L.S. Synthetics Ltd. v. Fairgrowth Financial Services Ltd. and Another [(2004) 11 SCC 456] holding: \"(i) A notified party has the requisite locus to bring the fact to the notice of the Special Court that certain sum is owing and due to him from a third party whereupon a proceeding can be initiated for recovery thereof by the Custodian and consequent application thereof in discharge of the liability of the notified person. (ii) Sub-section (3) of Section 3 should be literally construed and so construed, all properties belonging to the notified person shall be subject to attachment which may, consequently, be applied for discharge of his liabilities in terms of Section 11 of the said Act. (iii) The provisions of the Limitation Act, 1963 have no application in relation to the proceedings under the said Act.\" The ratio of the said decision as regard applicability of the Limitation Act was further considered by a Division bench of this Court in Fairgrowth Investments Ltd. v. Custodian [(2004) 11 SCC 472] wherein it was held that Section 5 of the Limitation Act will have no application in relation to an application falling under Sub-section (2) of Section 4 of the Act stating: \"\u0005It is enough for the purpose of this appeal to hold that Section 29(2) of the Limitation Act, 1963 does not apply to proceedings under Section 4(2) of the Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992. Since the appellant's petition of objection had been filed much beyond the period prescribed under that section, the Special Court was right in rejecting the petition in limine. The appeal is accordingly dismissed but without any order as to costs.\" ATTACHMENT OF PROPERTIES The Appellants herein are notified persons in terms of the provisions of the Act. Therefore, all the properties belonging to them stand attached. Such attachment being automatic, no finding was required to be arrived at that the same had been acquired either during the notified period or the Appellants were involved in offences in transactions in securities. In Tejkumar Balakrishna Ruia v. A.K. Menon and Another [(1997) 9 SCC 123], this Court held: \"In our view, the terms of sub-section (3) of Section 3 are clear. By reason thereof, the property that belongs to a notified person stands attached simultaneously with the issue of the notification that makes him a notified party. The words \"on and from the date of notification\" indicate the point of time at which the attachment takes effect; this is reiterated by the words \"shall stand attached simultaneously with the issue of the notification\". This also indicates that no separate notification or order in regard to the attachment is necessary. Neither the words \"on and from the date of notification\" nor the word 'property' lead to the conclusion that what is attached is not only that property which the notified person owned or was possessed of on the date of the notification but also all such property as he might acquire at any time thereafter. The intention to attach property which did not belong to the notified person on the date of the notification but which he might acquire later would, had it been there, have been clearly expressed and sub-section (3) would have stated that such property would stand attached the moment it was acquired by the notified person. The Act would also have made provision for a subsistence allowance or the like for the notified person. It seems to us that to give to Section 3(3) the wide meaning that has been ascribed to it in the judgment and order under appeal would render it perilously close to being held unconstitutional, for it would deprive the notified person, so long as he remained a notified person, from earning a livelihood. Even to say that such interpretation would reduce a notified person to beggary would not be accurate (sic in accurate) because the alms that he received, being his property, would stand attached. The apprehension expressed by the Special Court does not appear to be well founded: if what a notified person obtains by way of purported income or gift or inheritance is really his own money, such money would, upon establishment of the fact, stand attached automatically under the provisions of Section 3(3). In any event, it is for Parliament to enact a law that meets all contingencies. The courts must interpret the law as it reads. While a purposive interpretation is permissible where two interpretations are possible, the purposive interpretation must be such as preserves the constitutionality of the provision.\" It has further been held that the property, be shares, dividends and bonus and rights shares, would also be attached property. ISSUES (i) Whether the Appellants being not involved in offences in transactions in securities could have been proceeded against in terms of the provisions of the Act. (ii) Whether individual liabilities of the Appellants ought to have been separately considered by the Special Court as not a part of Harshad Mehta Group. (iii) Whether the tax liabilities could not have been held to be due as the order of assessments did not become final and binding. (iv) Whether the commercial properties could have been sold in auction. (v) Whether the residential properties should have been released from attachment. Before adverting to the questions raised herein, we may notice that both the parties have raised several contentions before us which have not precisely been raised before the learned Special Judge. Several subsequent events have also been brought to our notice. The parties have also filed several charts before us showing individual assets and liabilities. It has, as noticed hereinbefore, further been contended that various best judgment assessment passed by the Assessing Authority against some of the Appellants have been set aside in appeal and the matters are pending reassessment before the Assessing Authority. APPLICATION FOR DE-NOTIFICATION The Appellants' case is that the individual and corporate Appellants other than Harshad Mehta, Ashwin Mehta and Sudhir Mehta filed applications, within the prescribed period, before the Special Court praying for their de-notifications. However, by an order dated 14.07.2000, the said applications were permitted to be withdrawn with a permission to re-file the same. It is not in dispute that the said applications are pending for consideration before the Special Court. They have not been heard. What would be the effect of the jurisdictional question as regard maintainability of the said application, being barred by limitation, would indisputably fall for consideration before the Special Court. We, therefore, as at present advised, refrain ourselves from adverting to the said question. The question, however, before us is as to whether any contention which may not have a direct bearing with the question as to whether the Special Court could entertain their applications for de-notifications could be raised by way of defence. It is no doubt true that the law of limitation bars a remedy but not a right. [See Bombay Dyeing & Manufacturing Co. Ltd. v. The State of Bombay and others, AIR 1958 SC 338, Savitra Khandu Beradi v. Nagar Agricultural Sale and Purchase Co-operative Society Ltd. Ahmednagar and others [AIR 1957 Bom 178, para 6] and Hari Raj Singh v. Sanchalak Panchayat Raj U.P. Govt. Lucknow and others [AIR 1968 All 246, paras 14 and 15], but as observed hereinbefore, it would not be proper for us to consider as to whether such a remedy being not available, in terms of Section 4(2) of the Act can still be determined if raised by way of defence. In L.S. Synthetics Ltd. (supra), this Court observed: \"A statute of limitation bars a remedy and not a right. Although a remedy is barred, a defence can be raised. In construing a special statute providing for limitation, consideration of plea of hardship is irrelevant. A special statute providing for special or no period of limitation must receive a liberal and broader construction and not a rigid or a narrow one. The intent and purport of Parliament enacting the said Act furthermore must be given its full effect. We are, therefore, of the opinion that the provisions of the Limitation Act have no application, so far as directions required to be issued by the Special Court relating to the disposal of attached property, are concerned.\" Although, we do not intend to enter into the correctness or otherwise of the said contention of the Appellants at this stage, however, there cannot be any doubt whatsoever that they being notified persons, all their properties would be deemed to be automatically attached as a consequent thereto. For the said purpose, it is not necessary that they should be accused of commission of an offence as such. The contention of the Appellants to the effect that their properties should have been attached only towards the liabilities incurred by the parties in respect of the transactions made during the Statutory Period, cannot be accepted as all the Appellants being notified, the attachment of the assets would be automatic. [L.S. Synthetics Ltd. (supra)] However, the contention of the Appellants that the properties held by them otherwise are sufficient to meet their liabilities was required to be gone into, as, in our considered opinion, there cannot be a any dispute that the Appellants have such a right. A corporate veil indisputably can be lifted on several grounds. LIFTING THE CORPORATE VEIL The principle of lifting the corporate veil, however, ipso facto would not apply to the individuals. The Custodian in a case of this nature may, however, show that the transactions entered into apparently by Harshad Mehta were intimately connected with acquisition of properties in the name of others. A transaction of Benami indisputably can be a subject matter of a lis in terms of Section 4(1) of the Act as and when such a question is raised, the same may have to be dealt with by the Special Court appropriately. However, nexus between several persons in dealing with the matter may be established by the Custodian. LIABILITIES OF THE APPELLANTS \u0016 DETERMINATION The fact, however, remains that the copies of the documents, books of accounts and other records on the basis whereof the Auditors appointed by the Court filed their reports had not been shown to the Appellants herein, on the premise that they were in know of the things. As the said question has not been gone into by the learned Judge, Special Court, it is necessary that the same be considered and appropriately dealt with. The Appellants, however, raised the following contentions: (i) That the statement prepared by the Custodian and Exhibited as 'C' to his affidavit in rejoinder dated 1.10.2003 was based on material, at least, all of which were not connected to the Appellants as were pointed out before the Court. The learned Special Judge has accepted the figures stated by the Custodian at face value without probing the basis on which the statement was prepared, even though the Appellants in their sur-rejoinder asserted that the figures in the statement were contrary to both the books of accounts drawn by them as also the Auditor's report. (ii) In Para 14 of the sur-rejoinder, the Appellants denied the asset and liability position as arrived at by the Custodian. According to the Appellants, the Custodian has under-estimated the assets and exaggerated and overstated their liabilities. A triable issue had been raised and the Custodian's petition should have been converted into a suit. This was not done. In fact, according to the Appellants, there are gross errors in the material relied upon by the Custodian. The said contention must be properly adjudged. Several charts have been filed before us by the Appellants to show: (i) liabilities have been exaggerated by the Custodian. No credit for Rs. 1227 crores released to revenue on interest are given by the Custodian. (ii) liabilities have been shown in relation to unperformed contracts. (iii) Credits not given for relief obtained from Income Tax. Subsequent to the filing of the present appeal in a large number of cases the revenue demands have been set aside. It is open to the Appellants, herein to show that even if they continued to be notified, the Custodian was not right in clubbing all the individual members of the family as a single entity styled as Harshad Mehta Group. It is interesting to note that the properties belonging to the mother of Harshad Mehta has since been released from attachment. The learned Special Court, despite, such a contention having been raised by the Appellants in their affidavit in reply did not advert thereto. It is furthermore not in dispute that pursuant to or in furtherance of the directions issued by the learned Special Court, the accounts of all entities, be it corporate or individual, were drawn up separately which approach had not been dis-approved by the Auditor appointed by the Special Court. Even in the rejoinder filed by the Custodian, e.g., paragraphs 14, 20, 21 and 22, before the Special Court, such contentions have been raised. A sur-rejoinder thereto was filed on 15.10.2003 and in paragraphs 1 to 6 thereof, the said statements were denied and disputed. Our attention has also been drawn to a letter dated 7.10.2003 addressed by all the Appellants to the Office of the Custodian wherein the attention of the Custodian was drawn to the fact that all the documents relied upon by him had not been permitted to be inspected and he was requested to forward a report prepared by the Chartered Accountants in respect of the individual addressors of the letters. The said letter was replied by the Custodian by his letter dated 10.10.2003 wherein none of the queries contained in paragraphs 3 to 8 of the said letter was even attempted to be answered. The Appellants, herein contended that the Custodian did not furnish the requisite particulars thereof and inspection was refused on the grounds stated therein. The learned Special Court, in paragraph 9 of the impugned order, stated: (i) the grand total of the admitted liability, thus, comes to Rs. 7,279,127,317.15. (ii) the amount of priority demand of Income Tax liabilities comes to Rs. 18,297,576,248. (iii) the estimated value of the immovable properties of this group is Rs. 184,030,038. (iv) Thus, the total value of the assets as per the affidavit filed on behalf of the Custodian of Harshad Mehta Group is Rs. 9,727,332,166.94. (v) Thus, taking into consideration the total of the decretal amount and the income-tax liability, it is clear that the total assets of Harshad Mehta group would be far below the liabilities. In arriving at the said finding, no contention of the parties raised in their respective affidavits had been adverted to nor any material filed before it was analysed. In our opinion, the learned Judge, Special Court should have analysed the respective contentions of the parties in greater details and in particular in regard to assets and liabilities of the separate entities and having regard to the contentions raised by them that they are not part of the Harshad Mehta Group and their individual liabilities can be met from the assets held and possessed by them separately. The statement annexed to the affidavit of the Custodian showed individual break-up and in that view of the matter the net asset picture of each individual of the Appellants herein on individual basis and the effect thereof, in our opinion, should have received serious consideration at the hands of the learned Special Court. The Custodian in terms of the directions issued by the learned Special Court had affirmed an affidavit putting on record the assets and liabilities of each of the members of the so-called Harshad Mehta Group on an individual basis. Allegedly, therein it was shown that the individuals had received large loans, advances, credits from the Harshad Mehta Group and there had been intermingling of the assets to the tune of crores of rupees. Before us, Mr. Desai had filed a chart for showing the same. The said chart, however, shows that at least Mrs. Deepika Mehta held assets more than her liabilities. Mr. Desai contended that if interest is calculated, liabilities would be more than assets. But, the said chart has been drawn up on the basis of the audited accounts, the correctness whereof is itself in dispute. Before us a chart has been produced by the Appellants herein as regards Mrs. Deepika Mehta to show her liabilities payable as on 8th June, 1992 which are as under: \"Chart showing comparison of payables as on 8th June, 1992 As per Custodian's Affidavit As per Books of Accounts As per Auditor's Report M/s. Harshad S. Mehta (Payable as on 8.6.92) 25,44,68,654 9,70,18,916 9,70,18,916 M/s. Ashwin S. Mehta (Payable as on 8.6.92) 2,68,47,613 1,02,35,942 1,02,35,942 M/s. Jyoti H. Mehta (Payable as on 8.6.92) 1,45,28,332 55,39,083 55,39,083 Interest payable towards three brokerage firms as on 8.6.1992 6,14,86,640 2,34,42,444 2,34,42,444\" We, therefore, have not been given a clear picture as to the correctness or otherwise of the affidavit filed by the Custodian vis-`-vis the Books of Accounts which have been maintained by the Appellants themselves as well as the Auditor's Report. The learned Judge merely accepted the figures mentioned in the affidavit of the Custodian and relied thereupon in paragraphs 9 to 11 of the judgment without discussing the contentions and arguments raised on behalf of the Appellants, herein. We, therefore, are of the opinion, in the interest of justice, that it is necessary to give another opportunity of hearing to the Appellants. It is true that horrendous figures as regard the liabilities of Harshad Mehta have been projected before us but the same had been shown to be of the entire Group. If the liabilities of the individual entities are not treated as that of the group, for one reason or the other, indisputably, liability of those who have nothing to do with the dealings of Harshad Mehta either in their individual capacities or as Directors of some company or otherwise must be dealt with separately. The contention raised on behalf of the Appellants is that the Harshad Mehta should be considered to be sui generis and the Custodian may realize his dues from his personal assets as also of those with which he was concerned together with the assets of his front companies but such liability should not be fastened upon others who had nothing to do therewith. As regards liabilities of Harshad Mehta, the Appellants contended that since his expiry in the year 2001 his legal interests are not being defended both in the court as well as before the revenue, as a result, liabilities have been foisted upon him a large part which is on account of interest and penalties. His death has also forced upon him bankruptcy. On the other hand, the contention of the Custodian is that the Appellants had not only taken huge loans or advances from Harshad Mehta in one capacity or the other but also even transactions and shares were made by Harshad Mehta on their behalf. Further contention of the Custodian is that even Dr. Hitesh Mehta and Dr. Pratima Mehta have admitted that they had no knowledge about the transactions. This may be so, but then the effect of the rival contentions was required to be gone into by the learned Special Court. A finding of fact arrived at upon discussing and analyzing the respective contentions could have gone a long way in assisting this Court in arriving at a correct conclusion. The learned Judge proceeded on the basis that the assets and liabilities, joint and collective, of all those who are related with Harshad Mehta as also the corporate entities in which he was a Director or had some other interest must be considered as a group. Even in this behalf, it was necessary for the Special Judge to assign sufficient and cogent reasons. A question may further arise as to whether the learned Judge was correct in considering the individual liabilities of the notified parties as the liabilities of the group. If those individuals, who had no connection with Harshad Mehta could not have been proceeded against for meeting the liabilities of Harshad Mehta jointly or severally, a clear finding was required to be arrived at. Only because there had been large intermingling and flow of funds from Harshad Mehta and inter se within the group, the same by itself may not justify the conclusion that all of their assets were required to be sold irrespective of their individual involvement. It was, thus, necessary for the learned Special Court to arrive at a firm conclusion as regard the involvement of the individuals with Harshad Mehta, if any, and the extent of his liability as such. Furthermore, the question as regard liability of the parties should have been determined at the stage of Section 9-A of the Act. The Appellants have contended that the Custodian had taken contradictory or inconsistent stand inasmuch as the liabilities of all the entities were treated to be joint liabilities of Harshad Mehta group. He furthermore wanted to treat the liabilities of the notified entities also as their separate liabilities. He has proceeded on the basis that even if the assets and liabilities of all individuals is taken on an individual basis, the liabilities would exceed assets in the case of each individual and corporate entity. It had, however, never been the case of the Custodian that the examination of claims of all the notified parties is complete. It does not appear that claims inter se between the entities within the so-called group had ever been taken into consideration. The Custodian does not appear to have preferred claims before the Special Court on behalf of the largest lender on the so-called group against those he had to recover loans. Such claims may also be preferred. The Act confers wide power upon the Custodian and the learned Special Court and in that view of the matter, having regard to the the principles of natural justice, the judgment and order of the learned Judge, Special Court should have furthermore been supported by sufficient and cogent reasons. TAX LIABILITY It is not in dispute that the tax liabilities of the Appellants individually were assessed on the basis of Best Judgment assessment. It is, furthermore not in dispute that in a large number of cases the appellate authorities have set aside Best Judgment assessments. The contention of the Appellant to the effect that the income tax dues should have been considered at the point of time when they become recoverable cannot be accepted having regard to the 3-Judge Bench decision of this Court in B.C. Dalal (supra) wherein this Court categorically held that in absence of any order of stay granted by the higher court, the liabilities would remain. We may further notice that the learned Special Court relied upon a decision in Custodian v. Union of India and Ors. [Misc. Petition No. 64 of 1998, disposed of on 17th August, 2000] wherein allegedly a dichotomy between sale and distribution was sought to be resolved in terms of the decision of this Court in Harshad Shantilal Mehta (supra), the appeal whereagainst being Civil Appeal No. 5812 of 2000 was dismissed by this Court by an order dated 4.12.2000 stating that it was in agreement with the decision of the Special Court which called for no interference. This Court, therefore, has laid down a law that mere filing of an appeal is not sufficient, particularly, when there is no order of stay on recovery has been granted and the demand is outstanding. In Kedarnath Jute Mfg. Co. Ltd. (supra), this Court has held: \"Although that liability cannot be enforced till the quantification is effected by assessment proceedings, the liability for payment of tax is independent of the assessment. It is significant that in the present case, the liability had even been quantified and a demand had been created in the sum of Rs 1,49,776 by means of the notice, dated November 21, 1957, during the pendency of the assessment proceedings before the Income Tax Officer and before the finalisation of the assessment. It is not possible to comprehend how the liability would cease to be one because the assessee had taken proceedings before higher authorities for getting it reduced or wiped out so long as the contention of the assessee did not prevail with regard to the quantum of liability etc.\" But, in this case, the orders of assessment have been set aside. If the orders of assessment have been set aside the liabilities of the Appellants have to be worked out on the basis of the new orders of assessment. So long, such orders of assessment are not passed by the competent assessing authorities, it cannot be said that the Appellants are liable to pay a huge amount by way of income tax dues on the basis of such orders of assessment which have since been set aside. A chart has been annexed to the additional written submissions filed by Mr. Desai, which originated from a letter dated 9th December, 2005 issued by the Office of the Commissioner of Income Tax showing the current status of the liabilities of the individual members of the Harshad Mehta group in the following terms: \"I) Ashwin Mehta \u0016 Rs. 1396 crores, II) Deepika Mehta \u0016 Rs. 120 crores (even after deducting the amount set aside by ITAT, it exceeds Rs. 63 crores). III) Late Harshad Mehta \u0016 Rs. 11829 crores IV) Jyoti Mehta \u0016 Rs. 1457 crores V) Hitesh Mehta \u0016 Rs. 73 crores VI) Pratima Mehta \u0016 Rs. 115 crores (even after deducting the amount set aside by ITAT it exceeds Rs. 35 crores) VII) Sudhir Mehta \u0016 Rs. 339 crores VIII) Aatur Holdings \u0016 Rs. 15.95 crores (even after deducting the amount set aside by ITAT, it exceeds Rs. 2.7 crores)\" The Custodian has further brought on records that if the transactions by or on behalf of corporate entity, viz., Aatur Holdings Pvt. Ltd. and Dr. Pratima Mehta by way of illustration are taken into consideration, the same would reveal their modus operandi to the effect that the moneys were diverted from banks and financial institutions by late Harshad Mehta which were in turn diverted to his family concerns and family members. These moneys were used for speculative transactions and securities and the profits generated was used for acquiring assets. The learned Special Court, having not arrived at such a finding, this Court is not in a position to go into the correctness or otherwise thereabout. In any view of the matter, the learned Judge, Special Court having not dealt with the question as regard the mode and manner of disbursements of the amount so far as the tax liabilities of the Appellants are concerned elaborately, the same requires fresh determination in the light of the decision of this Court in Harshad Shantilal Mehta (supra). In fact, the Appellants have brought on records various orders passed by Income Tax Appellate Authorities to show that the demands of the revenue have been set aside. Furthermore, the orders of the appellate authority have been passed during pendency of this appeal. This Court, it is trite, can take into consideration the subsequent events. Such subsequent events could also be taken into consideration for the purpose of review. In Board of Control for Cricket in India and Another v. Netaji Cricket Club and Others [(2005) 4 SCC 741], this Court held: \"It is also not correct to contend that the Court while exercising its review jurisdiction in any situation whatsoever cannot take into consideration a subsequent event. In a case of this nature when the Court accepts its own mistake in understanding the nature and purport of the undertaking given by the learned Senior Counsel appearing on behalf of the Board and its correlation with as to what transpired in the AGM of the Board held on 29-9- 2004, the subsequent event may be taken into consideration by the Court for the purpose of rectifying its own mistake.\" In view of the aforementioned pronouncement of law, we are of the opinion that it is absolutely necessary to request the learned Special Court to consider the matter afresh. SALE OF COMMERCIAL PROPERTIES Sale of commercial properties has never been seriously contested by the Appellants. In fact one of the contentions raised on behalf of the Appellants had been that if commercial properties are sold, there would be no need to sale the residential properties. This Court also in its order dated 5th May, 2004 clarified that the interim order dated 30th January, 2004 shall not be applicable as regard sale of commercial properties as even before this Court the same had not been questioned. It is, furthermore, not in dispute that third party rights have since been created by reason of sale of a large number of commercial properties. By an order dated 30th January, 2004, while admitting the appeals, this Court directed: \"The learned counsel for the Custodian brings on record the result of the bids and the order of the Special Court dated 17.12.2003 and 20.1.2004. The learned counsel for the Appellants proposes to offer his comments on the bids and the two orders of the Special Court. Let it be done within two weeks. The process of finalizing the bids according to law may be proceeded ahead by the Special Court. However, the finalization shall be subject to the result of these appeals.\" The said order, however, was modified and clarified by an order dated 5th May, 2004 that the same shall not apply to the sale of commercial properties in view of the order of the learned Judge, Special Court dated 17th October, 2003 wherein it was pointed out that the notified parties did not dispute the commercial properties being put to sale by the Custodian. In that view of the matter, evidently, creation of any third party interest is no longer in dispute nor the same is subject to any order of this Court. In any event, ordinarily, a bona fide purchaser for value in an action sale is treated differently than a decree holder purchasing such properties. In the former event, even if such a decree is set aside, the interest of the bona fide purchaser in an auction sale is saved. [See Zain-ul-Abdin Khan v. Muhammad Asghar Ali Khan - 15 IA 12]. The said decision has been affirmed by this Court in Gurjoginder Singh v. Jaswant Kaur (Smt.) and Another [(1994) 2 SCC 368]. In Janak Raj v. Gurdial Singh and Anr. [1967 (2) SCR 77], this Court confirmed a sale in favour of the Appellant therein who was a stranger to the suit being the auction purchaser of the judgment-debtor's immovable property in execution of an ex parte money decree in terms of Order XXXI Rule 92, Civil Procedure Code. Despite the fact that ordinarily a sale can be set aside only under Rules 89, 90 and 91 of Order XXXI, it was opined that the court is bound to confirm the sale and direct the grant of a certificate vesting the title in the purchaser as from the date of sale when no application in term of Rule 92 was made or when such application was made and disallowed and in support thereof Zain-ul-Abdin Khan (supra) and various other decisions were referred to. In Padanathil Ruqmini Amma v. P.K. Abdulla [(1996) 7 SCC 668], this Court making a distinction between decree-holder auction purchaser himself and a third party bona fide purchaser in an auction sale, observed : \"\u0005The ratio behind this distinction between a sale to a decree-holder and a sale to a stranger is that the court, as a matter of policy, will protect honest outsider purchasers at sales held in the execution of its decrees, although the sales may be subsequently set aside, when such purchasers are not parties to the suit. But for such protection, the properties which are sold in court auctions would not fetch a proper price and the decree- holder himself would suffer. The same consideration does not apply when the decree-holder is himself the purchaser and the decree in his favour is set aside. He is a party to the litigation and is very much aware of the vicissitudes of litigation and needs no protection. We, therefore, do not interfere with that part of the order whereby and wherewith the auction sale, as regard commercial properties, had been directed by the learned Judge, Special Court. The learned Judge, Special Court, may, therefore, proceed to pass an appropriate order as regard confirmation of the sale of such properties. RESIDENTIAL PROPERTY In these appeals, we are concerned with sale of eight residential flats in a building known as Madhuli. The flat belonging to the mother of Late Harshad Mehta has been released. The flats, however, during pendency of these appeals have been sold in auction. One of the flats being flat No. 202, Arunachal Bhawan, Barakhamba Road, is subject matter of a separate proceeding pending before this Court, viz., Civil Appeal No. 681 of 2004. In these appeals, we are not concerned with the said flat. Admittedly, the flats have been sold subject to the result of these appeals. The flats have been sold on the basis of the joint liabilities of the Appellants together with Harshad Mehta and other companies as a group. The liabilities of the Appellants, in view of our findings aforementioned, are required to be considered afresh by the learned Judge, Special Court. The purchasers have also filed applications for their impleadment in these appeals. We, however, have not heard the purchasers as the question as to whether the auction sale of the said flats will be confirmed or not will depend upon the ultimate finding of the learned Judge, Special Court upon consideration of the matter afresh in the light of the observations made hereinbefore. We, therefore, would direct that the confirmation of sale of those flats be considered and appropriate order thereupon may be passed by the learned Special Court while considering the matter afresh. In the light of the directions issued herein, it would be for the purchasers of the said flats to wait till a final decision is made or take back the amount deposited by them, subject to any other or further order (s) that may be passed by the learned Special Judge. CONCLUSION In view of our foregoing discussions, we are of the opinion that: (i) The contention of the Appellants that they being not involved in offences in transactions in securities could not have been proceeded in terms of the provisions of the Act cannot be accepted in view of the fact that they have been notified in terms thereof. (ii) The Appellants being notified persons all their personal properties stood automatically attached and any other income from such attached properties would also stand attached. The question as to whether the Appellants could have been considered to be part of Harshad Mehta Group by the learned Special Court need not be determined by us as, at present advised, in view of the fact that appropriate applications in this behalf are pending consideration before the learned Special Court. The question as regard intermingling of accounts by the Appellants, herein with that of the Harshad Mehta Group and/ or any other or further contentions raised by the parties hereto before us shall receive due consideration of the learned Judge, Special Court afresh in the light of the observations made hereinbefore. (iii) As regard the tax liabilities of the Appellants, herein, we would request the learned Judge, Special Court to consider the matter afresh in the light of the observations made hereinbefore. The learned Judge, Special Court, in this behalf, having regard to the fact that several orders of Best Judgment Assessment have been passed by the Assessing Authority, may take into consideration the ratio laid down in the decision of this Court in Harshad Shantilal Mehta (supra). (iv) The learned Special Court shall proceed to pass appropriate orders as regard confirmation of the auction sales in respect of commercial properties. (v) As regard, sale of residential properties, an appropriate order may be passed by the learned Judge, Special Court in the light of the observations made hereinbefore. (vi) We direct the Custodian to permit the Appellants to have inspection of all the documents in his power or possession in the premises of the Special Court in the presence of an officer of the court. Such documents must be placed for inspection for one week continuously upon giving due notice therefor to the Appellants jointly. As the Appellants have been represented in all the proceedings jointly, only one of them would be nominated by them to have the inspection thereof. The Appellants shall be entitled to take the help of a Chartered or Cost Accountant and may make notes therefrom for their use in the pending proceeding. (vii) The Appellants shall file their objections to the said report, if any, within ten days thereafter. The Custodian may also take assistance and/ or further assistance from a Chartered Accountant of his choice. A reply and/ or rejoinder thereto shall be filed within one week from the date of the receipt of the copy of the objection. The parties shall file their respective documents within one week thereafter. Such documents should be supported by affidavits. Both the parties shall be entitled to inspect such documents and filed their responses thereto within one week thereafter. The parties shall file the written submissions filed before this Court together with all charts before the learned Special Judge, Special Court within eight weeks from date. (viii) The learned Judge, Special Court shall allow the parties to make brief oral submissions with pointed reference to their written submissions. Such hearing in the peculiar facts and circumstances of this case should continue from day to day. (ix) The learned Judge, Special Court while hearing the matter in terms of this order shall also consider as to whether the auction sale should be confirmed or not. It will also be open to the learned Judge, Special Court to pass an interim order or orders, as it may think fit and proper, in the event any occasion arises therefor. (x) We would, however, request the learned Special Judge, Special Court to complete the hearings of the matter, keeping in view of the fact that auction sale in respect of the residential premises is being consideration, as expeditiously as possible and not later than twelve weeks from the date of the receipt of the copy of this order. Save and except for sufficient or cogent reasons, the learned Judge shall not grant any adjournment to either of the parties. (xi) The learned Judge, Special Court shall take up the matter relating to confirmation of the auction sale in respect of the commercial properties immediately and pass an appropriate order thereupon within four weeks from the date of receipt of copy of this order. If in the meanwhile orders of assessment are passed by the Income Tax Authorities, the Custodian shall be at liberty to bring the same to the notice of the learned Special Court which shall also be taken into consideration by the learned Judge, Special Court. With the aforementioned observations and directions, these appeals are allowed. The impugned judgments are set aside and the matter is remitted to the learned Judge, Special Court for consideration of the matter afresh. 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{"id": "1646640", "text": "PETITIONER: UNION OF INDIA & ANR. Vs. RESPONDENT: CYNAMIDE INDIA LTD. & ANR. DATE OF JUDGMENT10/04/1987 BENCH: REDDY, O. CHINNAPPA (J) BENCH: REDDY, O. CHINNAPPA (J) SINGH, K.N. (J) CITATION: 1987 AIR 1802 1987 SCR (2) 841 1987 SCC (2) 720 JT 1987 (2) 107 1987 SCALE (1)728 CITATOR INFO : F 1987 SC2351 (3) APL 1988 SC 686 (9) D 1988 SC1301 (8) R 1988 SC1737 (75) R 1990 SC 334 (102) E 1990 SC1277 (31,38,43) R 1990 SC1851 (30) ACT: Drugs (Prices Control) Order, 1979: Paragraphs 3, 12, 13 & 27: Bulk Drugs--Price fixation of--Whether legislative activity--Principles of natural justice whether applicable to-Cost of production-----Whether can be determined by a subordinate legislating Body--Price fixation-Review--Nature of--Formulations--Fixation of retail prices--Whether to await the result of review application. Constitution of India, Articles 32 & 226--Essential Commodities-Price fixation of---Whether matter for investi- gation and interference by Court. Practice and Procedure: Essential Commodities--Price fixation of--Interim order staying implementation of notifi- cation fixing prices--Courts not to pass orders which would be against public interest. Constitution of India, Article 39(b)--Material resources of the community--Distribution of to sub-serve common good--Obligations of State. HELD: Paragraph 3 of the Drugs (Prices Control) Order, 1979 made by the Central Government in exercise of powers under s. 3(2)(c) of the Essential Commodities. Act, 1955 empowers the Government, after making such enquiry as it deems fit, to fix the maximum price at which the indigenously manufac- tured bulk drug shall be sold. Clause (2) of Paragraph 3 provides that while so fixing the price of a bulk drug, the Government may take into account the average cost of produc- tion of such bulk drug manufactured by a efficient manufac- turer and allow a reasonable return on net worth. Paragraph 12 empowers the Government to fix leader prices of formula- tions of categories I and II, while paragraph 13 empowers the Government to fix retail prices of formulations of category III. Paragraph 27 enables any person aggrieved by any notification or order under the various paragraphs aforesaid to appeal to the Government for a review. The Central Government issued notifications under paragraph 3 842 of the 1979 Order fixing the maximum prices at which various indigenously manufactured bulk drugs could be sold. The manufacturers first filed review applications under para- graph 27 of the Order and thereafter writ petitions under Art. 226 of the Constitution challenging the notifications. The High Court quashed those notifications on the ground of failure to observe the principles of natural justice. Since prices of formulations are primarily dependent on prices of bulk drugs, the notifications fixing the retail prices of formulations issued during the pendency of review petitions were also quashed. In the appeal by the Union of India, it was contended that the fixation of maximum price under paragraph 3 of the Order was a legislative activity and, therefore, not subject to any principle of natural justice, that paragraph 27 of the Order gave a remedy to the manufacturers to seek a review of the order fixing the maximum price under paragraph 3, that such review did not partake the character of a judicial or quasi,judicial proceedings, and that at the time of the hearing of the review application the matter under- went thorough and detailed discussion between the parties and the Government as well as the Bureau of Industrial Costs and Prices, and that the prices had not been fixed in an arbitrary manner. For the respondents, it was contended that unlike other price control legislations, the Drugs (Prices Control) Order was designed to induce better production by providing for a fair return to the manufacturers; that the provision for an enquiry proceeding the determination of the price of a bulk drug, the prescription in paragraph 3, clause 2 that the average cast of production of the bulk drug manufactured by an efficient manufacturer should be taken into account and that a reasonable return on net worth should be allowed, and the provision for a review of the order determining the price, established that price fixation under the Order was a quasi-judicial activity obliging the observance of the rules of natural justice; that the review, for which provision is made by paragraph 27, was certainly of quasi-judicial char- acter and, therefore, it was necessary that the manufactur- ers should be informed of the basis for the fixation of the price, that the price had been fixed in an arbitrary manner and the Government was not willing to disclose the basis on which the prices were fixed on the pretext that it may involve disclosure of matters of confidential nature; that since the price of formulations were dependent on the prices of bulk drugs, these should not have been prescribed until the review application was disposed of, that the undertaking given by the parties before the High Court while obtaining ex-parte interim order to main- 843 tain the stanus-quo on the prices of bulk drugs and formula- tions prevailing before the issue of notifications, and in case of dismissal of their petitions to deposit the differ- ence in the prices of the formulations in the Court, lapsed with the disposal of the writ petition and it could no longer be enforced; and that the delay in filing special leave petitions against other manufacturers should not be condoned as the Government was well versed litigant as compared to private litigants. Allowing the appeal, the Court, HELD: 1. Price fixation is neither the function nor the forte of the Court. The Court is concerned neither with the policy nor with the rates. But it has jurisdiction to en- quire into the question, in appropriate proceedings, whether relevant considerations have gone in and irrelevant consid- erations kept out of the determination of the price. For example, if the legislature has decreed the pricing policy and prescribed the factors which should guide the determina- tion of the price, the Court will, if necessary, enquire into the question whether the policy and factors were present to the mind of the authorities specifying the price. Its examination would stop there. The mechanics of price fixation are not concern of the executive. The Court will not revaluate the considerations even if the prices were demonstrably injurious to some manufacturers or producers. It will, of course, examine if there was any hostile dis- crimination. [852E-H] Secretary of Agriculture v. Central Reig Refining Compa- ny, 338 604; Prag Ice & Oils Mills v. Union of India, [1978] 3 SCC 459 and Welcom Hotel v. State of Andhra Pradesh, [1983] 4 SCC 575, referred to. 2. Profiteering, by itself, is evil. Profiteering in the scarce resources of the community, much needed life-sustain- ing food stuffs and fife saving drugs is diabolic. It is a menace which has to be lettered and curbed. The Essential Commodities Act, 1955 is a legislation towards that end, in keeping with the duty of the State enshrined in Art. 39(b) of the Constitution towards securing that the ownership and control of the material resources of the community are so distributed as best to subserve the common good. [851E-F] The right of the citizen to obtain essential articles at fair prices and duty of the State to provide them are thus transformed into the power of the State to fix prices and obligation of the producer to charge no more than the price fixed. [854F] 844 Shree Meenakshi Mills Ltd. v. Union of India, [1974] 1 SCC 468; Hari Shankar Bagla v. State of Madhya Pradesh, [1955] 1 SCR 380; Union of India v. Bhanamal Gulzarimal, [1960] 2 SCR 627; Sri Krishna Rice Mills v. Joint Director (Food), (unreported), State of Rajasthan v. Nathmal and Mithamal, [1954] SCR 982; Narendra Kumar v. Union of India, [1960] 2 SCR 375, Panipat Co-operative Sugar Mills v. Union of India, [1973] 1 SCC 129; Anakapalle Co-operative Agricul- tural and Industrial Society Ltd. v. Union of India, [1973] 3 SCC 435 and Premier Automobiles Ltd. v. Union of India, [1972] 2 SCR 526, referred to. 3.1 A price fixation measure does not concern itself with the interests of an individual manufacturer or produc- er. It is generally in relation to a particular commodity or class of commodities or transactions. It is a direction of a general character not directed against a particular situa- tion. It is intended to operate in future. It is conceived in the interest of the general consumer public. [854E-F] 3.2 Price fixation is more in the nature of a legisla- tive activity than administrative. A legislative act is the creation and promulgation of a general rule of conduct without reference to particular cases; an administrative act is the making and issue of a specific direction or the application of a general rule to a particular case in ac- cordance with the requirements of policy. Legislation is the process of formulating a general rule of conduct without reference to particular cases and usually operating in future; administration is the process of performing particu- lar acts, of issuing particular orders or of making deci- sions which apply general rules to particular cases. [853F- H; 854A] Secretary of Agriculture v. Central Reig Refining Compa- ny, 338 US 604, and Saraswati Industrial Syndicate Ltd. v. Union of India, [1974] 2 SCC 630, referred to. 3.3.1 Price fixation may occasionally assume an adminis- trative or quasi-judicial character when it relates to acquisition or requisition of goods or property from indi- viduals and it becomes necessary to fix the price separately in relation to such individuals. Such situations may arise when the owner of property or goods is compelled to sell his property or goods to the Government or its nominee and the price to be paid is directed by the legislature to be deter- mined according to the statutory guidelines laid down by it. In such situations the determination of price may acquire a quasi-judicial character. [854G-H; 855A] 3.3.2 Section 3(2)(f) of the Essential Commodities Act enables the 845 Central Government to make an order requiring any person engaged in the production of any essential commodity to sell the whole or a specific part of the quantity produced by him to the Government or its nominee. Section 3(3)(C) provides for the determination of the price to be paid to such a person. If the provisions of s. 3(2)(c), under which the price of an essential commodity may be controlled, are contrasted with s. 3(3)(C) under which payment is to be made for a commodity required to be sold by an individual to the Government, the distinction between a legislative act and a non-legislative act will at once become clear. The order made under s. 3(3)(c), which is not in respect of a single transaction, nor directed to a particular individual, is clearly a legislative act, while an order made under s. 3(3)(C), which is in respect of a particular transaction of compulsory sale from a specific individual, is a nonlegisla- tive act. [860B-H; 861A-B] 3.3 The order made under s. 3(2)(c) controlling the price of an essential commodity may itself prescribe the manner in which price is to be fixed but that will not make the fixation of price a non-legislative activity, when the activity is not directed towards a single individual or transaction but is of a general nature, covering all indi- viduals and all transactions. The legislative character of the activity is not shed and an administrative. or quasi- judicial character acquired merely because guidelines pre- scribed by the statutory order have to be taken into ac- count. [861B-C] 3.4 Legislative action, plenary or subordinate, is not subject to rules of natural justice. In the case of Parlia- mentary legislation, the proposition is self evident. In the case of subordinate legislation, it may happen that Parlia- ment may itself provide for a notice and for a hearing, in which case the substantial non-observance of the statutorily prescribed mode of observing natural justice may have the effect of invalidating the subordinate legislation. But where the legislature has not chosen to provide for any notice or hearing, no one can insist upon it and it will not be permissible to read natural justice into such legislative activity. [852H; 853A-C] New India Sugar Works v. State of Uttar Pradesh, [1981] 2 SCC 293; Laxmi Khandsari v. State of Uttar Pradesh, [1981] 2 SCC 600; Ramesh Chandra Kachardas Porwal v. State of Maharashtra, [1981] 2 SCC 722; Bates v. Lord Hailsha, of St. Marylebone, [1972] 1 WLR 1973; Edinburgh and Dalkeith Rv. v. Wauchope Per Lord Brougham, [1842] 8 CI & F 700, 720; Brit- ish Railways Board v. Pickin, [1974] 1 All ER 609, Sarkar Sasta Anaj Vikreta Sangh v. State of Madhya Pradesh, 846 [1981] 4 SCC 471 and Tharoo Mal v. Puranchand, [1978] 1 SCC 102, referred to. 3.5 Nothing in the scheme of the Drugs (Prices Control) Order, 1979 leads to the inference that price fixation under that Order is not a legislative activity but a quasi-judi- cial activity which would attract the observance of the principles of natural justice. Nor is there anything in the scheme or the provisions of that Order which otherwise contemplates the observance of any principle of natural justice or kindred rule, the non-observance of which would give rise to a cause of action to a suitor. [871G-H; 872A-B] 4.1 Occasionally the legislature directs the subordinate legislating body to make 'such enquiry as it think fit' before making the subordinate legislation. In such a situa- tion, while such enquiry by the subordinate legislating body as it deems fit is a condition precedent to the subordinate legislation, the nature and the extent of the enquiry is in the discretion of the subordinate legislating body and the subordinate legislation is not open to question on the ground that the enquiry was not as fur as it might have been. The provision for such an enquiry is generally an enabling provision, intended to facilitate the subordinate legislating body to obtain relevant information' from all and whatever source considered necessary. It is the sort of enquiry which the legislature itself my cause to he made before legislating, an enquiry which will not confer any right an anyone other than the enquiring body. It is differ- ent from an enquiry in which an opportunity is required to he given to persons likely to he affected. The former is an enquiry leading to a legislative activity while the latter is an enquiry which ends in an administrative or quasi- judicial decision. [853D-F] 4.2 In the present case, paragraph 3 of the Drugs (Prices Control) Order, 1979 is an enabling provision. \"Such an enquiry as it thinks fit\" contemplated by it is an en- quiry of the former character to he made for the purposes of fixing the maximum price at which a bulk drug may he sold, with a view to regulating its equitable distribution and making it available at a fair price for the benefit of the ultimate consumer in consonance with Art. 39(b) of the Constitution. It is primarily from the consumer public's point of view that the Government is expected to make its enquiry. The need of the consumer public is to he ascer- tained and making the drug available to them at a fair price is its ultimate aim. The enquiry is to he made from that angle and directed towards that end. Information may he gathered from whatever source considered desirable by the Government. [872B-E] 847 4.3 In fixing the price of a bulk drug, the Government is expressly required by the Order to take into account the average cost of production of such bulk drug manufactured by 'an efficient manufacturer' and allow a reasonable return on 'net worth'. For this purpose too, the Government may gather information from any source including the manufacturers. Here again the enquiry by the Government need not be re- stricted to 'an efficient manufacturer' or some manufactur- ers; nor need it be extended to all manufacturers. What is necessary is that the average cost of production, by 'an efficient manufacturer' must be ascertained and a reasonable return allowed on 'net worth'. Being a subordinate or dele- gated legislative activity, the enquiry must necessarily comply with the statutory conditions, if any, no more and no less, and no implications of natural justice can be read into it unless it is a statutory condition. [866B-D] 5.1 The review provided by paragraph 27 of the Order, of the order made under paragraph 3 fixing maximum price of indigenously manufactured drugs, and under paragraphs 12 and 13 fixing leader and retail prices of formulations, is akin to a post-decisional hearing which is sometimes afforded after the making of some administrative orders, but not truly so. It is a curious amalgam of a hearing which occa- sianally precedes a subordinate legislative activity such as the fixing of municipal rates etc. and a post decisional hearing after the making of an administrative or quasi- judicial order. it is a hearing which follows a subordinate 'legislative activity intended to provide an opportunity to affected persons such as the manufacturers, the industry and the consumer public to bring to the notice of the subordi- nate legislating body the difficulties or problems experi- enced or likely to he experienced by them consequent on the price fixation, whereupon the Government may make appropri- ate orders. More precisely it is a review of subordinate legislation by a legislating body at the instance of an aggrieved person. [873B; 874C-D] 5.2 The reviewing authority has the fullest freedom and discretion under paragraph 27 of the Order to prescribe its own procedure and consider the matter brought before it so long as it does not travel beyond the parameters prescribed by paragraph 3 in the case of a review against an order made under that paragraph and the respective other paragraphs in the case of other orders. But whatever procedure is adopted, it must be a procedure tuned to the situation. [873H; 874A- B] Vrajlal Manilal & Co. v. Union of India & Anr., [1964] 7 SCR 97; Shivaji Nathubhai v. Union of India & Ors., [1960] 2 SCR 775; Maneka Gandhi v. Union of India,[1978] 2 SCR 621; Swadeshi Cotton Mills v. 848 Union of India, [1981] 2 SCR 533 and Liberty Oil Mills v. Union of India, [1984] 3 SCR 676, distinguished. 6.1 So long as the method prescribed and adopted by the subordinate legislating body in arriving at the cost of production of bulk drugs was not arbitrary and opposed to the principal statutory provisions, it could not legitimate- ly be questioned. [878F] 6.2 It is open to the subordinate legislating body to prescribe and adopt its own mode of ascertaining the cost of production and the items to be included and excluded in so doing. Such a body is under no obligation to follow the method adopted by the Income-tax authorities in allowing expenses for the purpose of ascertaining income and assess- ing it. There may be many items of business expenditure which may be allowed by Income-tax authorities as legitimate expenses but which can never enter the cost of production. It is open to such an authority to adopt a rough and read but otherwise not unreasonable formula rather than a need- lessly intricate so-called scientific formula. [878D-H] It could not therefore, be said in the instant case, that the subordinate legislating authority acted unreasona- bly in prescribing the norms in the manner it has done. 7.1 From the legislative nature of the activity of the Government, it is clear that it is under no obligation to make any disclosure of any information received and consid- ered by it in making the order but in order to render effec- tive the right to seek a review given to an aggrieved per- son, the Government, if so requested by the aggrieved manu- facturer, is under an obligation to disclose any relevant information which may reasonably be disclosed pertaining to 'the average cost of production of the bulk drug manufac- tured by an efficient manufacturer' and 'the reasonable return on net worth'. [874C-E] 7.2 In the instant case, the procedure followed by the Government in furnishing the requisite particulars at the time of the hearing of the review applications and discuss- ing across the table the various items that hod been taken into account was sufficient compliance with the demands of fair play in the case of the class of persons claiming to by affected by the fixation of maximum price under the Drugs (Prices Control) Order. It cannot, therefore, be said that there was anything unfair in the procedure adopted by the Government. [876D-E] 8. This Court cannot constitute itself into a court of appeal over 859 the Government in the matter of price fixation. The ques- tions that obsolete quantitative usages had been taken into consideration, proximate cost data had been ignored, and the data relating to the year ending November 1976 had been adopted as the basis; that there were errors in totalling, errors in the calculation of prices of utilities, errors in the calculation of 'net worth' and many other similar er- rors, were questions to be raised before the Government in the review application under paragraph 27. [877A-C] 9.1 It is the necessary duty of the Government to pro- ceed to fix the retail price of a formulation as soon as the price of the parent bulk drug is fixed. Though the price fixation of formulations is dependent on the price of the bulk drug, it is not to await the result of a review appli- cation which in the end may turn out to be entirely without substance. In view of the public interest, therefore, it is necessary that the price of formulation should be fixed close on the heels of the fixation of bulk drug price. [879D-E; G] 9.2 The ups and downs of commerce are inevitable it is not possible to devise a fool proof system to take care of every possible defect and objection. It is certainly not a matter at which the court could take a hand. All that court may do is to direct the Government to dispose of the review application expeditiously according to a time bound pro- gramme. [879F-G] 10. Though the price of a bulk drug is dependent on innumerable variables, it does not follow that the notifica- tion fixing the maximum price must necessarily be struck down as obsolete by the mere passage of time. The applica- tions for review must be dealt with expeditiously and when- ever they are not so dealt with, the aggrieved person may seek a mandamus from the court to direct the Government to deal with the review application within a time frame-work. [880B-C] 11. Where prices of essential commodities are fixed in order to maintain or increase their supply or for securing their equitable distribution and availability at fair prices, the court should not make any interim order staying the implementation of the notification fixing the prices. Such orders are against the public interest and ought not to be made by a court unless it is satisfied that no public interest is going to suffer. In matters of fixation of price, it is the interest of the consumer public that must come first and any interim order must take care of that interest. [880D-F] 850 In the instant case, the order made by the High Court has the manufacturers on terms, but the consumer public has been left high and dry. [881D] 12. Apart from the fact that an appeal is ordinarily considered to be a continuation of the original proceeding, in the present case, further orders of the Supreme Court were also in contemplation and such further orders could only be made if appeals were preferred to the Supreme Court. There was no doubt in anyone's mind that the matter would be taken up in appeal to the Supreme Court whichever way the writ petitions were decided. The undertakings given by the parties in the present cases, were thus intended to and do continue to subsist. [881E-F] [The Government is directed to dispose of the review applications after giving notice of hearing to the manufac- turer. The hearing to be given within two months and the review applications disposed of within two weeks after the conclusion of the hearing.] JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1603 of 1985 etc. From the Judgment and Order dated 17.12.1984 of the Delhi High Court in C.W.P. No. 820 of 1981. G. Ramaswamy, Additional Solicitor General G. Subramani- um, C.V. Subba Rao and A. Subba Rao for the Appellants. A.B. Diwan, S.I. Thakar, D.D. Udeshi, H.S. Merchant, Ravinder Narain, Mrs. A.K. Verma and D.N. Mishra for the Respondents. The Judgment of the Court was delivered by CHINNAPPA REDDY, J. It was just the other day that our brothers Ranganath Misra and M.M. Dutt, JJ. had to give directions in a case (Vincent Panikurbangara v. Union of India) where a public spirited litigant had complained about the unscrupulous exploitation of the Indian Drug and Pharma- ceutical Market by multinational Corporations by putting in circulation low-quality and even deleterious drugs. In this group of cases we are faced with a different problem of alleged exploitation by big manufacturers of bulk drugs. The problem is that of high prices, bearing, it is said, little relation to the cost of production to the manufacturers. By way of illustration, we may straightaway mention a glaring instance of such high-pricing which was brought to our notice at the very commencement of the hear- ing. 'Barlagan Ketone', a bulk drug, was not treated as an essential bulk drug under the Drugs (Prices Control) Order, 1970 and was not included in the schedule to that order. A manufacturer was, under the provisions of that Order, free to continue to sell the drug at the price reported by him to the Central Government at the time of the commencement of the order, but was under an obligation not to increase the price without the prior approval of the Central Government. The price which the manufacturer of Barlagan Kotone, report- ed to the Central Government in 1971 was Rs.24,735.68 per Kg. After the 1979 Drugs (Prices Control) Order came into force, the distinction between essential and non-essential bulk drugs was abolished and a maximum price had to be fixed for Barlagan Ketone also like other bulk drugs. The manufac- turer applied for fixation of price at Rs.8,500 per Kg. The Government, however, fixed the price at Rs.1,810 per Kg. For the moment, ignoring the price fixed by the Government, we see that the price of Rs.24,735 per Kg. at which the manu- facturer was previously selling the drug and at which he continues to market the drug to this day because of the quashing of the order fixing the price by the High Court, is so unconsciously high even compared with the price claimed by himself that it appears to justify the charge that some manufacturers do indulge in 'profiteering'. Profiteering, by itself, is evil. Profiteering in the scarce resources of the community, much needed life-sustain- ing food-stuffs and lifesaving drugs is diabolic. It is a menance which had to be lettered and curbed. One of the principal objectives of the Essential Commodities Act, 1955 is precisely that. It must be remembered that Art. 39(b) enjoins a duty on the State towards securing 'that the ownership and control of the material resources of the community are so distributed as best to subserve the common good'. The Essential Commodities Act is a legislation to- wards that end. Section 3(1) of the Essential Commodities Act enables the Central Government, if it is of opinion 'that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair price', to 'provide for regulating or prohibiting by order, the production, supply and distribution thereof and trade and commerce therein'. In particular, s. 3(2)(c) enables the Central Government, to make an order providing for controlling the price at which any essential commodity may be bought or sold. It is in pursuance of the powers granted to the Central Government by the Essential Commodi- ties Act that first the Drugs (Prices Control) Order, 1970 and later the Drugs (Prices Control) Order, 1979 were made. Armed with authority under the Drugs (Prices Control) Order, 1979 the Central Government issued notifications fixing the maximum prices at which various indigenously manufactured bulk drugs may be sold by the manufacturers. These notifica- tions were questioned on several grounds by the manufactur- ers and they have been quashed by the Delhi High Court on the ground of failure to observe the principles of natural justice. Since prices of 'formulations' are primarily de- pendent on prices of 'buli drugs', the notifications fixing the retail prices of formulations were also quashed. The manufacturers had also filed review petitions before the Government under paragraph 27 of the 1979 Order. The review petitions could not survive after the notifications sought to be reviewed had themselves been quashed. Nevertheless the High Court gave detailed directions regarding the manner of disposal of the review petitions by the High Court. The Union of India has preferred these appeals by Special leave of this Court against the judgment of the High Court. The case for the Union of India was presented to us ably by Shri G. Ramaswami, the learned Additional Solicitor General and the manufacturers were represented equally ably by Shri Anil Diwan. Before we turn to the terms of the Drugs (Prices Con- trol) Order, 1979 we would like to make certain general observations and explain the legal position in regard to them. We start with the observation, 'Price-fixation is nei- ther the function nor the forte of the Court'. We concern ourselves neither with the policy nor with the rates. But we do not totally deny ourselves the jurisdiction to enquire into the question, in appropriate proceedings, whether relevant considerations have gone in and irrelevant consid- erations kept out of the determination of the price. For example, if the Legislature has decreed the pricing policy and prescribed the factors which should guide the determina- tion of the price, we will, if necessary, enquire into the question whether the policy and the factors are present to the mind of the authorities specifying the price. But our examination will stop there. We will go no further. We will not deluge ourselves with more facts and figures. The assem- bling of the raw materials and the mechanics of price fixa- tion are the concern of the executive and we leave it to them. And, we will not revaluate the considerations even if the prices are demonstrably injurious to some manufacturers or producers. The Court will, of course, examine if there is any hostile discrimination. That is a different 'cup of tea' altogether. The second observation we wish to make is, legislative action, plenary or subordinate, is not subject to rules of natural justice. In the case of Parliamentary legislation, the proposition is self-evident. In the case of subordinate 'legislation, it may happen that Parliament may itself provide for a notice and for a hearing-there are several instances of the legislature requiring the subordinate legislating authority to give public notice and a public hearing before say, for example, levying a municipal rate--,in which case the substantial non-observance of the statutorily prescribed mode of observing natural justice may have the effect of invalidating the subordinate legislation. The right here given to rate payers or others is in the nature of a concession which is not to detract from the character of the activity as legislative and not quasijudi- cial. But, where the legislature has not chosen to provide for any notice or hearing, no one can insist upon it and it will not be permissible to read natural justice into such legislative activity. Occasionally, the legislature directs the subordinate legislating body to make 'such enquiry as it thinks fit' before making the subordinate legislation. In such a situa- tion, while such enquiry by the subordinate legislating body as it deems fit is a condition precedent to the subordinate legislation, the nature and the extent of the enquiry is in the discretion of the subordinate legislating body and the subordinate legislation is not open to question on the ground that the enquiry was not as full as it might have been. The provision for 'such enquiry as it thinks fit' is generally an enabling provision, intended to facilitate the subordinate legislating body to obtain relevant information from all and whatever source and not intended to vest any right in any one other than the subordinate-legislating body. It is the sort of enquiry which the legislature itself may cause to be made before legislating, an enquiry which will not confer any right on anyone. The third observation we wish to make is, price fixation is more in the nature of a legislative activity than any other. It is true that, with the proliferation of delegated legislation, there is a tendency for the line between legis- lation and administration to vanish into an illusion. Admin- istrative, quasi-judicial decisions tend to merge in legis- lative activity and, conversely, legislative activity tends to fade into and present an appearance of an administrative or quasi-judicial activity. Any attempt to draw a distinct line between legislative and administrative functions, it has been said, is 'difficult in theory and impossible in practice'. Though difficult, it is necessary that the line must sometimes be drawn as different legal fights and conse- quences may ensue. The distinction between the two has usually been expressed as 'one between the general and the particular'. 'A legislative act is the creation and promulgation of a general rule of conduct without refer- ence to particular cases; an administrative act is the making and issue of a specific direction or the application of a general rule to a particular case in accordance with the requirements of policy'. 'Legislation is the process of formulating a general rule of conduct without reference to particular cases and usually operating in future; adminis- tration is the process of performing particular acts, of issuing particular orders or of making decisions which apply general rules to particular cases.' It has also been said \"Rule making is normally directed toward the formulation of requirements having a general application to all members of a broadly identifiable class\" while, \"an adjudication, on the other hand, applies to specific individuals or situa- tions\". But, this is only a bread distinction, not neces- sarily always true. Administration and administrative adju- dication may also be of general application and there may be legislation of particular application only. That is not ruled out. Again, adjudication determines past and present facts and declares rights and liabilities while legislation indicates the future course of action. Adjudication is determinative of the past and the present while legislation is indicative of the future. The object of the rule, the reach of its application, the rights and obligations arising out of it, its intended effect on past, present and future events, its form, the manner of its promulgation are some factors which may help in drawing the line between legisla- tive and non-legislative acts. A price fixation measure does not concern itself with the interests of an individual manufacturer or producer. It is generally in relation to a particular commodity or class of commodities or transac- tions. It is a direction of a general character, not direct- ed against a particular situation. It is intended to operate in the future. It is conceived in the interests of the general consumer public. The right of the citizen to obtain essential articles at fair prices and the duty of the State to so provide them are transformed into the power of the State to fix prices and the obligation of the producer to charge n6 more than the price fixed. Viewed from whatever angle, the angle of general application the prospectivity of its effect, the public interest served, and the rights and obligations flowing therefrom, there can be no question that price fixation is ordinarily a legislative activity. Price- fixation may occasionally assume an administrative or quasi-judicial character when it relates to acquisition or requisition of goods or property from individuals and it becomes necessary to fix the price separately in relation to such individuals. Such situations may arise when the owner of property or goods is compelled to sell his property or goods to the Government or its nominee and the price to be paid is directed by the legislature to be determined accord- ing to the statutory guidelines laid down by it. In such situations the determination of price may acquire aquasi-judicial character. Otherwise, price fixation is generally a legislative activity. We also wish to clear a misapprehension which appears to prevail in certain circles that price-fixation affects the manufacturer or producer primarily and therefore fairness requires that he be given an opportunity and that fair opportunity to the manufacturer or producer must be read into the procedure for price-fixa- tion. We do not agree with the basic premise that price fixation primarily affects manufacturers and producers. Those who are most vitally affected are the consumer public. It is for their protection that price-fixation is resorted to and any increase in price affects them as seriously as any decrease does a manufacturer, if not more. The three observations made by us are well-settled and wellfounded on authority. The cases to which we shall now refer, will perhaps elucidate what we have tried, unfelici- tously, to express. In Shree Meenakshi Mills Ltd. v. Union of India, [1974] 1 SCC 468 a notification fixing the ex-factory price of certain counts of cotton yarn was questioned on the ground that the price had been arbitrarily fixed. After referring to Hari Shanker Bagla v. State of Madhya Pradesh, [1955] 1 SCR 380; Union of India v. Bhanamal Gulzarimal, [1960] 2 SCR 627; Sri Krishna Rice Mills v. Joint Director (Food), (unreported); State of Rajasthan v. Nathmal and Mithamal, [1954] SCR 982; Narendra Kumar v. Union of India, [1960] 2 SCR 375; Panipat Co-operative Sugar Mills v. Union of India, [1973] 1 SCC 129; Anakapalle Co-operative Agricultural & Industrial Society Ltd. v. Union of India, [1973] 3 SCC 435 and Premier Automobiles Ltd. v. Union of India, [1972] 2 SCR 526 a constitution bench of the court observed that the dominant object and the purpose of the legislation was the equitable distribution and availability of commodities at fair price and if profit and the producer's return were to be kept in the forefront, it would result in losing sight of the object and the purpose of the-legislation. If the prices of yarn or cloth were fixed in such a way to enable the manufacturer or producer recover his cost of production and secure a reasonable margin of profit, no aspect of infringe- ment of any fundamental right could be said to arise. It was to be remembered that the mere fact that some of those were engaged in the industry, trade or commerce alleged'that they were incurring loss would not render the law stipulating the price unreasonable. It was observed, \"The control of prices may have effect either on maintaining or ,increasing supply of com- modity or securing equit- able distribution and availability at fair prices. The controlled price has to retain this equilibrium in the supply and demand of the commodity. The cost of production, a reasonable return to the producer of the commodity are to be taken into account. The producer must have an incentive to produce. The fair price must be fair not only from the point of view of the consumer but also from the point of view of the producer. In fixing the prices, a price line has to be held in order to give preference or pre-dominant consideration to the interest of the consumer or the general public over that of the produc- ers in respect of essential commodities. The aspect of ensuring availability of the essen- tial commodities to the consumer equitably and at fair price is the most important considera- tion. The producer should not be driven out of his producing business. He may have to bear loss in the same way as he does when he suf- fers losses on account of economic forces operating in the business. If an essential commodity is in short supply or there is hoarding, concerning or there is unusual demand, there is abnormal increase in price. If price increases, it becomes injurious to the consumer. There is no justification that the producer should be given the benefit of price increase attributable to hoarding or cornering or artificial short supply. In such a case, if an \"escalation\" in price is contem- plated at intervals, the object of controlled price may be stultified. The controlled price will enable both the consumer and the producer to tide over difficulties. therefore, any restriction in excess of what would be neces- sary in the interest of general public or to remedy the evil has to be very carefully considered so that the producer does not perish and the consumer is not crippled.\" The cases of Panipat Sugar Mills and Anakapalle Co-operative Agricultural Society were distinguished on the ground that they were governed by sub-section (3C) of sec. 3 of the Essential Commodities Act and therefore, had no relevance to the case before the Constitution Bench. The case of Premier Automobiles was distinguished on the ground that the deci- sion was rendered by invitation and on the agreement of the parties irrespective of technical and legal questions. The Court quoted with approval a passage from Secretary of Agriculture v. Central Reig Refining Company, 330 US 604, stating, \"Suffice it to say that since Congress fixed the quotas on a historical basis it is not for this Court to reweigh the relevant factors and, per chance, substitute its notion of expediency and fairness for that of Congress. This is so even though the quota thus fixed may demonstrably be disadvantageous to certain areas or persons. This Court is not a tribunal for relief from the crudities and inequities of complicated experimental economic legisla- tion \". In Saraswati Industrial Syndicate Ltd. v. Union of India, [1974] 2 SCC 630; the Court observed, \"Price-fixation is more in the nature of a legislative measure even though it may be based upon objective criteria found in a report or other material. It could not, there- fore, give rise to a complaint that a rule of natural justice has not been followed in fixing the price. Nevertheless, the criterion adopted must be reasonable. Reasonableness, for purposes of judging whether there was an \"excess of power\" or an \"arbitrary\" exercise of it, is really the demonstration of a rea- sonable nexus between the matters which are taken into account in exercising a power and the purposes of exercise of that power.\" It was also reiterated that the decision in Shree Meenakshi Mills' case was based on a special agreement between the parties and therefore, had no relevance to the question before them. In Prag Ice & Oil Mills v. Union of India, [1978] 3 SCC 459 a Constitution Bench of seven judges of this court had to consider the validity of the Mustard Oil (Price Control) Order, 1977, an Order made in exercise of the powers con- ferred upon Central Government by the Essential Commodities Act. Chandrachud, J. speaking for the court approved the observation of Beg, CJ. in Saraswati Industrial Syndicate that it was enough compliance with the Constitutional man- date if the basis adopted for price fixation was not shown to be so patently unreasonable as to be in excess of the power to fix the price. He observed \"In the ultimate analysis the mechanics of price fixation has necessarily to be left to the judgment of the Executive and unless it is patent that there is hostiled discrimination against a class of operators, the processual basis of price fixation has to be accepted in the generality of cases as valid.\" Referring to Shri Meenakshi Mills, the learned CJ. reaf- firmed the approval accorded to the statement in Secretary of Agriculture v. Central Reig Refining Company (supra) that Courts of Law could not be converted into tribunals for relief from the crudities and inequities of complicated experimental economic legislation. Panipat Sugar and Anakap- palle Society were again referred to and it was pointed out that those cases turned on the language of s. 3(3C) of the Essential Commodities Act. Premier Automobiles was consid- ered and it was affirmed that the judgment in that case could not be treated as precedent and could not afford any appreciable assistance in the decision of price fixation cases as it proceeded partly on agreement between the par- ties and partly on concessions made at the bar. Beg, CJ. who delivered a separate opinion for himself and for Desai, J. agreed that the judgment in Premier Automobiles was not to provide a precedent in price fixation case. He also reaf- firmed the proposition that price fixation was in the nature of a legislative measure and could not give rise to a com- plaint that natural justice was not observed. He indicated the indicia which led him to the conclusion that price fixation was a legislative measure. He observed: \"We think that unless, by the terms of a 'particular statute, or order, price fixation is made a quasi-judicial function for speci- fied purposes or cases, it is really legisla- tive in character in the type of control order which is now before us because it satisfies the tests of legislation. A legislative meas- ure does not concern itself with the facts of an individual case. It is meant to lay down a general rule applicable to all persons or objects or transactions of a particular kind or class. In the case before us, the Control Order applies to sales of mustard oil anywhere in India by any dealer. Its validity does not depend on the observance of any procedure to be complied with or particular types of evi- dence to be taken on any specified matters as conditions precedent to its validity. The test of validity is constituted by the nexus shown between the order passed and the purposes for which it can be passed, or in other words by reasonableness judged by possible or probable consequences.\" In New India Sugar Works v. State of Uttar Pradesh, [1981] 2 SCC 293 there was an indication though it was not expressly so stated that the question of observing natural justice did not arise in cases of price fixation. In Laxmi Khandsari v. State of Uttar Pradesh, [1981] 2 SCC 600 it was held that the Sugar Cane Control Order, 1966 was a legislative measure and therefore, rules of natural justice were not attracted. In Rameshchandra Kachardas Porwal v. State of Maharashtra, [1981] 2 SCC 722 it was observed that legislative activity did not invite natural justice and that making of a declara- tion that a certain place shall be a principal market yard for a market area under the relevant Agricultural Produce Markets Acts was an act legislative in character. The obser- vation of Magarry, J. in Bates v. Lord Hailsha, of St. Marylebone [1972] 1 WLR 1973 that the rules of natural justice do not run in the sphere of legislation, primary or delegated, was cited with approval and two well known text books writers Paul Kackson and Wades H.W.R. were also quot- ed. The former had said, \"There is no doubt that a minister, or any other body, in making legislation, for example, by statutory instrument or by law, is not subject to the rules of natural justice--Bates v. Lord Hailsham of St. Marylebone (supra)--any more than is Parliament itself; Edinburgh and Dalkeith Rv. v. Wauchope per Lord Brougham, [1842] 8 CL & F 700, 720; British Railways Board v. Pickin, [1974] 1 All ER 609. The latter had said, \"There is no right to be heard before the making of legislation, whether primary or dele- gated, unless it is provided by statutes.\" In Sarkari Sasta Anaj Vikreta Sangh v. State of Madhya Pradesh, [1981] 4 SCC 471; it was pointed out that the amendment of the Madhya Pradesh Food Stuffs Distribution Control Order was a legis- lative function and there was, therefore, no question of affording an opportunity to those who were to be affected by it. In Welcom Hotel v. State of Andhra Pradesh, [1983] 4 SCC 575 the observations of Chandrachud, CJ. in Prag Ice and Oil Mills were quoted with approval in connection with the fixation of prices of food stuffs served in restaurants. In Tharoe Mal v. Puranchand, [1978] 1 SCC 102 one of the questions was regarding the nature of the hearing to be given before imposing municipal taxes under the Uttar Pra- desh Municipalities Act, 1916. It was held, \" ....... the procedure for the imposition of the tax is legislative and not quasi- judicial ...... The right to object, howev- er, seems to be given at the stage of propos- als of the tax only as a concession to re- quirements of fairness even though the procedure is legisla- tive and not quasi-judicial.\" We mentioned that the Panipat and the Anakapalle eases were distinguished in Shree Meenakshi, and Prag Ice. Pani- pat and Anakapalle were both cases where the question was regarding the price payable to a person who was required to sell to the Government a certain percentage of the quantity of sugar produced in his mill. The Order requiring him to sell the sugar to the Government was made under s. 3(2)(f) of the Essential Commodities Act under which the Central Government was enabled to make an order requiring any person engaged in the production of any essential commodity to sell the whole or specified part of the quantity produced by him to the Government or its nominee. It will straight-away be seen that an order under s. 3(2)(f) if a specific order directed to a particular individual for the purpose of enabling the Central Government to purchase a certain quan- tity of the commodity from the person holding it. It is an order for a compulsory sale. When such a compulsory sale is required to be made under s. 3(2)(f), the question naturally arises what is the price to be paid for the commodity pur- chased? Section 3(3C) provides for the ascertainment of the price. It provides that in calculating the amount to be paid for the commodity required to be sold regard is to be had to--(a) the minimum price, if any, fixed for sugarcane by the Central Government under this section; (b) the manufac- turing cost of sugar; (c) the duty or tax, if any, paid or payable thereon; and (d) the securing of a reasonable return on the capital employed in the business of manufacturing sugar. It is further prescribed that different prices may be determined, from time to time, for different areas or for different factories or for different kinds of sugar. It is to be noticed here that the payment to be made under s. 3(3C) is not necessarily the same as the controlled price which may be fixed under s. 3(2)(c) of the Act. Section 3(2)(c) of the Act, we have already seen, enables the Cen- tral Government to make an order controlling the price at which any essential commodity may be bought or sold, if the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or in securing their equitable distribution and availability at fair prices. Section 3(3C) provides for the determination of the price to be paid to a person who has been directed by the Central Government by an Order made under s. 3(2)(c) to sell a certain quantity of an essential commodity to the Government or its nominee. While s. 3(2)(c) contemplates an Order of a general nature, s. 3(3C) contemplates a specific transaction. If the provisions of s. 3(2)(c) under which the price of an essential commo- dity may be controlled are contrasted with s. 3(3C) under which payment is to be made for a commodity require to be sold by an individual to the Government, the distinction between a legislative act and a non-legislative act will at once become clear. The Order made under s. 3(2c), which is not in respect of a single transaction, nor directed to particular individual is clearly a legislative act, while an Order made under s. 3(3C) which is in respect of a particu- lar transaction of compulsory sale from a specific individu- al is a non-legislative act. The Order made under s. 3(2)(c) controlling the price of an essential commodity may itself prescribe the manner in which price is to be fixed but that will not make the fixation of price a non-legislative activ- ity, when the activity is not directed towards a single individual or transaction but is of a general nature, cover- ing all individuals and all transactions. The legislative character of the activity is not shed and an administrative or quasi-judicial character acquired merely because guide- lines prescribed by the statutory order have to be taken into account. We may refer at this juncture to some illuminating passages from Schwrtz's book on 'Administrative Law'. He said: \"If a particular function is termed \"legisla- tive\" or \"rulemaking\" rather than \"judicial\" or \"adjudication,\" it may have substantial effects upon the parties concerned. If the function is treated as legislative in nature, there is no right to notice and hearing, unless a statute expressly requires them. If a hearing is held in accordance with a statutory requirement, it normally need not be a formal one, governed by the requirements discussed in Chapters 6 and 7. The characterization of an administrative act as legislative instead of judicial is thus of great significance.\" XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX X \"As a federal court has recently pointed out, there is no \"bright line\" between rule-making and adjudication. The most famous pre-APA attempt to explain the difference between legislative and judicial functions was made by Justice Holmes in Prentis v. Atlantic Coast Line Co. \"A judicial inquiry,\" said he, \"investigates, declares and enforces liabili- ties as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end. Legislation on the other hand looks to the future and changes existing conditions by making a new rule to be applied thereafter to all or some part of those subject to its power.\" The key factor in the Holmes analysis is time: a rule prescribes future patterns of conduct; a decision determines liabilities upon the basis of present or past facts.\" \"The element of applicability has been empha- sized by others as the key in differentiating legislative from judicial functions. According to Chief Justice Burger, \"Rulemaking is nor- mally directed toward the formulation of requirements having a general application to all members of a broadly identifiable class.\" An adjudication, on the other hand, applies to specific individuals or situations. Rulemaking affects the rights of individuals in the abstract and must be applied in a further proceeding before the legal position of any particular individual will be definitely affected; adjudication operates conceretly upon individuals in their individual X X capacity.\" We may now turn our attention to the two Drugs (Prices Control) Order of 1970 and 1979, both of which were made by the Central Govern- ment in exercise of its powers under s. 3 of the Essential Commodities Act. The Drugs (Prices Control) Order, 1970 defined 'Bulk Drugs' as follows: \"Bulk drugs\" means \"any unprecessed phamaceu- tical, chemical, biological and plant product or medicinal gas conforming to pharmacopocial or other standards accepted which is used as such or after being processed into formula- tions and includes an essential bulk drug.\" Bulk drugs were divided into essential bulk drugs which were included in the schedule and bulk drugs which were not so included. In the case of essential bulk drugs, paragraph 4 of the order enabled the Central Government to fix the maximum price at which such essential bulk drugs should be sold. In the case of bulk drugs, which were not included in the schedule, a manufacturer was entitled to continue to market the product at the same price at which he was market- ing the products at the time of the commencement of the order. He was required to report this price to the Central Government within two weeks of the commencement of the order and was further prohibited from increasing the price without obtaining the approval of the Central Government. A Committee on Drugs and Pharmaceutical Industry, popu- larly known as the Hathi Committee was appointed by the Government of India to enquire into the various facets, of the Drug Industry in India. One of the terms of reference was 'to examine the measures taken so far to reduce prices of drugs for the consumer, and to recommend such further measures as may be necessary to rationalise the prices of basic drugs and formulations.' The Hathi Committee noticed that 'in a country like India where general poverty and the wide disparities in levels of income between different sections existed' it was particularly important to emphasise 'the social utility of the industry and the urgent need for extending as rapidly as possible certain minimum facilities in terms of preventive and curative medicines to the large mass of people both urban and rural'. It was said, \"The concern about drug prices, therefore, really arises from the fact that many of them are essential to the health and welfare of the community; and that there is no justification for the drug industry charging prices and having a production pattern which is based not upon the needs of the community but on aggres- sive marketing tactices and created demand.\" The Government of India accepted the report of the Hathi Committee and announced in Parlia- ment the 'Statement on Drug Policy' pursuant to which the Drugs (Prices Control) Order, 1970 was repealed and the Drugs (Prices Con- trol) Order, 1979 was made. Paragraph 44 of the Statement on Drug Policy in 1978 dealt with 'pricing policy' and it may be usefully extracted here. It was as follows:- \"The Hathi Committee had recommended that a return post tax between 12 to 14% on equity that is paid up capital plus reserves, may be adopted as the basis for price fixation, depending on the importance and complexity of the bulk drug. In the case of formulations, the Hathi Committee felt that the principle of selectivity could be introduced in terms of (a) the size of the units, (b) selection of items; and (c) controlling the prices only of market leaders, in particular, of products for which price control is contemplated. The Hathi Committee considered that units (other than MRTP units) having only turnover of less than Rs.1 crore may be exempted from price control. Alternatively, all formulations (other than those marketed under generic names) which have an annual sale in the coun- try in excess of Rs.15 lakhs (inclusive of excise duty) may be subjected to price con- trol, irrespective of whether or not the total annual turnover of the unit is in excess of Rs.1 crore. The ceiling price will be deter- mined taking into account the production costs and a reasonable return for the units which are the market leaders. Yet another variant of a selectivity, according to the Hathi Commit- tee, would be to identify product groups which individually are important and which collec- tively constitute the bulk of the output of the industry. In respect of each item of this list, it would be possible to identify the leading producers who account for about 60% of the sales between them. On the basis of cost analysis in respect of those units, maximum prices may be prescribed and all other units may be free to fix their prices within this ceiling. On balance, the Hathi Committee was of the view that this particular variant selectivity may be administratively simpler.\" The Drugs (Prices Control) Order, 1979 was made pursuant to this Statement of Policy. Paragraph 2(a) of the Drugs (Prices Control) Order, 1979 defines 'bulk drug' to mean \"any substance including pharmaceutical, chemical, biological or plant product or medicinal gas conforming to pharmacological or other stand- ards accepted under the Drugs and Cosmetics Act, 1940, which is used as such or as in ingredient in any formulations.\" \"Formulation\" is defined as follows:- \"Formulation means a medicine processed out of, or containing one or more bulk drugs or drugs, with or without the use of any pharma- ceutical aids for internal or external use for, or in the diagnosis, treatment, mitiga- tion or prevention of disease in human beings or animals, but shall not include-- (i) any bona fide Ayurvedic (including Sidha) or Unani (Tibb) Systems of medicine; (ii) any medicine included in the Hom- oeopathic system of medicine; (iii) any substance to which the provi- sions of the Drugs and Cosmetics Act, 1940 (XXIII of 1940), do not apply\" The expressions \"free reserve\", \"leader price\", \"net-worth\", \"now bulk drug\", \"pooled price,\" \"pre-tax return\", \"retention price\" are defined in the following manner: \"\"Free reserve\" means a reserve created by appropriation of profits, but does not include reserves provided for contingent liability, disputed claims, goodwill, revaluation, and other similar reserves\". \"'leader price' means a price fixed by the Government for formulations specified in Category I, Category II or Category III of the Third Schedule in accordance with the provi- sions of paras. 10 and 11, keeping in view the cost of or efficiency, or both, of major manufacturers of such formulations.\" \"'net-worth' means the share capital of a company plus free reserve, if any.\" \"'new bulk drug' means a bulk drug manufac- tured within the country, for the first time after the commencement of this Order.\" \"'Pooled price' in relation to a bulk drug, means the price fixed under para 7.\" \"'pre-tax return' means profits before payment of incometax and sur-tax and includes such other expenses as do not form part of the cost of formulations.\" \"'retention price' in relation to a bulk drug means the price fixed under paras 4 and 7 for individual manufacturers, or importers, or distributors, or such bulk drugs.\" The distinction between an essential bulk drug included in the schedule and a bulk drug not so included in the sched- ule, which was made in 1970 Drugs (Prices Control) Order was abandoned in the 1979 Order. Bulk drugs were, however, broadly divided into indigenously manufactured bulk drugs, imported bulk drugs and hulk drugs which were both manufactured indigenously as also imported. Paragraph 3 of the 1979 Order enables the Government, with a view to regulating the equitable distribution of any indigenously manufactured bulk drug specified in the first or the second schedule and making it available at a fair price and after making such enquiry as it deems fit, to fix from time to time by notification in the official gazette, the maximum price at which the bulk drug shall be sold. Clause (2) of Paragraph 3 provides that while so fixing the price of a bulk drug, the Government may take into account the average cost of production of such bulk drug manufac- tured by an efficient manufacturer and allow a reasonable return on net worth. By way of an explanation efficient manufacturer is defined to mean \"a manufacturer-(i) Whose production of such bulk drug in relation to the total pro- duction of such bulk drug in the country is large, or (ii) who employs efficient technology in the production of such bulk drug.\" We have already noticed that 'net worth' is defined to mean 'the share capital of a company plus free reserve, if any'. \"Free reserve\" itself is separately de- fined. It is then prescribed by clause (3)-- \"No person shall sell a bulk drug at a price exceeding the price notified under sub-para- graph 1, plus local taxes, if any payable: provided that until the price of bulk drug is so notified, the price of such bulk drug shall be the price which prevailed immediately before the commencement of this order and the manufacture of such bulk drug at a price exceeding the price which prevailed as afore- said.\" This means that until the maximum sale price of an indige- nously manufactured bulk drug is fixed under paragraph 3 of the 1979 Order, the price fixed under paragraph 4 of the 1970 order or the price permitted under paragraph 5 of the 1970 order was to be maximum sale price. Paragraph 3(4)(a) requires a manufacturer commencing production of the bulk drug specified in the First or Second Schedule, the price of which has already been notified by the Government, not to sell the bulk drug at a price exceeding the notified price. Paragraph 3(4)(b) provides that where the price of a bulk drug has not been notified by the Government, the manufac- turer shall, within 14 days of the commencement of the the production of such bulk drug, make an application to the Government in Form I and intimate the Government the price at which he intends to sell the bulk drug and the Government may, after making such an enquiry as it thinks fit, by order, fix a provisional price at which such bulk drug shall be sold. Paragraph 4 of the 1979 order provides that notwith- standing anything contained in paragraph 3, the Government may, if it considers necessary or expedient so to do for increasing the production of an indigenously manufactured bulk drug specified in the first or second schedule, by order, fix-- \"(a) a retention price of such bulk drug, (b) a common sale price for such bulk drug taking into account the weighted average of the retention price fixed under clause (a).\" Paragraph 4 is thus in the nature of an exception to para- graph 3. It is meant to provide a fillip to individual manufacturers of bulk drugs whose production it is necessary to increase. Retention price, by its very definition per- tains to individual manufacturers. Common sale price, we take it, is the price at which manufacturers whose reten- tions are fixed may sell the bulk drug despite the maximum sale price fixed under paragraph 3. Paragraph 5 deals with the power of the Government to fix maximum sale price of new bulk drugs. Paragraph 6 ena- bles the Government to fix the maximum sale price of import- ed bulk.drugs specified in First and Second Schedules. Paragraph 7 deals with the power of the Government to fix retention price and pooled price for the sale of bulk drugs specified in the First and Second Schedules which are both indigenously manufactured and imported. Paragraph 9 empowers the Government to direct manufacturers of bulk drugs to sell bulk drugs to manufacturers of formulations. Paragraph 10 prescribes a formula for calculating the retail price of formulations. The formula is: \"R.P. = (M.C.+C.C.+P.M.+P.C.) x (1+MU)+ E.D. \"R.P.\" means retail price. \"M.C.\" means material cost and includes the cost of drugs and other pharmaceutical aids used including overages, if any, and process loss thereon in accordance with such norms as may be specified by the Government from time to time by notification in the official Gazette in this behalf. \"C.C.'? means conversion cost worked out in accordance with such norms as may be specified by the Government from time to time by notifi- cation in the official Gazettee in this be- half. \"P.M.\" means the cost of packing material including process loss thereon worked out in accordance with such norms as may be specified by the Government from time to time by notifi- cation in the official Gazette in this behalf. \"P.C.\" means packing charges worked out in accordance with such norms as may be specified by the Government from time to time by notifi- cation in the official Gazette in this behalf. \"M.U.\" means make-up referred to in para. 11. \"E.D.\" means excise duty.\" Paragraph 11 explains what 'Mark-up' means. Paragraph 12 empowers the Government to fix leader prices of formulations of categories I and II specified in the third schedule. Paragraph 13 empowers the Government to fix retail price of formulations specified in category III of third schedule. Paragraph 14 contains some general provisions regarding- prices of formulations. Paragraph 15 empowers the Government to revise prices of formulations. Paragraph 16 provides that where any manufacturer, importer or distributor of any bulk drug or formulation fails to furnish information as required under the order within the time specified therein, the Government may, on the basis of such information as may be available with it, by order, fix a price in respect of such bulk drug or formu- lation as the case may be. Paragraph 17 requires the Govern- ment to maintain the Drugs Prices Equalization Account to which shall be credited, by the manufacturer, among other items, \"the excess of the common selling price or, as the case may be, pooled price over his reten- tion price.\" It is provided that the amount credited to the Drugs Prices Equaliza- tion Account shall be spent for paying to the manufacturer, \"the shortfall between his retention price and the common selling price or as the case may be, the pooled price.\" Paragraph 27 enables any person aggrieved by any notifi- cation or order under paragraphs 3, 4, 5, 6, 7, 9, 12, 13, 14, 15 or 16 to apply to the Government for a review of the notification or order within fifteen days of the date of the publication of the notification in the official Gazette, or, as the case may be, the receipt of the order by him. Bulk drugs constituting categories I and II are enumer- ated in the First Schedule. Bulk drugs constituting category III are enumerated in the Second Schedule. Formulations constituting categories I, II and III are enumerated in the Third Schedule. The Fourth Schedule prescribes the various forms referred to in the different paragraphs of the Drugs (Prices Control) Order. Form No. 1 which is referred to in paragraphs 3(4), 5 and 8(1) is titled \"Form of application for fixation or revision of prices of bulk drug\". The sever- al columns of the Form provide for various particulars to be furnished and item 18 requires the applicant to furnish ,\"the cost of production of the bulk drug as per proforma (attached) duly certified by a practising Cost/Chartered Accountant\". The 'proforma' requires particulars of cost- data, such as, raw materials, utilities, conversion cost, total cost of production, interest on borrowings, minimum bonus, packing, selling expenses, transport charges, transit insurance charges, total cost of sales, selling price, existing price or notional or declared prices, etc. to be furnished. A note at the end of the proforma requires the exclusion from cost certain items of expenses, such as, bonus in excess of statutory minimum, bad debts and provi- sions, donations and charities, loss/gain on sale of assets, brokerage and commission, expenses not recognised by income tax authorities and adjustments relating to previous years. Shri G. Ramaswamy, learned Additional Solicitor General on behalf of the Union of India, submitted that the fixation of maximum price under paragraph 3 of the Drugs (Prices Control) Order was a legislative activity and, therefore, not subject to any principle of natural justice. He urged that relevant information was required to be furnished and was indeed furnished by all the manufacturers in the pre- scribed form as required by paragraph 3(4) of the Drugs (Prices Control) Order. This information obtained from the various manufacturers was taken into account and a report was then obtained from the Bureau of Industrial Costs and Prices, a high-powered expert body specially constituted to undertake the study of industrial cost struc- tures and pricing problems and to advise the Government. It was only thereafter that notifications fixing the prices were issued. He further submitted that paragraph 27 of the Central Order gave a remedy to the manufacturers to seek a review of the order fixing the maximum price under paragraph 3. The review contemplated by paragraph 27 in so far as it related to the notification under paragraph 3, it was sub- mitted by the learned Additional Solicitor General, did not partake the character of a judicial or quasi-judicial pro- ceeding. He urged that the manufacturers had invoked the remedy by way of review, but before the applications for review could be dealt with, they rushed to the court with the writ petitions out of which the appeal and the special leave petitions arise. He urged that the Government had always been ready and wilting to give a proper hearing to the parties and in fact gave them a heating in connection with their review applications. The grievance of the manu- facturers in the writ petitions that they were not furnished the details of the basis of the price fixation was not correct since full information was furnished at the time of the hearing of the review applications when the matter underwent thorough and detailed discussion between the parties and the Government as well as the Bureau of Indus- trial Costs and Prices. The submission of Shri Anil Diwan, learned counsel for the respondents was that unlike other price control legisla- tions, the Drugs (Prices Control) Order ,was designed to induce better production by providing for a fair return to the manufacturer. Reference was made to the Hathi Committee report which had recommended a return of 12 to 14% post tax return on equity, that is, paid up capital plus reserves and the 'Statement on Drug Policy' which mentioned that ceiling prices may be determined by taking into account production costs and a reasonable return. Great emphasis was laid on the second clause of paragraph 3 of the 1979 Order which provides that in fixing the price of a bulk drug, the Gov- ernment may take into account the average cost of production of such bulk drug manufactured by an efficient manufacturer and allow a reasonable return on networth. It was submitted that the provision for an enquiry preceding the determina- tion of the price of a bulk drug, the prescription in para- graph 3 clause 2 that the average cost of production of the drug manufactured by an efficient manufacturer should be taken into account and that a reasonable return on networth should be allowed and the provision for a review of the order determining the price, established that price-fixation under the Drugs (Prices Control) Order 2979 was a quasi- judicial activity obliging the observance of the rules of natural justice. The suggestion of the learned counsel was that the nature of the review under paragraph 27 was so apparently quasi-judicial and that the need to know the reasons for the order sought to be reviewed was so real if the manufacturer was effectively to exercise his right to seek the quasijudicial remedy of review, that by necessary implication it became obvious that the Order fixing the maximum price must be considered to be quasi- judicial and not legislative in character. The provision for enquiry in the first clause of paragraph 3 and the prescrip- tion of the matters to be taken into account in the second clause of paragraph 3 further strengthened the implication, according to the learned counsel. It was contended that in any case, whatever be the nature of the enquiry and the order contemplated by paragraph 3, the review for which provision made by paragraph 27 was certainly of a quasi- judicial character and, therefore, it was necessary that the manufacturers should be informed of the basis for the fixa- tion of the price and furnished with details of the same in order that they may truly and effectively avail themselves of the remedy of review. If that was not done, the remedy would become illusory. It was argued with reference to various facts and figures that the price had been fixed in an arbitrary manner and the Government was not willing to disclose the basis on which the prices were fixed on the pretext that it may involve disclosure of matters of confi- dential nature. It was stated that the applications of the manufacturers for review of the notifications fixing the prices had not been disposed of for years though time was really of the very essence of the matter. The prices of formulations were dependent on the prices of drugs and it was not right that prices of formulations should have been fixed even before the applications for review against the notifications fixing the price of bulk drugs were disposed of. It was suggested that the delay in disposing of the review applications had the effect of rendering the original notifications fixing the prices unreal and out of date and liable to be struck down on that ground alone. We are unable to agree with the submissions of the learned counsel for the respondents either with regard to the applicability of the principles of natural justice or with regard to the nature and the scope of the enquiry and review contemplated by paragraphs 3 and 27 while making our preliminary observations, we pointed out that price fixation is essentially a legislative activity though in rare circum- stances, as in the case of a compulsory sale to the Govern- ment or its nominee, it may assume the character 'of an administrative or quasijudicial activity. Nothing in the scheme of the Drugs (Prices Control) Order induces us to hold that price fixation under the Drugs (Prices Control) Order is not a legislative activity, but a quasi-judicial activity which would attract the observance of the princi- ples of natural justice. Nor is there anything in the scheme or the provisions of the Drugs (Prices Control) Order which otherwise contemplates the observance of any principle of natural justice or kin- dred rule, the non-observance of which would give rise to a cause of action to a suitor. What the order does contemplate however is 'such enquiry' by the Government 'as it thinks fit'. A provision for 'such enquiry' as it thinks fit' by a subordinate legislating body, we have explained earlier, is generally an enabling provision to facilitate the subordi- nate legislating body to obtain relevant information from any source and it is not intended to vest any right in any body other than the subordinate legislating body. In the present case, the enquiry contemplated by paragraph 3 of Drugs (Prices Control) Order is to be made for the purposes of fixing the maximum price at which a bulk drug may be sold, with a view to regulating its equitable distribution and making it available at a fair price. The primary object of the enquiry is to secure the bulk drug at a fair price for the benefit of the ultimate consumer an object designed to fulfil the mandate of Art. 39(b) of the Constitution. It is primarily from the consumer public's point of view that the Government is expected to make its enquiry. The need of the consumer public is to be ascertained and making the drug available to them at a fair price is what it is all about. The enquiry is to be made from that angle and directed towards that end. So, information may be gathered from whatever source considered desirable by the Government. The enquiry, obviously is not to be confined to obtaining infor- mation from the manufacturers only and indeed must go be- yond. However, the interests of the manufacturers are not to be ignored. In fixing the price of a bulk drug, the Govern- ment is expressly required by the Order to take into account the average cost of production of such bulk drug manufac- tured by 'an efficient manufacturer' and allow a reasonable return on 'net worth'. For this purpose too, the Government may gather information from any source including the manu- facturers. Here again the enquiry by the Government need not be restricted to 'an efficient manufacturer' or some manu- facturers; nor need it be extended to all manufacturers. What is necessary is that the average cost of production by 'an efficient manufacturer' must be ascertained and a rea- sonable return allowed on 'net worth'. Such enquiry as it thinks fit is an enquiry in which information is sought from whatever source considered necessary by the enquiring body and is different from an enquiry in which an opportunity is required to be given to persons likely to be affected. The former is an enquiry leading to a legislative activity while the latter is an enquiry which ends in an administrative or quasi-judicial decision. The enquiry contemplated by para- graph 3 of the Drug (Prices Control) Order is an enquiry of the former charac- ter. The legislative activity being a subordinate or dele- gated legislative activity, it must necessarily comply with the statutory conditions if any, no more and no less, and no implications of natural justice can be read into it unless it is a statutory condition. Notwithstanding that the price fixation is a legislative activity, the subordinate legisla- tion had taken care here to provide for a review. The review provided by paragraph 27 of the order is akin to a post decisional hearing which is sometimes afforded after the making of some administrative orders, but not truly so. It is a curious amalgam of a hearing which occasionally precedes a subordinate legislative activity such as the fixing of municipal rates etc. that we mentioned earlier and a post-decision hearing after the making of an administra- tive or quasi-judicial order. It is a hearing which follows a subordinate legislative activity intended to provide an opportunity to affected persons such as the manufacturers, the industry and the consumer public to bring to the notice of the subordinate legislating body the difficulties or problems experienced or likely to be experienced by them consequent on the price fixation, whereupon the Government may make appropriate orders. Any decision taken by the Government cannot be confined to the individual manufacturer seeking review but must necessarily affect all manufacturers of the bulk drug as well as the consumer public. Since the maximum price of a bulk drug is required by paragraph 3 to be notified any fresh decision taken in the proceeding for review by way of modification of the maximum price has to be made by a fresh notification fixing the new maximum price of the bulk drug. In other words, the review if it is fruitful must result in fresh subordinate legislative activity. The true nature of the review provided by paragraph 27 in so far as it relates to the fixation of maximum price of bulk drugs under paragraph 3 leader price and prices of formulations under paragraphs 12 and 13 is hard to define. It is diffi- cult to give it a label and to fit it into a pigeon-hole, legislative, administrative or quasi-judicial. Nor is it desirable to seek analogies and look to distant cousins for guidance. From the scheme of the Control Order and the context and content of paragraph 27, the Review in so far as it concerns the orders under paragraph 3, 12 and 13 appears to be in the nature of a legislative review of legislation, or more precisely a review of subordinate legislation by a subordinate legislating body at the instance of an aggrieved person. Once we have ascertained the nature and character of the review, the further question regarding the scope and extent of the review is not very difficult to answer. The reviewing authority has the fullest freedom and discretion to prescribe its own procedure and con- sider the matter brought before it so long as it does not travel beyond the parameters prescribed by paragraph 3 in the case of a review against an order under paragraph 3 and the respective other paragraphs in the case of other orders. But whatever procedure is adopted, it must be a procedure tuned to the situation. Manufacturers of any bulk drug are either one or a few in number and generally they may be presumed to be well informed persons, well able to take care of themselves, who have the assistance of Accountants, Advocates and experts to advise and espouse their cause. In the context of the Drug industry with which we are concerned and in regard to which the Control Order is made we must proceed on the basis that the manufacturers of bulk drugs are generally persons who know all that is to be known about the price fixed by the Government. From the legislative nature of the activity of the Government, it is clear that the Government is under no obligation to make any disclosure of any information received and considered by it in making the order but in order to render effective the right to seek a review given to an aggrieved person we think that the Government, if so requested by the aggrieved manufacturer is under an obligation to disclose any relevant information which may reasonably be disclosed pertaining to 'the average cost of production of the bulk drug manufactured by an efficient manufacturer' and 'the reasonable return on net worth'. For example, the manufacturer may require the Gov- ernment to give information regarding the particulars de- tailed in Form No. 1 of the Fourth Schedule which have been taken into account and those which have been excluded. The manufacturer may also require to be informed the elements which were taken into account and those which were excluded in assessing the 'free reserves' entering into the calcula- tion of 'net worth'. These particulars which he may seek from the Government are mentioned by us only by way of illustration. He may seek any other relevant information which the Government shall not unreasonably deny. That we think is the nature and scope of the review contemplated by Paragraph 27 in relation to orders made under Paragraphs 3, 12 and 13. On the question of the scope of a Review, the learned counsel for the respondents invited our attention to Vrajlal Manilal & Co. v. Union of India & Anr., [1964] 7 SCR 97; Shivaji Nathubhai v. Union of India & Ors., [1960] 2 SCR 775; Maneka Gandhi, [1978] 2 SCR 621; Swadeshi Cotton Mills, [1981] 2 SCR 533; and Liberty Oil Mills., [1984] 3 SCR 676. We are afraid none of these cases is of any assistance to the correspondence since the court was not concerned in any of those cases with a review of subordinate legislation by the subordinate legislating body. In Vrajlal Manilal & Co. v. Union of India & Anr. (supra) the court held that the Union of India when dispos- ing of an application for review under Rule 59 of the Mines Concession Rules functioned as a quasi-judicial authority and was bound to observe the principles of natural justice. The decision rendered without disclosing the report of the State Government and without affording reasonable opportuni- ty to the appellants to present their case was contrary to natural justice was therefore, void. In ShivaIi Nathubhai v. Union of India & Ors., (supra) it was decided by the court that the power of review granted to the Central Government under Rule 54 of the Mineral Concession Rules required the authority to act judicially and its decision would be a quasi-judicial act and the fact that Rule 54 gave power to the Central Government to pass such order as it may deem 'just and proper' did not negative the duty to act judicial- ly. In Maneka Gandhi's case where Bhagwati, J. while ex- pounding on natural justice pointed out that in appropriate cases where a pre-decisional hearing was impossible, there must atleast be a post-decisional hearing so as to meet the requirement of the rule audi alteram partem. In Swadeshi Cotton Mills, it was observed that in cases where owing to the compulsion of the fact situation or the necessity of taking speedy action, no pre-decisional hearing is given but the action is followed soon by a full post-decisional hear- ing to the person affected, there is in reality no exclusion of the audi alteram partem rule. It is no adaptation of the rule to meet the situational urgency. In Liberty Oil Mills v. Union of India, (supra) the question arose whether clause 8B of the Import Control Order which empowered the Central Government or the Chief Controller to keep in abeyance applications for licences or allotment of imported goods where any investigation is pending into an imported goods where any investigation is pending into an allegation men- tioned in clause 8 excluded the application of the princi- ples of natural justice. The court pointed out that it would be impermissible to interpret a statutory instrument to exclude natural justice unless the language of the instru- ment left no option to the court. As we said, these cases have no application to a review of subordinate legislation by the subordinate legislating body at the instance of a party. We mentioned that the price fixed by the Government may be questioned on the ground that the considerations stipu- lated by the order as relevant were not taken into account. It may also be questioned on any ground on which a subordi- nate legislation may be questioned, such as, being contrary to constitutional or other statutory provisions. It may be questioned on the ground of a denial of the right guaranteed by Art. 14 if it is arbitrary, that is, if either the guidelines prescribed for the determination are arbitrary or if, even though the guidelines are not arbitrary, the guidelines are worked in an arbitrary fashion. There is no question before us that paragraph 3 prescribes any arbitrary guideline. It was, however, submitted that the guidelines were not adhered to and that facts and figures were arbitrarily assumed. We do not propose to delve into the question whether there has been any such arbitrary assumption of facts and figures. We think that if there is any grievance on that score, the proper thing for the manufacturers to do is bring it to the notice of the Government in their applications for review. The learned counsel argued that they were unable to bring these facts to the notice of the Government as they were not furnished the basis on which the prices were fixed. On the other hand, it has been pointed out in the counter-affida- vits filed on behalf of the Government that all necessary and required information was furnished in the course of the hearing of the review applications and. there was no justi- fication for the grievance that particulars were not fur- nished. We are satisfied that the procedure followed by the Government in furnishing the requisite particulars at the time of the hearing of the review applications is sufficient compliance with the demands of fair play in the case of the class of persons claiming to be affected by the fixation of maximum price under the Drugs (Prices Control) Order. As already stated by us, manufacturers of bulk drugs who claim to be affected by the Drugs (prices Control) Order, belong to a class of persons who are well and fully informed of every intricate detail and particular which is required to be taken into account in determining the price. In most cases, they are the sale manufacturers of the bulk drug and even if they are not the sole manufacturers, they belong to the very select few who manufacture the bulk drug. It is impossible to conceive that they cannot sit across the table and discuss item by item with the reviewing authority unless they are furnished in advance full details and particulars. The affidavits filed on behalf of the Union of India show that the procedure which is adopted in hearing the review applications is to discuss across the table the various items that have been taken into account. We do not consider that there is anything unfair in the procedure adopted by the Government. If necessary it is always open to the manu- facturers to seek a short adjournment of the hearing of the review application to enable them to muster more facts and figures on their side. Indeed we find that the hearing given to the manufacturers is often protected. As we said we do not propose to examine this ques- tion as we do not want to constitute ourselves into a court of appeal over the Government in the matter of price fixa- tion. The learned counsel argued that there were several patent errors which came to light during the course of the hearing in the High Court. He said that obsolete quantita- tive usages had been taken into consideration, proximate cost data had been ignored and the data relating to the year ending November, 1976 had been adopted as the basis. It was submitted that there were errors in totalling, errors in the calculation of prices of utilities, errors in the calcula- tion of net-worth and many other similar errors. As we pointed out earlier, these are all matters which should legitimately be raised in the review application, if there is any substance in them. These are not matters for investi- gation in a petition under Art. 226 of the Constitution or under Art. 32 of the Constitution. Despite the pressing invitation of Shri Diwan to go into facts and figures and his elaborate submissions based on facts and figures, we have carefully and studiously refrained from making any reference to such facts and figures as we consider it out- side our province to do so and we do not want to set any precedent as was supposed to have been done in Premier Automobiles though it was not so done and, therefore, needed explanation in later cases. One of the submissions of Shri Diwan was that in calcu- lating \"net-worth\" the cost of new works in progress and the amount invested outside the business were excluded from 'free reserves' and that such exclusion could not be justi- fied on any known principle of accountancy. We think that the question has to be decided with reference to the defini- tion of 'free reserve' in paragraph 2(g) of the Control Order and not on any assumed principle of accountancy. This is also a question which may be raised before the Government in the review application. Referring to the 'proforma' attached to Form No. 1 of the Fourth Schedule in which are set out several items which have to be taken into account in assessing the cost of production, the learned counsel at- tacks the notes at the end of Item No. 14 which mentions the various items of expenses to be excluded in ascertaining the cost. The notes is as follows:- \"Notes:-(i) Items of expenses to be excluded from costs-- a) Bonus in excess of statutory minimum. (b) Bad debts and provisions. (c) Donations and charities. (d) Loss/Gain on sale of assets. (e) Brokerage and commission. (f) Expenses not recognized by Income-tax authorities (salary/prequisities, advertisements, etc.). (g) Adjustments relating to previous years.\" In particular, he argued that Item (a) 'bonus in excess of statutory minimum' should not have been excluded so also items of expenditure coming under the other heads (b) to (g) which had been allowed by Income-tax authorities as legiti- mate expenses. His submission was that where bonus in excess of statutory minimum was payable under the provisions of the Bonus Act there was no option left to the manufacturer not to pay the excess bonus. Similarly where expenses have been legitimately incurred and allowed by Income-tax authorities, there was no justification for excluding those items of expenditure from the cost. We do not agree with the submis- sion. It was open to the subordinate legislating body to prescribe and adopt its own mode of ascertaining the cost of production and the items to be included and excluded in so doing. The subordinate legislating body was under no obliga- tion to adopt the method adopted by the Income-tax authori- ties in allowing expenses for the purpose of ascertaining income and assessing it. There may be many items of business expenditure which may be allowed by Income-tax authorities as legitimate expenses but which can never enter the cost of production. So long as the method prescribed and adopted by the subordinate legislating body is not arbitrary and op- posed to the principal statutory provisions, it cannot be legitimately questioned. Another submission of the learned counsel relating to the norms for conversion costs, packing charges and process loss of raw materials and packing mate- rials required to the notified for the purpose of calculat- ing retail prices of formulations. The argument, for exam- ple, was that there should be a more scientific formula in regard to conversion cost and not, as was done, so many rupees and paise per thousand capsules or one litre of liquid. We do not agree with the submission. It is open to the subordinate legislating authority to adopt a rough and ready but otherwise not unreasonable formula rather than a needlessly intricate so-called scientific formula. We are unable to say that the subordinate legislating authority acted unreasonably in prescribing the norms in the manner it has done. While on the question on formulations, we would like to refer to the \"Oration\" of Dr. N.H. Antia at the 24th Annual Convocation of the National Academy of Medical Sciences where he posed the question: \"Why do we produce 60,000 formulations of drugs worth Rs.2,500 crores which reach only 20% of the population when WHO recommends only 258 drugs and Rs.750 crores worth would suf- fice for all our people if used in an ethical manner?\" A general submission of the learned counsel was that the price of formulations should not have been prescribed until the review application filed by the manufacturer in regard to the patent bulk drugs was disposed of. He submitted that the price of a formulation was dependant on the price of the bulk drug and it was, therefore, not right to fix the price of formulation when the price of bulk drug was in question in the review application and there was a prospect of the price of the bulk drug being increased. We do not see any force in the submission. We think that it is the necessary duty of the Government to proceed to fix the retail price of a formulation as soon as the price of the parent bulk drug is fixed. Price fixation of a formulation is no doubt de- pendant on the price of the bulk drug, but it is not to await the result of a review application which in the end may turn out to be entirely without substance. If a review application is allowed and the price of the bulk drug is raised and if in the meanwhile, the formulation had been ordered to be sold at a low price, it may result in consid- erable loss to the manufacturer. But on the other hand, if the review application turns out to be entirely without substance and has to be rejected and if in the meanwhile the formulation is allowed to be sold at a higher price, the consumer public suffers. Thus, the ups and downs of commerce are inevitable and it is not possible to devise a fool proof system to take care of every possible defect and objection. It is certainly not a matter at which the court could take a hand. All that the court may do is to direct the Government to dispose of the review application expeditiously according to a time-bound programme. All that the Government may do is to dispose of the review application with the utmost expedi- tion. But as we perceive the public interest, it is neces- sary that the price of formulation should be fixed close on the heels of the fixation of bulk drug price. Another submission of Shri Diwan was that there was considerable delay in the disposal of the review applica- tions by the Govern- ment and that even now no orders had been passed in several cases. Accordingly to the learned counsel, the very delay in the disposal of review applications was sufficient to viti- ate the entire proceeding and scheme of price fixation. According to the learned counsel, the price of a bulk drug is dependant on many variable factors which keep changing very fast. If time is allowed to lapse whatever price is fixed, it soon becomes out of date. If review applications are not disposed of expeditiously the notifications fixing the prices must be struck down as having become obsolete. It is difficult to agree with these propositions. It is true that the price of a bulk drug is dependent on innumerable variables. But it does not follow that the notification fixing the maximum price must necessarily be struck down as obsolete by the mere passage of time. We agree that applica- tions for review must be dealt with expeditiously and when- ever they are not so dealt with, the aggrieved person may seek a mandamus from the court to direct the Government to deal with the review application within a time framework. We notice that in all these matters, the High Court granted stay of implementation of the notifications fixing the maximum prices of bulk drugs and the retail prices of formulations. We think that in matter of this nature, where prices of essential commodities are fixed in order to main- tain or increase supply of the commodities or for securing the equitable distribution and availability at fair prices of the commodity, it is not right that the court should make any interim order staying the implementation of the notifi- cation fixing the prices. We consider that such orders are against the public interest and ought not to be made by a court unless the court is satisfied that no public interest is going to be served. In the present case, on ex-parte interim order was made on April 20, 1981 in the following terms: \"In the meanwhile on the petitioners' giving an undertakings to maintain prices both for bulk and formulation, as were prevailing prior to the impugned notification we stay implemen- tation of the impugned bulk drug prices as well as formulation prices.\" Thereafter on November 25, 1981, a further order was made to the following effect: \"After hearing learned counsel and with their consent, and arrangement has been worked out as on interim measure. We, there- fore, confirm till further orders the interim order made by us on April 20, 1981. The terms of the said order, that is on the undertaking given on behalf of the petitioners to maintain status quo on the prices prevail- ing prior to the issue of the impugned notifi- cation, the petitioners, through their counsel further given an undertaking to this court that, in case the petition is dismissed and the rule is discharged, the petitioners shall within eight weeks of the dismissal of the petition by this court, deposit in this court the difference in the prices of the formula- tions in question for being ...... equaliza- tion account. The petitioners, through their counsel further given an undertaking that in this court the petitioners would not contend or challenge the said amount if deposited, is not liable to be deposited under any law whatsoever. It is made clear that the under- taking is without prejudice to the petition- ers' right to take appropriate directions from the Supreme Court if so advised in this re- gard.\" No doubt the order as made on November 25, 1981 has the manufacturers On terms, but the consumer public has been left high and dry. Their interests have in no way been taken care of. In matters of fixation of price, it is the interest of the consumer public that must come first and any interim order must take care of that interest. It was argued by the learned counsel that the undertaking given by the parties lapsed with the disposal of the writ petition by the High Court and that it could no longer be enforced. We do not agree with this submission. Apart from the fact that an appeal is ordinarily considered to be a continuation of the original proceeding, in the present case, we notice that further orders of the Supreme Court were also in contempla- tion and such further orders could only be if appeals were preferred to the Supreme Court. We do not think that there was any doubt in anyone's mind that the matter would be taken up in appeal to the Supreme Court whichever way the writ petitions were decided. We are of the view that the undertakings given by the parties in the present cases were intended to and do continue to subsist. On the conclusions arrived at by us we have no doubt that the appeal must be allowed and the writ petition in the High Court dismissed. However, we think that it is necessary to give a direction to the Government to dispose of the review applications after giving a notice of hearing to the manufacturer. The hearing may be given within two months from today and the review application disposed of within two weeks after the conclusion of the hearing. Any information sought by the manufacturer may be given to him at the hearing in terms of what we have said in the judgment. The Union of India is entitled to the costs of the appeal and the writ petition in the High Court. It appears that although several writ petitions filed by different manufacturers were disposed of by the High Court by a common judgment, the Union of India filed an appeal within the prescribed period of limitation against one of the manufacturers, Cynamide India Limited only. This was apparently done under some misapprehension that it would be enough if a single appeal was filed. Later when it was realized that separate appeals were necessary, the Union of India filed petitions for special leave to appeal against the other manufacturers also. As these petitions were filed beyond the prescribed period of limitation, petitions for condoning the delay in filing the petitions for special leave to appeal had to be and were filed. These applications are strenuously opposed by the manufacturers who contend the ordinary rule which is enforced in cases of delay namely that everyday's delay must be properly explained should also be rigorously enforced against the Government. It is con- tended that the Government is a well verse litigant as compared with private litigants and even if there is justi- fication of adopting a liberal approach in condoning delay in the case of private litigants there was no need to adopt such approach in the case of the Government. In cases like the present where parties have acted on the assumption that no appeals had been filed against them and have proceeded to arrange their affairs accordingly it would be unjust to condone the delay in filing the appeals at the instance of the Government. Though we see considerable force in the submission of Shri Diwan, we think that the circumstances of the instant cases do justify the exercise of our discretion to condone the delay. Two important features have weighed with us in condoning the delay. One is that all the writ petitions were disposed of by a common judgment and an appeal had been filed in the principal case. The other is that it is a 'matter of serious concern to the public inter- est. We, therefore, condone the delay, grant special leave in all the petitions for special leave and direct the ap- peals to be listed for hearing on May 1, 1987. P.S.S. 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{"id": "1992267", "text": "REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. OF 2011 (Arising out of Special Leave Petition (C) No.8939/10 Dev Sharan & Ors. ...Appellant(s) - Versus - State of U.P. & Ors. ...Respondent(s) With CIVIL APPEAL NO. OF 2011 (Arising out of Special Leave Petition (C) No.10993/10 Babu Ram Dixit ...Appellant(s) - Versus - State of U.P. & Ors. ...Respondent(s) J U D G M E N T GANGULY, J. 1. Leave granted. 2. These appeals have been preferred from the judgment and order of the High Court dated 25.11.2009 in Writ Petitions (Civil) No.46457/2009. 3. The appellants challenge the acquisition of their agricultural lands by the State of Uttar Pradesh for the construction of the district jail of Shahjahanpur. The appellants themselves are bhumidar with transferable rights and are residents of village Murchha, tehsil Puwayan in the district of Shahjahanpur, Uttar Pradesh. 4. The State of Uttar Pradesh vide its office memorandum dated 25.10.2004 constituted a committee under the Chairmanship of the Hon'ble Minister of Revenue to suggest its recommendations for transfer of prisons situated in the congested areas of various districts. After conducting its second and final meeting on 10th January, 2005, the said committee recommended to the State Government the shifting of the district jails from congested areas to outside the city limits within the district. As per the schedule, this shifting was to be done in two phases: st phase 1. District Jail, Shahjahanpur; 2. District Jail, Azamgarh; 3. District Jail, Jaunpur; and 4. District Jail, Moradabad. nd phase 1. District Jail, Badaun; 2. District Jail, Varanasi; 3. District Jail, Barielly; and 4. District Jail, Muzaffarnagar. 5. The existing district jail of Shahjahanpur, constructed in 1870, was one of the oldest and required shifting to a new premises. The Government case is that the district jail is located in a densely populated area of the city and is overcrowded, housing as many as 1869 prisoners, while having a capacity of only 511. 6. Thereafter, the State Government constituted a committee under the Chairmanship of Chief Secretary, Government of U.P. vide office memorandum dated 12.9.2007 to evaluate and consider the shifting of prisons identified to be shifted in the first phase. Prisons in the districts of Lucknow, Moradabad were added to the list. This committee was also to evaluate and recommend the means for modernisation of existing old prisons. In its meeting dated 10.10.2007 the committee recommended that a Detailed Project Report (DPR) be prepared by the Rajkiya Nirman Nigam, and that acquisition of lands for shifting of the prisons be done on a priority basis. 7. These recommendations were accepted by the State Government vide the approval of the cabinet dated 7.12.2007. Following this decision, the Director General of Prisons (Administration and Reforms), Uttar Pradesh, vide letter dated 04.06.2008, requested the District Magistrate, Shahjahanpur to send all the relevant records to the State Government for publication of notification under Sections 4(1) and 17 of the Land Acquisition Act, 1894 (hereinafter `the Act'). The land suggested for such acquisition by the Divisional Land Utility Committee was one admeasuring 25.89 hectares (63.93 acres) in village Morchha, tehsil Puwayan in the district of Shahjahanpur. 8. Thereafter, the District Magistrate, Shahjahanpur forwarded the proposal to the Commissioner and Director, Directorate of Land Acquisition (Revenue Board, Uttar Pradesh), for the issuance of notifications under Sections 4(1) and 17 of the Act, which in turn approved of it and further forwarded the recommendation to the State Government, vide letter dated 2.07.2008. 9. Thus, the State Government issued notifications under Sections 4(1) and 17 on 21.08.2008. However, the provisions of Section 5A inquiry were dispensed with. The State Government explained that this was done in view of the pressing urgency in the matter of construction of the jails. 10. Being aggrieved by the aforesaid notifications, the appellants moved a writ petition before the High Court under Article 226 of the Constitution of India. The High Court in its decision dated 25.11.2009 refused to interfere with the selection of the site for the construction of the jail premises on the ground that it was not required to do so unless it found the selection of the site was wholly arbitrary. The High Court also approved the invoking of emergency provisions under Section 17 of the Act as per the guidelines given in Essco Fabs Private Limited and another vs. State of Haryana and another (2009) 2 SCC 377. Having thus stated, the High Court dismissed the writ petition. 11. Before this Court the appellants broadly raised the following arguments: 1. Whether or not the State Government was justified in acquiring the said pieces of fertile agricultural land, when there were alternative sites of unfertile banjar land available? 2. Whether or not the State Government was justified in dispensing with the inquiry which is mandated to be conducted under Section 5A of the Act, especially when one year elapsed between the notifications under Section 4 and the one under Section 6. They further stated that the High Court had erred insofar as it upheld the factum of urgency in the absence of a categorical finding, an enquiry under Section 5A would have been detrimental to public interest. 12. It was urged that it was clear from the counter of the respondent that the contemplation of a new prison was under consideration of the State Government for several years. Committee was formed, matter was discussed at a leisurely pace at various levels and there is no material fact to justify the abridgement of the appellants' right of raising an objection to acquisition and of a hearing under Section 5A of the Act. 13. This Court finds a lot of substance in the contentions of the appellants. 14. In connection with land acquisition proceeding whenever the provision of Section 17 and its various sub-sections including Section 17(4) is used in the name of taking urgent or emergent action and the right of hearing of the land holder under Section 5A is dispensed with, the Court is called upon to consider a few fundamentals in the exercise of such powers. 15. Admittedly, the Land Acquisition Act, a pre-Constitutional legislation of colonial vintage is a drastic law, being expropriatory in nature as it confers on the State a power which affects person's property right. Even though right to property is no longer fundamental and was never a natural right, and is acquired on a concession by the State, it has to be accepted that without right to some property, other rights become illusory. This Court is considering these questions, especially, in the context of some recent trends in land acquisition. This Court is of the opinion that the concept of public purpose in land acquisition has to be viewed from an angle which is consistent with the concept of a welfare State. 16. The concept of public purpose cannot remain static for all time to come. The concept, even though sought to be defined under Section 3(f) of the Act, is not capable of any precise definition. The said definition, having suffered several amendments, has assumed the character of an inclusive one. It must be accepted that in construing public purpose, a broad and overall view has to be taken and the focus must be on ensuring maximum benefit to the largest number of people. Any attempt by the State to acquire land by promoting a public purpose to benefit a particular group of people or to serve any particular interest at the cost of the interest of a large section of people especially of the common people defeats the very concept of public purpose. Even though the concept of public purpose was introduced by pre- Constitutional legislation, its application must be consistent with the constitutional ethos and especially the chapter under Fundamental Rights and also the Directive Principles. 17. In construing the concept of public purpose, the mandate of Article 13 of the Constitution that any pre-constitutional law cannot in any way take away or abridge rights conferred under Part-III must be kept in mind. By judicial interpretation the contents of these Part III rights are constantly expanded. The meaning of public purpose in acquisition of land must be judged on the touchstone of this expanded view of Part-III rights. The open-ended nature of our Constitution needs a harmonious reconciliation between various competing principles and the overhanging shadows of socio-economic reality in this country. 18. Therefore, the concept of public purpose on this broad horizon must also be read into the provisions of emergency power under Section 17 with the consequential dispensation of right of hearing under Section 5A of the said Act. The Courts must examine these questions very carefully when little Indians lose their small property in the name of mindless acquisition at the instance of the State. If public purpose can be satisfied by not rendering common man homeless and by exploring other avenues of acquisition, the Courts, before sanctioning an acquisition, must in exercise of its power of judicial review, focus its attention on the concept of social and economic justice. While examining these questions of public importance, the Courts, especially the Higher Courts, cannot afford to act as mere umpires. In this context we reiterate the principle laid down by this Court in Authorised Officer, Thanjavur and another vs. S. Naganatha Ayyar and others reported in (1979) 3 SCC 466, wherein this Court held: \"......It is true that Judges are constitutional invigilators and statutory interpreters; but they are also responsive and responsible to Part IV of the Constitution being one of the trinity of the nation's appointed instrumentalities in the transformation of the socio- economic order. The judiciary, in its sphere, shares the revolutionary purpose of the constitutional order, and when called upon to decode social legislation must be animated by a goal-oriented approach. This is part of the dynamics of statutory interpretation in the developing countries so that courts are not converted into rescue shelters for those who seek to defeat agrarian justice by cute transactions of many manifestations now so familiar in the country and illustrated by the several cases under appeal. This caveat has become necessary because the judiciary is not a mere umpire, as some assume, but an activist catalyst in the constitutional scheme.\" 19. In other words public purpose must be viewed through the prism of Constitutional values as stated above. 20. The aforesaid principles in our jurisprudence compel this Court to construe any expropriartory legislation like the Land Acquisition Act very strictly. 21. The judicial pronouncements on this aspect are numerous, only a few of them may be noted here. 22. In DLF Qutab Enclave Complex Educational Charitable Trust vs. State of Haryana and Ors. - (2003) 5 SCC 622, this Court construed the statute on Town Planning Law and held \"Expropriatory statute, as is well known, must be strictly construed.\" (See para 41 page 635). 23. The same principle has been reiterated subsequently by a three-Judge Bench of this Court in State of Maharashtra and Anr. vs. B.E. Billimoria and Ors. - (2003) 7 SCC 336 in the context of ceiling law. (See para 22 at page 347 of the report). 24. These principles again found support in the decision of this Court in Chairman, Indore Vikas Pradhikaran vs. Pure Industrial Coke and Chemicals Ltd. and Ors. - (2007) 8 SCC 705, wherein this Court construed the status of a person's right to property after deletion of Article 19(1)(f) from Part III. By referring to various international covenants, namely, the Declaration of Human and Civic Rights, this Court held that even though right to property has ceased to be a fundamental right but it would however be given an express recognition as a legal right and also as a human right . 25. While discussing the ambit and extent of property right, this Court reiterated that expropriatory legislation must be given strict construction. (See para 53 to 57 at pages 731 to 732 of the report) 26. In the background of the aforesaid discussion, this Court proceeds to examine the scope of a person's right under Section 5A of the Act. 27. Initially, Section 5A was not there in the Land Acquisition Act, 1894 but the same was inserted long ago by the Land Acquisition (Amendment) Act, 1923 vide Section 3 of Act 38 of 1923. 28. The history behind insertion of Section 5A, in the Act of 1894 seems to be a decision of the Division Bench of Calcutta High Court in J.E.D. Ezra vs. The Secretary of State for India and ors reported in 7 C. W. N. 249. In that case, the properties of Ezra were sought to be acquired under the pre amended provision of the Act for expansion of the offices of the Bank of Bengal. In challenging the said acquisition, it was argued that the person whose property is going to be taken away should be allowed a hearing on the principles of natural justice. However the judges found that there was no such provision in the Act. (see p. 269) 29. In order to remedy this shortcoming in the Act of 1894, an amendment by way of incorporation of Section 5A was introduced on 11th July, 1923. The Statement of Objects and Reasons for the said Amendment is as follows: \"The Land Acquisition Act I of 1894 does not provide that persons having an interest in land which it is proposed to acquire, shall have the right of objecting to such acquisition; nor is Government bound to enquire into and consider any objections that may reach them. The object of this Bill is to provide that a Local Government shall not declare, under section 6 of the Act, that any land is needed for a public purpose unless time has been allowed after the notification under section 4 for persons interested in the land to put in objections and for such objections to be considered by the Local Government.\" (Gazette of India, Pt. V, dated 14th July, 1923, page 260) 30. The said amendment was assented to by the Governor General on 5th August, 1923 and came into force on 1st January, 1924. 31. The importance and scheme of Section 5A was construed by this Court in several cases. As early as in 1964, this Court in Nandeshwar Prasad and Ors. vs. U.P. Government and Ors. Etc. - AIR 1964 SC 1217 speaking through Justice K.N. Wanchoo (as His Lordship then was) held \"...The right to file objections under Section 5A is a substantial right when a person's property is being threatened with acquisition and we cannot accept that that right can be taken away as if by a side-wind.....\" In that case the Court was considering the importance of rights under Section 5A vis-`-vis Section 17(1) and Section 17(1)(A) of the Act. (See para 13 at page 1222 of the report). 32. The same view has been reiterated by another three-Judge Bench decision of this Court in Munshi Singh and Ors. vs. Union of India - (1973) 2 SCC 337. In para 7 of the report this Court held that Section 5A embodies a very just and wholesome principle of giving proper and reasonable opportunity to a land loser of persuading the authorities that his property should not be acquired. This Court made it clear that declaration under Section 6 has to be made only after the appropriate Government is satisfied on a consideration of the report made by the Collector under Section 5A. The Court, however, made it clear that only in a case of real urgency the provision of Section 5A can be dispensed with (See para 7 page 342 of the report). 33. In Hindustan Petroleum Corporation Limited vs. Darius Shahpur Chennai and ors., (2005) 7 SCC 627, this Court held that the right which is conferred under Section 5A has to be read considering the provisions of Article 300-A of the Constitution and, so construed, the right under Section 5A should be interpreted as being akin to a Fundamental Right. This Court held that the same being the legal position, the procedures which have been laid down for depriving a person of the said right must be strictly complied with. 34. In a recent judgment of this Court in Essco Fabs (supra), (2009) 2 SCC 377, this Court, after considering previous judgments as also the provisions of Section 17 of the Act held: \"41. Whereas sub-section (1) of Section 17 deals with cases of \"urgency\", sub-section (2) of the said section covers cases of \"sudden change in the channel of any navigable river or other unforeseen emergency\". But even in such cases i.e. cases of \"urgency\" or \"unforeseen emergency\", enquiry contemplated by Section 5-A cannot ipso facto be dispensed with which is clear from sub-section (4) of Section 17 of the Act.\" 35. This Court, therefore, held that once a case is covered under sub-section (1) or (2) of Section 17, sub-section (4) of Section 17 would not necessarily apply. \"54. In our opinion, therefore, the contention of learned counsel for the respondent authorities is not well founded and cannot be upheld that once a case is covered by sub- sections (1) or (2) of Section 17 of the Act, sub-section (4) of Section 17 would necessarily apply and there is no question of holding inquiry or hearing objections under Section 5-A of the Act. Acceptance of such contention or upholding of this argument will make sub- section (4) of Section 17 totally otiose, redundant and nugatory.\" 36. This Court also held that in view of the ratio in Union of India vs. Mukesh Hans, (2004) 8 SCC 14, sub-section (4) of Section 17 cannot be pressed into service by officers who are negligent and lethargic in initiating acquisition proceedings. 37. The question is whether in the admitted facts of this case, invoking the urgency clause under Section 17 (4) is justified. In the writ petition before the High Court, the petitioners have given the details of the land holding, and it has also been stated that the entire holding of petitioners 2, 5, 7, 9, 10, 11 and 13 have been acquired, and as a result of such acquisition, the petitioners have become landless. From the various facts disclosed in the said affidavit it appears that the matter was initiated by the Government's letter dated 4th of June, 2008 for issuance of Section 4(1) and Section 17 notifications. A meeting for selection of the suitable site for construction was held on 27th June, 2008, and the proposal for such acquisition and construction was sent to the Director, Land Acquisition on 2nd of July, 2008. This was in turn forwarded to the State Government by the Director on 22nd of July, 2008. After due consideration of the forwarded proposal and documents, the State Government issued the Section 4 notification, along with Section 17 notification on 21st of August, 2008. These notifications were published in local newspapers on 24th of September, 2008. Thereafter, over a period of 9 months, the State Government deposited 10% of compensation payable to the landowners, along with 10% of acquisition expenses and 70% of cost of acquisition was deposited, and the proposal for issuance of Section 6 declaration was sent to the Director, Land Acquisition on 19th of June, 2009. The Director in turn forwarded all these to the State Government on 17th July, 2009, and the State Government finally issued the Section 6 declaration on 10th of August, 2009. This declaration was published in the local dailies on 17th of August, 2009. 38. Thus the time which elapsed between publication of Section 4(1) and Section 17 notifications, and Section 6 declaration, in the local newspapers is of 11 months and 23 days, i.e. almost one year. This slow pace at which the government machinery had functioned in processing the acquisition, clearly evinces that there was no urgency for acquiring the land so as to warrant invoking Section 17 (4) of the Act. 39. In paragraph 15 of the writ petition, it has been clearly stated that there was a time gap of more than 11 months between Section 4 and Section 6 notifications, which demonstrates that there was no urgency in the State action which could deny the petitioners their right under Section 5A. In the counter which was filed in this case by the State before the High Court, it was not disputed that the time gap between Section 4 notification read with Section 17, and Section 6 notification was about 11 months. 40. The construction of jail is certainly in public interest and for such construction land may be acquired. But such acquisition can be made only by strictly following the mandate of the said Act. In the facts of this case, such acquisition cannot be made by invoking emergency provisions of Section 17. If so advised, Government can initiate acquisition proceeding by following the provision of Section 5A of the Act and in accordance with law. 41. For the reasons aforesaid, we hold that the State Government was not justified, in the facts of this case, to invoke the emergency provision of Section 17(4) of the Act. The valuable right of the appellants under Section 5A of the Act cannot flattened and steamrolled on the `ipsi dixit' of the executive authority. The impugned notifications under Sections 4 and 6 of the Act in so far as they relate to the appellants' land are quashed. The possession of the appellants in respect of their land cannot be interfered with except in accordance with law. 42. The appeals are allowed. No order as to costs. .......................J. (G.S. SINGHVI) .......................J. 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{"id": "190580", "text": "CASE NO.: Appeal (civil) 2568 of 2001 Appeal (civil) 2569 of 2001 Appeal (civil) 2570 of 2001 Appeal (civil) 2571 of 2001 Appeal (civil) 2572 of 2001 Appeal (civil) 2573 of 2001 PETITIONER: THE ORIENTAL INSURANCE CO. LTD. Vs. RESPONDENT: HANSRAJBHAI V. KODALA & ORS. DATE OF JUDGMENT: 04/04/2001 BENCH: M.B. Shah & D.P. Mohapatra JUDGMENT: L...I...T.......T.......T.......T.......T.......T.......T..J Shah, J. Leave granted. The common question involved in these appeals is whether the compensation payable under Section 163A of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act) as per the structured formula basis is in addition or in the alternative to the determination of the compensation on the principle of fault liability, after following the procedure prescribed under the Act? For convenience we would refer to few facts in Civil Appeal arising out of S.L.P. (Civil) No.8742 of 1999 in which the judgment and order dated 4.8.98 passed by the High Court of Gujarat at Ahmedabad in FA No.2473 of 1996 is challenged. Petition claiming compensation of Rs. 2,50,000/- was filed before the Claims Tribunal on the ground that one bus bearing registration No. G.J.3T 9815 met with an accident and Mayur, son of respondent Nos. 1 and 2, aged about 6 years died as a result thereof. The claimants also filed an application under Section 163A of the Act for interim compensation on structured formula basis. The Insurance Company- appellant contended that as the bus was not insured with it, it was not liable to pay compensation. The Claims Tribunal granted the prayer of the respondents and directed the appellant to pay Rs.1,62,000/- to the respondents as interim compensation. The appellants preferred appeal before the High Court contending inter alia that in order to provide quicker relief to the accident victims, Section 163A was inserted and is not meant for interim compensation but is an alternative to the determination of compensation under Section 168. It was further contended that the application under Section 163A was a substantial application and not an interim application. The High Court by judgment and order dated 4.8.1998 held that the award under section 163A was an interim award and the claimants were entitled to proceed further with determination of compensation under Section 168 of the Act. That order is under challenge. For determining the question involved, the scheme for payment of compensation under the Act can be divided as under: - (i) Section 140For no-fault liability in case of death or disablement; (ii) Section 161In case of hit and run motor accidents, where the identity of the vehicle cannot be ascertained compensation amount is Rs.25000/- in case of death and Rs.12500/- in case of grievous hurt; (iii) Section 163ASpecial provisions as to payment of compensation on structured formula basis without establishing or proving any wrongful act or neglect or default of any person; (iv) Section 168Determination of compensation payable in pursuance of any right on the principle of fault liability. Chapter XII provides for constitution of Claims Tribunals by the State Government for the purpose of adjudicating the claims for compensation and the procedure thereof. The Claims Tribunal is required to determine the application for payment of compensation either under section 140 or section 163A on the basis of no-fault liability and also on the basis of right to receive the compensation on the principle of fault liability on the basis of Law of Torts, as modified by the Fatal Accidents Act, 1855 read with Motor Vehicles Act, 1988. For appreciating the rival contentions, it would be necessary to refer to the relevant provisions of the Sections 140 (Chapter X), 161, 162, 163A, 163B (Chapter XI) and 167 (Chapter XII) of the Act which are as under: 140. Liability to pay compensation in certain cases on the principle of no fault. (1) Whether death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle or motor vehicles, the owner of the vehicle shall, or, as the case may be, the owners of the vehicles shall, jointly and severally, be liable to pay compensation in respect of such death or disablement in accordance with the provisions of this section. (2) The amount of compensation which shall be payable under sub-section (1) in respect of the death of any person shall be a fixed sum of fifty thousand rupees and the amount of compensation payable under that sub-section in respect of the permanent disablement of any person shall be a fixed sum of twenty-five thousand rupees. (3) In any claim for compensation under sub-section (1), the claimant shall not be required to plead and establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned or of any other person. (4) A claim for compensation under sub-section (1) shall not be defeated by reason of any wrongful act, neglect or default of the person in respect of whose death or permanent disablement the claim has been made nor shall the quantum of compensation recoverable in respect of such death or permanent disablement be reduced on the basis of the share of such person in the responsibility for such death or permanent disablement. (5) Notwithstanding anything contained in sub-section (2) regarding the death or bodily injury to any person, for which the owner of the vehicle is liable to give compensation for relief, he is also liable to pay compensation under any other law for the time being in force; Provided that the amount of such compensation to be given under any other law shall be reduced from the amount of compensation payable under this section or under section 163A. 141. (1) Provisions as to other right to claim compensation for death or permanent disablement. (1) The right to claim compensation under section 140 in respect of death or permanent disablement of any person shall be in addition to any other right, except the right to claim under the scheme referred to in section 163A (such other right hereafter in this section referred to as the right on the principle of fault) to claim compensation in respect thereof under any other provision of this Act or of any other law for the time being in force. (2) A claim for compensation under section 140 in respect of death or permanent disablement of any person shall be disposed of as expeditiously as possible and where compensation is claimed in respect of such death or permanent disablement under section 140 and also in pursuance of any right on the principle of fault, the claim for compensation under section 140 shall be disposed of as aforesaid in the first place. (3) Notwithstanding anything contained in sub-section (1), where in respect of the death or permanent disablement of any person, the person liable to pay compensation under section 140 is also liable to pay compensation in accordance with the right on the principle of fault, the person so liable shall pay the first-mentioned compensation and (a) if the amount of the first-mentioned compensation is less than the amount of the second-mentioned compensation, he shall be liable to pay (in addition) to the first-mentioned compensation) only so much of the second-mentioned compensation as is equal to the amount by which it exceeds the first mentioned compensation; (b) if the amount of the first-mentioned compensation is equal to or more than the amount of the second- mentioned compensation, he shall not be liable to pay the second-mentioned compensation. 161. Special provisions as to compensation in case of hit and run motor accident. (1) For the purposes of this section, section 162 and section 163 (a) grievous hurt shall have the same meaning as in the Indian Penal Code, 1860 (45 of 1860); (b) hit and run motor accident means an accident arising out of the use of a motor vehicle or motor vehicles the identity whereof cannot be ascertained in spite of reasonable efforts for the purpose; (c) scheme means the scheme framed under section 163. (2) Notwithstanding anything contained in the General Insurance Business (Nationalisation) Act, 1972 (57 of 1972) or any other law for the time being in force or any instrument having the force of law, the General Insurance Corporation of India formed under section 9 of the said Act and the insurance companies for the time being carrying on general insurance business in India shall provide for paying in accordance with the provisions of this Act and the scheme, compensation in respect of the death of, or grievous hurt to, persons resulting from hit and run motor accidents. (3) Subject to the provisions of this Act and the scheme, there shall be paid as compensation (a) in respect of the death of any person resulting from a hit and run motor accident, a fixed sum of twenty-five thousand rupees; (b) in respect of grievous hurt to any person resulting from a hit and run motor accident, a fixed sum of twelve thousand five hundred rupees. (4) The provisions of sub-section (1) of section 166 shall apply for the purpose of making applications for compensation under this section as they apply for the purpose of making applications for compensation referred to in that sub- section. 162. Refund in certain cases of compensation paid under section 161. (1) The payment of compensation in respect of the death of, or grievous hurt to, any person under section 161 shall be subject to the condition that if any compensation (hereafter in this sub-section referred to as the other compensation) or other amount in lieu of or by way of satisfaction of a claim for compensation is awarded or paid in respect of such death or grievous hurt under any other provision of this Act or any other law or otherwise so much of the other compensation or other amount aforesaid as is equal to the compensation paid under section 161 shall be refunded to the insurer. (2) Before awarding compensation in respect of an accident involving the death of, or bodily injury to, any person arising out of the use of a motor vehicle or motor vehicles under any provision of this Act (other than section 161) or any other law, the Tribunal, Court or other authority awarding such compensation shall verify as to whether in respect of such death or bodily injury compensation has already been paid under section 161 or an application for payment of compensation is pending under that section, and such Tribunal, Court or other authority shall, (a) if compensation has already been paid under section 161, direct the person liable to pay the compensation awarded by it to refund to the insurer, so much thereof as is required to be refunded in accordance with the provisions of sub- section (1); (b) if an application for payment of compensation is pending under section 161 forward the particulars as to the compensation awarded by it to the insurer. Explanation.For the purpose of this sub-section, an application for compensation under section 161 shall be deemed to be pending (i) if such application has been rejected, till the date of the rejection of the application, and (ii) in any other case, till the date of payment of compensation in pursuance of the application. 163A. Special provisions as to payment of compensation on structured formula basis.(1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle of the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be. Explanation.For the purposes of this sub-section, permanent disability shall have the same meaning and extent as in the Workmens Compensation Act, 1923 (8 of 1923). (2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person. (3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule. 163B. Option to file claim in certain cases.Where a person is entitled to claim compensation under section 140 and section 163A, he shall file the claim under either of the said sections and not under both. 167. Option regarding claims for compensation in certain cases.Notwithstanding anything contained in the Workmens Compensation Act, 1923 (8 of 1923) where the death of, or bodily injury to, any person gives rise to a claim for compensation under this Act and also under the Workmens Compensation Act, 1923, the person entitled to compensation may without prejudice to the provisions of Chapter X claim such compensation under either of those Acts but not under both. Further, Section 164 empowers the Central Government to make rules for the purpose of carrying into effect the provisions of Chapter XI which include making such rules for (a) the forms to be used for the purpose of the said chapter and (f) the identification by certificates or otherwise of persons or vehicles exempted from the provisions of the Chapter. Learned counsel appearing on behalf of the respondents, however, submitted that uptil now, the Central Government has not framed any such rules as provided under Section 164. Thereafter, Chapter XII deals with Claims Tribunals. Section 165 provides for establishment of Claims Tribunals for the purpose of adjudicating upon claims for compensation in respect of accidents involving a death of, or bodily injury to, persons arising out of or use of motor vehicles, or damages to any property of a third party so arising, or both, and Explanation to sub-section (1) provides that claims for compensation in respect of accidents involving the death of or bodily injury to persons arising out of the use of motor vehicle includes claims for compensation under Section 140 and 163A. Hence, the application claiming compensation under Section 140 or 163A and/or on the right to claim compensation on the principle of fault liability is required to be filed before the Claims Tribunal. Section 166 provides who can make application for such compensation and where it could be filed. Additionally, sub-section (4) of section 166 makes provision that the Claims Tribunal shall treat the report of accidents forwarded to it under sub-section (6) of Section 158 as an application for compensation under the Act and sub-section (6) of section 158 provides for submitting the report to the Claims Tribunal by the officer in charge of the police station as soon as any information regarding any accident involving death or bodily injury to any person is recorded or report under Section 158 is completed by a police officer. Section 168 requires the Claims Tribunal to determine the amount of compensation which appears to it to be just and specify person or persons to whom compensation is to be paid by making an award. Such award shall also specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be. Proviso to sub-section (1) of Section 168 makes it clear that in an application which is filed under Section 165, if there is a claim for compensation under Section 140 in respect of death or permanent disablement of any person, the same is to be disposed of in first place in accordance with provisions of Chapter X (i.e. Sections 140 to 143). Legislative HistoryStatement of Objects and Reasons: From the provisions quoted above, it appears that no specific mention is made that remedy provided under Section 163A is in addition or in the alternative to the determination of compensation on the basis of fault liability. Section 163A was not there in the original Act of 1988. It was inserted by Act No. 54 of 1994 w.e.f. 14.11.1994. Hence, for arriving at the proper conclusion, it would be necessary to cull out legislative intent by referring to the legislative history as well as Objects and Reasons for inserting the said provision. The Law Commission of India in its 119th Report in the Introductory Chapter observed [para 1.6] that previously there was recommendation for inserting provision in the Motor Vehicles Act to extend protection to victims of hit and run accidents where the person liable to pay such compensation or his whereabouts cannot be ascertained after reasonable effort by providing that in such an event, the person entitled to such compensation shall be entitled to receive it from the State. In para 1.7 for introducing provision for no fault liability, the Commission observed as under: By 1980, a wind was blowing that compensation to the victims of motor accidents should be by way of social security and the liability to pay the same must be No-fault liability. The law, as it stands at present, save the provision in Chapter VIIA, inserted by the Motor Vehicles (Amendment) Act, 1982, enables the victim or the dependants of the victim in the event of death to recover compensation on proof of fault of the person liable to pay compensation and which fault caused the harm such as bodily injury or death. In the event of death of a victim of a motor accident and the consequent harm caused to his dependants, the question whether the person responsible for the action causing harm had committed a fault or it was an inevitable accident, is hardly relevant from the point of view of victim or his/her dependants. The expanding notions of social security and social justice envisaged that the liability to pay compensation must be a No-fault liability. Before the Motor Vehicles Act 1939 was repealed by the present Act, the Legislature introduced Chapter VII-A in the Motor Vehicles Act, 1939. While interpreting the said provisions, this Court in Gujarat State Road Transport Corporation, Ahmedabad v. Ramanbhai Prabhatbhai and Another [(1987) 3 SCR 404] referred to the aforesaid recommendations made by the Law Commission and observed thus: - When the Fatal Accidents Act, 1855 was enacted there were no motor vehicles on the roads in India. Today, thanks to the modern civilization, thousands of motor vehicles are put on the road and the largest number of injuries and deaths are taking place on the roads on account of the motor vehicles accidents. In view of the fast and constantly increasing volume of traffic, the motor vehicles upon the roads may be regarded to some extent as coming within the principle of liability defined in Rylands v. Fletcher, [1868] L.R. 3 H.L.330, 340. From the point of view of the pedestrian the roads of this country have been rendered by the use of the motor vehicles highly dangerous. Hit and run cases where the drivers of the motor vehicles who have caused the accidents are not known are increasing in number. Where a pedestrian without negligence on his part is injured or killed by a motorist, whether negligently or not, he or his legal representatives as the case may be should be entitled to recover damages if the principle of social justice should have any meaning at all. In order to meet to some extent the responsibility of the society to the deaths and injuries caused in road accidents there has been a continuous agitation through out the world to make the liability for damages arising out of motor vehicles accidents as a liability without fault. In order to meet the above social demand on the recommendation of the Indian Law Commission Chapter VIIA was introduced in the Act. Sections 92-A to 92-E of the Act are to be found in Chapter VIIA. The Court further observed as under: - This part of the Act is clearly a departure from the usual common law principle that a claimant should establish negligence on the part of the owner or driver of the motor vehicle before claiming any compensation for the death or permanent disablement caused on account of a motor vehicle accident. To that extent the substantive law of the country stands modified. The special provisions contained in section 109-A to section 109-C of the Act providing for a scheme for granting relief to victims or the legal representatives of victims of hit and run motor vehicle accident cases is another novel effort on the part of the Government to remedy the situation created by the modern society which has been responsible for introducing so many fast moving vehicles on roads. Thereafter a Committee to Review the Provisions of Motor Vehicles Act, 1988 and Central Motor Vehicle Rules, 1989 (hereinafter referred to as the Review Committee) was set up by the Government of India in March 1990. The Review Committee in its report suggested changes in a number of provisions in the Act. The Review Committee considered that determination of the claims cases pending before the Claims Tribunal takes a long time. To obviate such delay, proposals were made that finalisation of compensation claims would greatly facilitate to the advantage of claimants, the vehicle owners as well as the insurance companies, if a system of structured compensation can be introduced. Under such scheme the affected party can have the option of their accepting the lump sum compensation as is notified in that scheme of structured compensation or of pursuing his claim through the normal channels. Thereafter, the Review Committee considered the suggestion of General Insurance Corporation that claimants should first file their claims with Motor Accident Claims Tribunals and the insurers be allowed six months time to confirm their prima facie liability subject to defences available under the Act. After such confirmation, the claimants should be required to exercise their option for conciliation under Structured Compensation Formula within stipulated time. Finally, the Committee also observed: Para 4.11.2: .In case a claimant opts for conciliation, necessary consent award may be given by MACT and if he does not opt for it, he may proceed with regular Motor Accidents Claims Tribunal in the usual course. The Committee also recommended that the decision of the insurer to accept liability before the expiry of the stipulated period should be the final one and after it is available it will be open to the insured to claim compensation under the structured compensation. Further, the statement of objects and reasons for amending the Act inter alia mentions that the recommendations of the Review Committee were forwarded to the State Governments for comments and they generally agreed with these recommendations. The draft of the proposals based on the recommendation of the Review Committee and representations from the public were placed before the Transport Development Council for seeking their views in the matter. The Transport Development Council made certain suggestions and the relevant suggestion is,(b) providing adequate compensation to victims of road accidents without going into long drawn procedure. The proposed legislation inter alia provide for (h) increase in the amount of compensation to the victims of hit and run cases; (k) a new pre-determined formula for payment of compensation to road accident victims on the basis of age/income, which is more liberal and rational. The next question iswhether the recommendations made by the Review Committee are reflected in the provisions, which are inserted by the said Act. It is contended that the relevant provisions nowhere provide that lump sum compensation payable under the structured formula basis is alternative and optional to the determination of compensation under Section 168. As stated above, the Legislature has not specified or clarified that compensation payable under Section 163-A is in the alternative or in addition. Therefore, we are referring to the reasons for inserting Section 163A in context of other provisions. For the purpose of interpretation in such cases, this Court in Utkal Contractors and Joinery P. Ltd. & Ors. Vs. State of Orissa & Ors. [(1987) 3 SCC 279] observed that reason for a statute is a safest guide to its interpretation and held thus (P.288-89): - .The reason for a statute is the safest guide to its interpretation. The words of a statute take their colour from the reason for it. How do we discover the reason for a statute? There are external and internal aids. The external aids are Statement of Objects and Reasons when the Bill is presented to Parliament, the reports of committees which preceded the Bill and the reports of Parliamentary Committees. Occasional excursions into the debates of Parliament are permitted. Internal aids are the preamble, the scheme and the provisions of the Act. Having discovered the reason for the statute and so having set the sail to the wind, the interpreter may proceed ahead. No provision in the statute and no word of the statute may be construed in isolation. Every provision and every word must be looked at generally before any provision or word is attempted to be construed. The setting and the pattern are important Again, while the words of an enactment are important, the context is no less important. In this context if we refer to the Review Committees Report, the reason for enacting Section 163A is to give earliest relief to the victims of the motor vehicle accidents. The Committee observed that determination of cases takes long time and, therefore, under a system of structural compensation, the compensation that is payable for different classes of cases depending upon the age of the deceased, the monthly income at the time of death, the earning potential in the case of minor, loss of income on account of loss of limb etc. can be notified and the affected party can then have option of their accepting lump sum compensation under the scheme of structural compensation or of pursuing his claim through the normal channels. The Report of the Review Committee was considered by the State Governments and comments were notified. Thereafter, the Transport Development Council made suggestions for providing adequate compensation to victims of road accidents without going into long drawn procedure. As per the objects and reasons, it is a new pre-determined formula for payment of compensation to road accidents victims on the basis of age/income which is more liberal and rational. On the basis of the said recommendation after considering the Report of the Transport Development Council, the Bill was introduced with a new pre-determined formula for payment of compensation to road accident victims on the basis of age/income which is more liberal and notional, i.e. Section 163A. It is also apparent that compensation payable under Section 163A is almost based on relevant criteria for determining the compensation such as annual income, age of the victim and multiplier to be applied. In addition to the figure which is arrived at on the basis of said criteria, schedule also provides that amount of compensation shall not be less than Rs.50,000/-. It provides for fixed amount of general damage in case of death such as (1) Rs.2000/- for funeral expenses (2) Rs.5000/- for loss of consortium if beneficiary is the spouse (3) Rs.2400/- for loss of estate (4) for medical expenses supported by the bills, voucher not exceeding Rs.15000/-. Similarly, for disability in non- fatal accident para 5 of the Schedule provides for determination of compensation on the basis of permanent disability. Para 6 provides for notional income for those who had no income prior to accident at Rs.15000/- per annum. There is also provision for reduction of 1/3rd amount of compensation on the assumption that the victim would have incurred the said amount towards maintaining himself had he been alive. The purpose of this Section and the Second Schedule is to avoid long drawn litigation and delay in payment of compensation to the victims or his heirs who are in dire need of relief. If such affected claimant opts for accepting the lump-sum compensation based on structured formula, he would get relief at the earliest. It also gives vital advantage of not pleading or establishing any wrongful act or neglect or default of the owner of the offending vehicle or vehicles. This no fault liability appears to have been introduced on the basis of the suggestion of the Law Commission to the effect that the expanding notions of social security and social justice envisage that liability to pay compensation must be no fault liability and as observed by this Court in Ramanbhais case (Supra), in order to meet to some extent the responsibility of the society to the deaths and injuries caused in road accidents. However, this benefit can be availed of by the claimant only by restricting his claim on the basis of income at a slab of Rs.40,000/- which is the highest slab in the Second Schedule which indicates that the legislature wanted to give benefit of no fault liability to a certain limit. This would clearly indicate that the scheme is in alternative to the determination of compensation on fault basis under the Act. The object underlining the said amendment is to pay compensation without there being any long drawn litigation on an predetermined formula, which is known as structured formula basis which itself is based on relevant criteria for determining compensation and the procedure of paying compensation after determining the fault is done away. Compensation amount is paid without pleading or proof of fault, on the principle of social justice as a social security measure because of ever increasing motor vehicles accidents in a fast moving society. Further, the law before insertion of Section 163-A was giving limited benefit to the extent provided under Section 140 for no fault liability and determination of compensation amount on fault liability was taking long time. That mischief is sought to be remedied by introducing Section 163A and the disease of delay is sought to be cured to a large extent by affording benefit to the victims on structured formula basis. Further, if the question of determining compensation on fault liability is kept alive it would result in additional litigation and complications in case claimants fail to establish liability of the owner of the defaulting vehicles. Use of specific words also and in addition in Sections 140 and 141: The aforesaid conclusion gets support from the language used in Sections 140, 141, 161 and 163A. Sections 140 to 143 provide for liability of the owner of the vehicle in case of death or permanent disablement of any person resulting from an accident arising out of use of a motor vehicle or motor vehicles to pay compensation without any pleading or establishing that death or permanent disablement was due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles. By way of earliest relief, victim is entitled to get the amount of compensation of Rs.50,000/- in case of death and Rs.25,000/- in case of permanent disablement. It is further provided that such claim shall not be defeated by reason of any wrongful act, neglect or default of the person in respect of whose death or permanent disablement has occurred. Sub-section (5) of Section 140 upon which much reliance is placed by learned counsel for the Insurance Companies as well as the claimants requires consideration and interpretation, which inter alia provides that owner of the vehicle is also liable to pay compensation under any other law for the time being in force. The word also indicates that the owner of the vehicle would be additionally liable to pay compensation under any other law for the time being in force. The proviso to sub-section (5) further clarifies that the amount of compensation payable under any other law for the time being in force is to be reduced from the amount of compensation payable under sub-section (2) or under section 163A. This is further crystalized in Section 141 which provides that right to claim compensation under Section 140 is in addition to any other right to claim compensation on the principle of fault liability and specifically excludes the right to claim compensation under the scheme referred to in Section 163A. Section 163B also provides that where a person is entitled to claim compensation under Section 140 and Section 163A, he can file the claim under either of the said sections, but not under both. Similarly, Section 141(1) also crystalises that right to claim compensation under Section 140 is in addition to the right to claim compensation in respect thereof under any other provision of the Act or any other law for the time being in force. Sub- section (2) further provides that if the claimant has filed an application for compensation under Section 140 and also in pursuance of any right on the principle of fault liability, the claim for compensation under Section 140 is to be disposed of in the first place and as provided in sub-section (3) the amount received under sub-section (2) of Section 140 is to be adjusted while paying the compensation on the principle of fault liability. On the basis of fault liability if additional amount is required to be paid then the claimant is entitled to get the same but there is no provision for refund of the amount received under Section 140(2), even if the Claims Tribunal arrives at the conclusion that the claimant was not entitled to get any compensation on the principle of fault liability. Further, Section 144 gives overriding effect to the provisions made under Chapter X by providing that the provisions of the chapter shall have effect notwithstanding any thing contained in any provision of the Act or of any other law for the time being in force. From the aforesaid Sections, one aspect is abundantly clear that right to claim compensation on the basis of no-fault liability under Section 140 is in addition to the right to claim compensation on the principle of fault liability or right to get compensation under any other law. Such amount is required to be reduced from the amount payable under the fault liability or compensation which may be received under any other law. If nothing is payable under the Act then the claimant is not required to refund the amount received by him. As against this, there is specific departure in the scheme envisaged for paying compensation under Section 163A. Section 163A nowhere provides that this payment of compensation on no fault liability on the basis of structured formula is in addition to the liability to pay compensation in accordance with the right to get compensation on the principle of fault liability and unless otherwise provided for the same cause, compensation cannot be paid again. Provisions for refund of compensation if compensation is received under any other law or under the Act: Further, as the legislature has not provided for refund or adjustment of compensation received under the Act and compensation payable under Section 163A, it would mean that Scheme of payment of compensation under Section 163A is in alternative to determination of compensation under Section 168. As stated above, sections 140(5) and 141(3) make provisions for reduction of compensation paid under Section 140. Under proviso to sub-Section (5) of Section 140, the amount of such compensation which the claimant is entitled to receive under any other law is required to be reduced from the amount of compensation payable under Section 140 or under Section 163A. Under Section 141(3), if a person gets the compensation on principle of fault liability, then also provision is made for adjustment of compensation received under section 140. There is no such provision for adjustment of compensation received under section 163A from the compensation receivable under the Act on the principle of fault. Similarly, section 161 provides for payment of compensation in case of hit and run motor accidents. Under Section 161(3), in cases in respect of the death of any person resulting from a hit and run motor accident, a fixed sum of Rs.25,000/- is to be paid as compensation and in case of grievous hurt, the amount fixed is Rs.12,500/-. Thereafter, under Section 162, the legislature has provided for refund of compensation paid under Section 161 on the principle of hit and run motor accident by providing that the payment of compensation under Section 161 shall be subject to the condition that if any compensation is awarded under any other provision of this Act or any other law or otherwise, so much amount as is equal to the compensation paid under Section 161 is required to be adjusted or refunded to the insurer. Under section 162(2), duty is cast on the Tribunal, Court or other authority awarding such compensation to verify as to whether in respect of such death or bodily injury, compensation has already been paid under Section 161 and to make adjustment as required thereunder. Result isclaimant is not entitled to have additional compensation but at the same time he can proceed by filing application under Section 165 or under the Workmen Compensation Act (i.e. other law) and if he gets compensation under either of the said provisions, the amount paid under Section 161 is to be refunded or adjusted. The contention of the learned counsel for the claimants that compensation payable under Section 163A is in addition to the determination of compensation on the basis of fault liability and thereafter it could be adjusted on the similar lines provided under Section 140 read with Section 141 or Section 162 cannot be accepted. The Legislature has specifically provided scheme of adjustment of compensation under Section 140 read with Section 141 and Section 162 if the claimants get compensation under the Act, while there is no such provisions under Section 163A. Addition or introduction of such scheme in provisions would be impermissible. Use of different words such asany other law, under this section any other law for the time being in force, provisions of this Act or any other provision of this Act in different sections: The learned counsel for the claimants submitted that the proviso to sub-section (5) of Section 140 would mean that even in case where compensation is determined under the structured basis formula under Section 163A, the claimant is entitled to claim compensation on the basis of fault liability and if he gets higher amount on the basis of fault liability then from that amount compensation which is paid under Section 163A is to be reduced. At the first blush the argument of the learned counsel appears to be attractive as the proviso to sub-section (5) of section 140 is to some extent ambiguous and vague. It may mean that amount of compensation given under any other law may include the amount payable on the basis of fault liability, therefore, in view of said proviso compensation amount payable under any other law is to be reduced from the compensation payable under Section 140 or 163A. For appreciating this contention and for ascertaining appropriate meaning of the phrase compensation under any other law for the time being in force, the proviso to sub-section (5) is required to be considered along with other provisions. The scheme of other provision section 167 indicates that the aforesaid phrase is referable to compensation payable under the Workmens Compensation Act, 1923 or any other law which may be in force but not to the determination of compensation under the Act, and would not include the compensation which is determined under the provision of the Act. This section 167 in terms provides that where death of, or bodily injury to, any person gives rise to claim compensation under the Act and also under Workmens Compensation Act, 1923, such person cannot claim compensation under both the Acts. Further, in Section 140(5), the legislature has used the words under any other law for the time being in force and under any other law. In Section 141 (1), the legislature has used the phrase under any other provision of this Act or of any other law for the time being in force. In sub-section (2), the legislature has specifically provided that a claim for compensation under Section 140 shall be disposed of as expeditiously as possible and where compensation is also claimed in pursuance of any right on principle of fault, the application under Section 140 is to be disposed of in first place. Whereas, there is no such reference for payment of compensation under Section 163A. Further, in Section 161(2), the legislature has used the phrase any other law for the time being in force and provisions of this Act. Similarly, in Section 162, the legislature has used the words under any other provisions of this Act or any other law or otherwise. As against this, in Section 163A, legislature has used the phrase notwithstanding anything contained in this Act or in any other law for the time being in force. When the Legislature has taken care of using different phrases in different sections, normally different meaning is required to be assigned to the language used by the Legislature unless context otherwise requires. However, in relation to the same subject matter, if different words of different import are used in the same statute, there is presumption that they are not used in the same sense. {Re: Board of Revenue v. Arthur Paul AIR 1956 SC 35 at 38}. In this light, particularly Section 141 which provides for right to claim compensation under any other provision of this Act or of any other law for the time being in force, proviso to sub-section (5) of Section 140 would mean that it does not provide for deduction or adjustment of compensation payable under the Act, that is, on the principle of fault liability which is to be determined under Section 168. Specific Language of Section 163A including its heading: Lastly, for interpretation and construction of Section 163A, we would refer to its heading and language. The heading is Special provisions as to payment of compensation on structured formula basis. At the outset, we would make it clear that for interpretation of the words of Section the language of the heading cannot be used to control the operation of the Section, but at the same time being part of the statute it prima-facie furnishes some clue as to the meaning and purpose of Section. [Re: K.P. Varghese v. ITO [(1982) 1 SCR p.629 at 647]. In case of ambiguity or doubt heading can be referred to as an aid in construing the provision. This heading indicates that the legislature has envisaged special provision for paying compensation on structural formula basis instead of paying the compensation by long drawn litigation after establishing fault liability. Section also begins with non-obstante clause notwithstanding anything contained in this Act or any law for the time being in force. This would mean that it is not subject to any adjudication of right to claim compensation as provided under the Act. The owner of the motor vehicle or the authorised insurer would be liable to pay compensation due to accident arising out of the use of motor vehicle. Section 163-B further clarifies that claim petition can be filed either under Section 140 or under Section 163A but not under both sections. The learned counsel for the claimants however submitted that if we compare the language used in Sections 163A and 140(1), it would be apparent that Section 140 contemplates payment of compensation by the owner of the vehicle. As against this, Section 163A contemplates payment of compensation by the owner of the vehicle or authorised insurer. It is submitted that even if we read the said phrase as owner of the motor vehicle of authorised insurer as owner of the motor vehicle or authorised insurer on the assumption that of is wrongly used, then also it is their contention that Section 163A envisages payment either by the authorised insurer or by the owner of the motor vehicle. It has wider implication and, therefore, compensation beyond maximum of Rs.50000/- is provided in Second Schedule and hence the payment under Section 163A should not be considered as alternative to payment of compensation under the fault liability. In our view, it is true that Section 140 talks of payment of compensation by the owner of the vehicle, while Section 163A after reading of as or would mean that owner of the vehicle or the authorised insurer would be liable to pay compensation under Section 163A. But that would not make any difference because determination of compensation under Section 163A is final and not as an interim measure. As stated above, the legislature has deliberately not provided that it is in addition to the compensation payable on the principle of fault liability. There is no provision for adjusting the compensation payable under Section 163A with the other payment on fault liability under the Act. In the result, the contention of the claimants that right to get compensation under Section 163A is additional to claim compensation on no fault liability is rejected for the following reasons: - (1) There is no specific provision in the Act to the effect that such compensation is in addition to the compensation payable under the Act. Wherever the Legislature wanted to provide additional compensation, it has done so. [Sections 140 and 141] (2) In case where compensation is paid on no fault liability under sections 140 and 161 in case of hit and run motor accidents, the Legislature has provided adjustment or refund of the said compensation in case where compensation is determined and payable under the award on the basis of fault liability under section 168 of the Act. There is no such procedure for refund or adjustment of compensation paid where the compensation is paid under Section 163A. (3) The words under any other law for the time being in force would certainly have different meaning from the words under this Act or under any other provision of this Act (4) In view of the non-obstante clause notwithstanding anything contained in this Act the provisions of Section 163A would exclude determination of compensation on the principle of fault liability. (5) The procedure of giving compensation under Section 163A is inconsistent with the procedure prescribed for awarding compensation on fault liability. Under section 163A compensation is awarded without proof of any fault while for getting compensation on the basis of fault liability claimant is required to prove wrongful act, neglect or default of the owner of the vehicle or vehicles concerned. (6) Award of compensation under section 163A is on predetermined formula for payment of compensation to road accident victims and that formula itself is based on criteria similar to determining the compensation under section 168. The object was to avoid delay in determination of compensation. In the result, the question involved in these matters is answered accordingly. The appeals filed by the Insurance Companies are allowed and the impugned judgments and orders are quashed and set aside. However, there will be no order as to costs. Before parting with the judgment, we would like to draw the attention of the Central Government for revision and appropriate correction of the Second Schedule, which provides for payment of compensation on structured formula basis, by exercise of its power under Section 163A(3). The learned counsel for the parties submitted that in U.P. State Road Transport Corporation and others v. Trilok Chandra and others [(1996) 4 SCC 362 Para 18] this Court has pointed out errors in the Second Schedule thus: We must at once point out that the calculation of compensation and the amount worked out in the Schedule suffers from several defects. For example, in Item 1 for a victim aged 15 years, the multiplier is shown to be Rs.3000. The total should be 3000x 15=45,000 but the same is worked out at Rs.60,000. Similarly, in the second item the multiplier is 16 and the annual income is Rs 9000; the total should have been Rs.1,44,000 but is shown to be Rs.1,71,000. To put it briefly, the table abounds in such mistakes. Neither the tribunals nor the courts can go by the ready reckoner. It can only be used as a guide. Besides, the selection of multiplier cannot in all cases be solely dependant on the age of the deceased. For example, if the deceased, a bachelor, dies at the age of 45 and his dependants are his parents, age of the parents would also be relevant in the choice of the multiplier. But these mistakes are limited to actual calculations only and not in respect of other items. What we propose to emphasize is that the multiplier cannot exceed 18 years purchase factor. This is the improvement over the earlier position that ordinarily it should not exceed 16. We thought it necessary to state the correct legal position as courts and tribunals are using higher multiplier as in the present case where the Tribunal used the multiplier of 24 which the High Court raised to 34, thereby showing lack of awareness of the background of the multiplier system in Davies v. Powell Duffryn Associated Collieries Ltd., [1942 AC 601 : (1942) 1 All ER 657]. In addition, the learned counsel also pointed out that in case of fatal accident and disability in non-fatal accident, it has been provided that notional income for the claimant who had no income prior to accident shall be Rs.15000/- per annum and still however the Second Schedule provides table of income ranging from Rs.3000/- to Rs.40000/- and the brake-up also does not provide any calculation for Rs.15000/-, as the columns in the Schedule inter alia provide for compensation for a person having income of Rs.12000/-, and thereafter straightway at Rs.18000/-. The learned counsel also submitted that despite the specific provision in Section 163A(3) that the Central Government may, keeping in view the cost of living, by notification in Official Gazette from time to time amend the Schedule, nothing has been done so far. Further, by order dated 30.8.2000, this Court again noticed number of anomalies in the Second Schedule and, therefore, thought it fit to have assistance of either the Attorney General of India or the Solicitor General of India. When the matter was called out on 15.12.2000, Mr. Altaf Ahmad, ASG, stated before the Court that the order passed by this Court on 30.8.2000 has already engaged serious attention of the Ministry of Surface Transport Department and the Government was considering the matter for bringing necessary correction in the Second Schedule of the Motor Vehicles Act. Thereafter, we again sought assistance of the Additional Solicitor General on the interpretation of Section 163A and also to verify whether there are corrections in the Second Schedule. Learned Additional Solicitor General stated that amendment might take some time. In this view of the matter, we think it would be appropriate if the Central Government takes necessary action as early as possible under Section 163A(3). 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{"id": "39503956", "text": "C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.12.2019 CORAM: THE HONOURABLE MS.JUSTICE S.M.SUBRAMANIAM C.M.P.No.15283 of 2019 in AS.SR.No.85894 of 2019 Pachiyammal .. Appellant Vs. Duraisamy ..Respondent PRAYER: C.M.P.No.15283 of 2019 is filed under Section 5 of the Limitation Act, to condone the delay of 455 days in filing the appeal Suit in AS.SR.No.85894/2019. AS.SR.No.85894/2019 is filed under Section 96 of Civil Procedure Code, against the Judgment and Decree dated 22.11.2017 passed in O.S.No.166 of 2015 on the file of the II Additional District Judge, Puducherry. For Appellant : Mr.Sasindran K. For Respondent : Mr.S.Vadivel 1/34 C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 JUDGMENT Law of Limitation being a substantive law, the Courts are bound to follow the principles, while condoning the delay, which is otherwise enormous. Huge delay cannot be condoned in a routine manner by the Courts. Courts have to exercise the discretionary powers judiciously and cautiously and in the event of exercising the discretionary power to condone the enormous delay, then the reasons must be recorded. In the absence of any acceptable reasons, huge delay cannot be condoned at all. Law of limitation being a substantive law, the rule is to file appeals in time. Condoning the delay by exercising a discretionary power is an exception. Thus, the exception cannot be made as a rule as if the delay in huge can be condoned in a routine manner. This being the basic principles to be adopted by the Courts for the purpose of condoning the huge delay, this Court is of an opinion that the delay of 455 days, which is improperly explained is to be construed as an uncondonable delay. 2. Reasons stated in the present petition for condoning the C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 delay is narrated in paragraphs 4 and 5 of the affidavit filed in support of the miscellaneous petition. In paragraph 4, the petitioner has stated that she enquired about the status of her case and her Advocate used to say that the case is pending and he would call her, as and when required. The very statement is questionable in view of the fact that the petitioner herself participated in the trial and defended her case throughout the trial. Further, it is stated in the affidavit that the petitioner was under the impression that the suit was pending. While so, she came to know that the respondent has filed execution proceedings. In the above case, after receipt of notice in the execution petition, she contacted her advocate and enquired about the issue of letter. She came to know that the suit was decreed on 22.12.2017. Except by blaming the Advocate, in respect of the informations provided by the learned counsel, the petitioner has not furnished any acceptable ground for the purpose of condoning the delay of 455 days in filing the appeal suit. In Paragraph 5 of the affidavit, the petitioner has stated that she was in financial crisis and could not able to mobilize funds for the purpose of paying the Court fee and for filing the appeal suit before the High Court. The insufficient funds cannot be considered as a C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 valid ground for the purpose of condoning a huge delay. Even in such cases, the appeals can be filed in time and within the permissible time limit. The Court fee can be paid or the petitioner, if pauper, then appropriate application can be filed. Contrarily, the reason of insufficient funds cannot be a ground to condone the delay of 455 days in filing the appeal suit. 3. The legal principles to be followed for condoning the delay is well settled and this Court also considered the said principles in C.M.P.Nos.8358 & 8359 of 2018 in AS.SR.No.32087 of 2018 dated 09.12.2019 and the relevant paragraphs are extracted as under: \u201c10. In respect of said contentions, the learned counsel appearing on behalf of the respondent cited the judgment of this Court in the case of Zulaiha Syed Mohideen Vs. D.Visalakshi Ammal & Others reported in MANU/TN/2222/2013, wherein the Court made following observations; \u201c5.Before going into the merits of the case, first of all, it should be stated that in a case of this nature for condonation of delay, it is well settled that length of delay is not material, but the reasons stated thereof for C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 condonation of delay. In other words, for condonation of delay, the reasons adduced must be properly pleaded, convincing and acceptable and explanation should be offered for condonation of the delay. Unless proper explanation is offered, the Courts could not exercise its discretion in the proper perspective to advance substantial justice. It is also settled that when a court has exercised its discretionary power to condone the delay, the appellate Court, in exercise of its discretion, should not ordinarily interfere with such decision unless the discretion exercised is arbitrary and overlooking the interest accrued to another party to the dispute. The appellate Court should also see whether the trial court has taken into consideration all the aspects of the matter, the advantage or disadvantage that may be caused to the other side while condoning the delay inasmuch as during the interregnum, the other party could have asserted a vested right. With this background, let us analyse the merits of the rival contentions urged by the counsel for both sides. 6 to 11....... 12.On behalf of the revision petitioner, several decisions were cited. The learned counsel for the respondents objected for relying on the decisions by stating that they relate to condonation of delay in filing a petition and not with respect to condonation of delay in re- presenting a petition. Such an argument of the counsel for the respondents cannot be countenanced. Each and every C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 case depends on the facts and circumstances of that case. Further, the issue involved in this case is whether the delay in filing a petition has been properly explained and sufficient cause has been shown for the delay or not and in support of the same, the learned counsel for the revision petitioner has relied on the following decisions:- (i) In (Kandaswamy and four others vs. Krishnamandiram Trust, Karur, by its Trustees and 33 others) 2001 (4) CTC 722 this Court took note of the fact that the conduct of the revision petitioner in keeping quite for over two years only on account of inability to mobilise other petitioner evidences would amount to gross negligence, irresponsible inactive attitude and therefore the petitioner lacks bonafides. Under those circumstances, this Court refused to condone the delay of 797 days in filing a petition to set aside the exparte decree. In the above case, this Court also referred to the decision of the Honourable Supreme Court reported in (M.K Prasad vs. P. Arumugam) (2001) 6 Supreme Court Cases 176, which was relied on by the learned counsel for the respondents (ii) In (Sundar Gnanaolivu rep. by his power of attorney agent Mr. Rukmini vs. Rajendran Gnanavolivu, rep. by its power of attorney agent Veina Gnanavalivu) 2003 1 Law Weekly 585, the Division Bench of this Court held that when the averments in the affidavit are untrue, lacks bona fides, then the case falls within the exception to the Rule of Liberal approach and it does not deserve the C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 liberal approach formula in matters relating to condonation of delay. In this case also, the Division Bench of this Court followed the decision of the Honourable Supreme Court reported in (M.K Prasad vs. P. Arumugam) (2001) 6 Supreme Court Cases 176, which was relied on by the learned counsel for the respondents. In Para Nos. 14-A and 15, the Division Bench of this Court held thus:- 14-A. In yet another Division Bench Judgment reported in (1990) 1 LLN 457 (Tamil Nadu Mercantile Bank Limited, Tuticorin versus Appellate Authority under the Tamil Nadu Shops and Establishments Act, Madurai and another) the principles relating to Rule of limitation have been discussed and the legal position has been stated by His Lordship Mr. Justice M. Srinivasan, as he then was, in paragraphs 14 and 17, which read as under:- \"14. .....If a litigant chooses to approach the Court long after the time prescribed under the relevant provisions of the law, he cannot say that no prejudice would be caused to the other side by the delay being condoned. The other side would have in all probability destroyed the records thinking that the records would not be relevant as there was no further proceeding in the matter. Hence, to view a matter of condonation of delay, with a presupposition that no prejudice will be caused by the condonation of delay to the respondent in that application will be fallacious. In our view, each has to be decided on C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 the facts and circumstances of the case. Length of the delay is a relevant matter to be taken into account, while considering whether the delay should be condoned or not. It is not open to any litigant to fix his own period of limitation for instituting proceedings for which law has prescribed periods of limitation. \"17. .....Once it is held that a party has lost his right to have the matter considered on merits because of his own inaction for a long time, it cannot be presumed to be non-deliberate delay, and in such circumstances of the case, he cannot be heard to plead that substantial justice deserved to be preferred as against technical considerations. WE are of the view that the question of limitation is not merely a technical consideration. Rules of limitation are based on principles of sound public policy and principles of equity. Is a litigant liable to have a Damocles' sword hanging over his head indefinitely for a period to be determined at the whims and fancies of the opponent (underlining is ours) 15. On a conspectus reading of the above principles set out in the various judgments, it is well settled that a liberal approach should be extended while considering the application for condonation of delay. Sufficient caution has been exhibited to note that wherever there is lack of bona fides or attempt of hood-wink the Court by the party concerned who has come forward with an application for condonation of delay, in such cases, no indulgence should C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 be shown by condoning the delay applied for. It is also clear to the effect that it is not the number of days of delays that matters, but the attitude of the party which caused the delay. In other words when the Court finds that the party who failed to approach the Court within the time stipulated comes forward with an explanation for condoning the delay, the Court if satisfied that the delay occasioned not due to the deliberate conduct of the party, but due to any other reason, then by sufficiently compensating the prejudice caused to the other side monetarily, the condonation of delay can be favourably ordered.\" (iii) In the decision of this Court reported in (G. Jayaraman vs. Devarajan) 2007 (2) CTC 643, this Court held in a case where there was a delay of 553 days in filing an application to set aside the decree that discretion must not be exercised in an arbitrary or vague manner but must be exercised with vigilance and circumspection. It was further held that delay cannot be condoned as a matter of judicial generosity and the right accrued to the other side ought to be kept in view while considering the plea relating to affording opportunity to advance substantial justice. The facts involved in that case is identical to the facts of the case on hand. In that case, the decree holder was prevented from enjoying the fruits of the decree for about 8 years because of the filing of one petition after the other by the defendants to successfully stall the execution of the decree. In that context, this Court held that liberal C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 approach theory would cause prejudice to the plaintiff/decree holder and the discretion exercised by the trial court to condone the delay of 553 days cannot be sustained. In Para Nos. 9, 10 and 16, this Court held as follows:- \"9. Of course, it is the consistent view taken by the Supreme Court in various decisions that \"sufficient cause\" appearing in Section 5 of the Limitation Act should be liberally considered and the Court should be slow in shutting the door of justice to a litigant on the score of limitation. When the reason for the delay is properly explained, the Court is to adopt a pragmatic approach to condone the delay when there is no negligence, inaction or want of bona fide on the part of the Applicant. 10. At the same time, the discretion must be exercised in any arbitrary or vague or fanciful manner, but must be exercised like any other judicial discretion with vigilance and circumspection. Delay cannot be condoned as a matter of judicial generosity. Where delay could have been avoided by due care and caution, the Court may not exercise the discretion to condone the delay. 16. As stated earlier, delay cannot be excused as a matter of judicial generosity. Rendering substantial justice is not to cause prejudice to the opposite party. Money suit was filed way back in 1998 and Revision petitioner/plaintiff has been pursuing the matter for nearly 7 to 8 years. The matter could not reach finality because of one Application C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 or other filed by the respondent/Defendant. The party claiming indulgence must prove that he is reasonably diligent in prosecuting the matter. This test for condoning the delay is not satisfied in this case. Liberal exercise of jurisdiction under Section 5 of the Act would cause prejudice to the plaintiff/Decree holder, who has been pursuing the money suit for quite a long time. In condoning the delay, there is improper exercise of discretion, and therefore, the impugned order cannot be sustained.\" (iv) In (Shanmugam vs. Chokkalingam) 2009 (5) CTC 48 this Court held that the petitioner therein do not deserve indulgence inasmuch as the averments made by him in the affidavit are false and untrue. Under those circumstances, this Court refused to condone the delay of 332 days in filing a petition to set aside the exparte decree. (v) In (Oriental Aroma Chemical Industries Limited vs. Gujarat Industrial Development Corporation and another) 2010 AIR SCW 1788 the Honourable Supreme Court rejected an application for condonation of delay of 4 years in filing an application to set aside an exparte decree on the ground that the explanation offered for condonation of delay is found to be not satisfied. (vi) In the decision of this Court reported in (K.M. Balasubramaniam vs. C. Loganathan and another) 2011 (2) MWN (Civil) 741 this Court had an occasion to consider a case for condonation of delay of 1581 days in re-presenting an application to set aside the exparte decree. In that case, C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 the suit was filed for recovery of money which was decreed exparte and the Execution Petition filed by the decree holder was also ordered exparte. Thereafter, the decree holder obtained sale certificate also and at the time of taking delivery of the property, the petitioner therein filed the application to condone the delay of 1581 days in setting aside the exparte decree. In that case also, a Petition under Section 47 of the CPC was filed stating that the decree is not executable. In the above facts and circumstances, this Court held that the delay offered for condonation of delay is not proper and acceptable. In Para Nos. 18 and 19, it was held as follows:- 18. It is not in dispute that the suit was filed based on a pro-note dated 01.08.1999 and the ex parte decree was passed on 08.09.2004, nearly 7 years back. It is an admitted fact that the Petitioner appeared in the suit as well as in the earlier E.P. No. 87 of 2005 through Counsel, however, the alleged petition filed under Order 9, Rule 13, C.P.C. to set aside the ex parte decree was not represented for more than four years and four months. Though arrest was ordered in the earlier E.P., however, as the petitioner evaded service, the E.P. was closed, then the present Execution Petition in E.P. No. 292 of 2006 was filed against the property belongs to the petitioner. Notice was served properly on the petitioner/judgment debtor and after proclamation of sale, property was sold in public auction. The successful bidder, a third party to the Suit paid the C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 entire amount. As the sale was confirmed and Sale certificate was also issued, the amount deposited by the auction purchaser was withdrawn by the decree-holder by filing a petition before the Court below and full satisfaction was recorded. At this stage, the petitioner is not entitled to seek an order to condone the inordinate delay of 1581 days in representing an unnumbered Application, seeking an order to set aside the exparte. It cannot be disputed that the length of delay is not a matter for deciding the petition filed under Section 5 of Limitation Act and rendering substantial justice is the paramount consideration. 19. In the instant case, it is clear that the Petitioner/Judgment Debtor has deliberately adopted delay tactics at various stages. Having appeared through Counsel in the earlier Execution Petition in E.P. No. 87 of 2005, evaded arrest and has not challenged various orders passed in the Execution Petitions has casually filed the Application before the court below to condone the delay in representing an Application filed under Order 9, Rule 13, C.P.C. and also filed a Petition under Section 47, C.P.C. which would show that it is an abuse of process of law, as argued by the learned counsel for the Respondents. On the aforesaid circumstances, I could find no merit in favour of the petitioner to allow the inordinate delay of 1581 days in representing an unnumbered Application, seeking an order to set aside the ex parte decree. As found by the Court C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 below, the inordinate delay has not been satisfactorily explained by the Petitioner herein. While deciding the Petition, this Court has to consider the substantial justice. I am of the view that allowing the petition would render only injustice to the Second respondent/auction purchaser, who was impleaded by the order of this Court in this Revision and the first respondent/decree holder, hence, to meed the ends of justice, the Civil Revision Petition is liable to be dismissed, as an abuse of process of law by the Petitioner herein.\" (vii) In (Postmaster General and others vs. Living Media India Limited and another) (2012) 3 SCC 563, the Honourable Supreme Court, while dismissing the application for condonation of delay of 427 days in filing the Special Leave Petition, held condonation of delay is not an exception and it should not be used as an anticipated benefit for the government departments. In that case, the Honourable Supreme Court held that unless the Department has reasonable and acceptable reason for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red tape in the process cannot be accepted. In Para Nos. 25, 26, 27, 28, and 29, the Honourable Supreme Court dealt with the scope of 'sufficient cause' and held as follows:- 25. We have already extracted the reasons as C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 mentioned in the \"better affidavit\" sworn by Mr. Aparajeet Pattanayak, SSRM, Air Mail Sorting Division, New Delhi. It is relevant to note that in the said affidavit, the Department has itself mentioned and is aware of the date of the judgment of the Division Bench of the High Court in Office of the Chief Postmaster vs. Living Media Limited as 11.09.2009. Even according to the deponent, their counsel had applied for the certified copy of the said judgment only on 08.01.2010 and the same was received by the Department on the very same day. There is no explanation for not applying for the certified copy of the impugned judgment on 11.09.2009 or at least within a reasonable time. The fact remains that the certified copy was applied for only on 08.01.2010 i.e., after a period of nearly four months. 26. In spite of affording another opportunity to file better affidavit by placing adequate material, neither the Deponent nor the person-in-charge has filed any explanation for not applying the certified copy within the prescribed period. The other dates mentioned in the affidavit which we have already extracted, clearly show that there was delay at every stage and except mentioning the dates of receipt of the file and the decision taken, there is no explanation as to why such delay had occasioned. Though it was stated by the Department that the delay was due to unavoidable circumstances and genuine difficulties, the fact remains that from day one the Department or the C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 person/persons concerned have not evinced diligence in prosecuting the matter to this Court by taking appropriate steps. 27. It is not in dispute that the person (s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us. 28. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bona fides, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody, including the Government. 29. In our view, it is the right time to inform all the C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for the government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.\" 11.In the case of Sundar Gnanaolivu Vs. Rajendran Gnanavolivu reported in MANU/TN/2123/2003, the Division Bench made following observations; \u201c8. In the judgment reported in MANU/SC/0573/1998 : 1998 (2) CTC 533 (N. Balakrishnan versus M. Krishnamurthy), the position has been set out as under in para 14: 14. It must be remembered that in every case of delay there can be some lapse 'on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 mala fides or it is put-forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation.... (Underlining is ours) 9. In the Judgment reported in MANU/SC/0398/2001 : 2001(6) SCC 176 M.K. Prasad versus P. Arumugam), it has been held as under in para 9. 9.Again in State of W.B. v. Administrator, Howrah Municipality and G. Ramegowda Major v. Special Land Acquisition Officer this Court observed that the expression \"sufficient cause\" in Section 5 of the Limitation Act must receive a liberal construction so as to advance substantial justice and generally delays be condoned in the interest of justice where gross negligence or deliberate inaction or lack of bona fides is not imputable to the party seeking condonation of delay. Law of limitation has been enacted to serve the interests of justice and not to defeat it. Again in N. Balakrishnan v. M. Krishnamurthy this Court held that acceptability of explanation for the delay is the sole criterion and length of delay is not relevant, in the absence of anything showing mala fide or deliberate delay as a dilatory tactic, the court should normally condone the delay.... (Underlining is ours) C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 10.In a recent Judgment of the Honourable Supreme Court reported in MANU/SC/0135/2002 : 2002(3) SCC 195 = 2002-3-L.W.417 (Ram Nath Sao @ Ram Sahu & Others versus Gobardhan Sap & Others), the position has been succinctly set out in para 12 which reads as under: 12. ...Acceptance of explanation furnished should be the rule and refusal, an exception, more so when no negligence or inaction or want of bona fides can be imputed to the defaulting party. On the other hand, while considering the matter the courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine-like manner.... (Underlining is ours) 11. In the Division Bench Judgment of our High Court, in the Judgment reported in MANU/TN/0252/2000 : 2000 (3) CTC 727 = 2000 3 L.W. 938 (C. Subraniam versus Tamil Nadu Housing Board rep. by its Chairman And Managing Director), the position has been stated as under in para 31: 31. To turn up the legal position, (1) the work \"sufficient cause\" should receive liberal construction to do substantial justice; (2) what is \"sufficient cause\" is a question of fact in a given circumstances of the case; (3) it is axiomatic that condonation of delay is discretion of the Court; (4) length of delay is no matter, but acceptability of the explanation is the only criterion' (5) once the Court accepts the explanation as \"sufficient\", it is the result of positive C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 exercise of discretion and normally the superior court should not disturb in such finding unless the discretion was exercised on wholly untenable or perverse; (6) The rules of limitation are not meant to destroy the rights of the parties but they are meant to see that the parties do not resort to dilatory tactics to seek their remedy promptly; (7) Unless a party shows that he/she is put to manifest injustice or hardship, the' discretion exercised by the lower Court is not liable to be revised; (8) If the explanation does not smack of mala fides or it is put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor; (9). If the delay was occasioned by party deliberately to gain time, then the court should lean against acceptance of the explanation and while condoning the delay, the Court should not forget the opposite party altogether. 13. In yet another Division Bench Judgment reported in 1990 (1) LLN 457 (Tamil Nadu Mercantile Bank Ltd. Tuticorin versus Appellate Authority Under The Tamil Nadu Shops And Establishments Act, Madurai And Another), the principles relating to rule of limitation have been discussed and the legal position has been stated by His Lordship Mr. Justice M. Srinivasan, as he then was, in paragraphs 14 and 17 which read as under: 14. ...If a litigant chooses to approach the Court long after the time prescribed under the relevant provisions of the law, he cannot say that no prejudice would be caused to the other side by the delay being condoned. The other side C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 would have in all probability destroyed the records thinking that the records would not be relevant as there was no further proceeding in the matter. Hence to view a matter of condonation of delay with a presupposition that no prejudice will be caused by the condonation of delay to the respondent in that application will be fallacious. In our view, each case has to be decided on the facts and circumstances of the case. Length of the delay is a relevant matter to be taken into account while considering whether the delay should be condoned or not. It is not open to any litigant to fix his own period of limitation for instituting proceedings for which law has prescribed periods of limitation. 17. ...Once it is held that a party has lost his right to have the matter considered on merits because of his own inaction for a long time, it cannot be presumed to be non- deliberate delay, and in such circumstances of the case, he cannot be heard to plead that substantial justice deserved to be preferred as against technical considerations. We are of the view that the question of limitation is not merely a technical consideration. Rules of limitation are based on principles of sound public policy and principles of equity. Is a litigant liable to have a Damocles' sword hanging over his head indefinitely for a period to be determined at the whims and fancies of the opponent? (Underlining is ours) 14. On a conspectus reading of the above principles set out C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 in the various judgments, it is well settled that a liberal approach should be extended while considering the application for condonation of delay. Sufficient caution has been exhibited to note that wherever there is lack of bona fides or attempt to hood-wink the Court by the party concerned who has come forward with an application for condonation of delay, in such cases, no indulgence should be shown by condoning the delay applied for. It is also clear to the effect that it is not the number of days of delay that matters, but the attitude of the party which caused the delay. In other words when the Court finds that the party who failed to approach the Court within the time stipulated comes forward with an explanation for condoning the delay, the Court if satisfied that the delay occasioned not due to the deliberate conduct of the party, but due to any other reason, then by sufficiently compensating the prejudice caused to the other side monetarily, the condonation of delay can be favorably ordered. The Division Bench in the above said case made an observation that a liberal approach should be extended while considering the application for condonation of delay. Sufficient caution has been exhibited to note that wherever there is a lack of bonafides or attempt to hoodwink the Court by the party concerned who has come forward with C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 an application for condonation of delay, in such cases, no indulgence should be shown by condoning the delay applied for. It is observed that question of limitation is not merely a technical consideration but based on principles of sound public policy as well as equity and that a litigant cannot be expected to have Damocles' sword hanging over his had indefinitely for a period to be determined at the whims and fancies of the opponent. 12. Thus, the Courts have taken a clear view that the intention of the parties in filing appeal belatedly after causing prejudice to the interest of the other parties, then also the delay cannot be condoned by exercising the power of discretion. Therefore all these aspects are to be considered. Mechanical or routine approach is impermissible, may be permissible in respect of the delay of short span and not otherwise. 13. In the case of Lanka Venkateswarlu (D) by L.R.s Vs. State of A.P. & others reported in C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 MANU/SC/0153/2011, the Hon\u2019ble Supreme Court made an observation as follows; \u201c20. In the case of M. Balakrishnan (supra), this Court again reiterated the principle that rules of limitation are not meant to destroy the rights of parties. They are meant to see that the parties do not resort to dilatory tactics, but seek their remedy promptly. 21 to 25......... 26.We are at a loss to fathom any logic or rationale, which could have impelled the High Court to condone the delay after holding the same to be unjustifiable. The concepts such as \"liberal approach\", \"justice oriented approach\", \"substantial justice\" can not be employed to jettison the substantial law of limitation. Especially, in cases where the Court concludes that there is no justification for the delay. In our opinion, the approach adopted by the High Court tends to show the absence of judicial balance and restraint, which a Judge is required to maintain whilst adjudicating any lis between the parties. We are rather pained to notice that in this case, not being satisfied with the use of mere intemperate language, the High Court resorted to blatant sarcasms. The use of unduly strong intemperate or extravagant language in a judgment has been repeatedly disapproved by this Court in a number of cases. Whilst considering applications for condonation of delay under Section 5 of the C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 Limitation Act, the Courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law. The discretion has to be exercised in a systematic manner informed by reason. Whims or fancies; prejudices or predilections can not and should not form the basis of exercising discretionary powers.\" 14. In the case of Pundlik Jalam Patil (D) by Lrs. Vs. Exe.Eng.Jalgaon Medium Project & others reported in MANU/SC/4694/2004, the Hon\u2019ble Supreme Court held as follows: \u201c15. In Ajit Singh Thakur Singh and anr. vs. State of Gujarat [ (1981) 1 SCC 495 ] this court observed : \"It is true that a party is entitled to wait until the last day of limitation for filing an appeal. But when it allows limitation to expire and pleads sufficient cause for not filing the appeal earlier, the sufficient cause must establish that because of some event or circumstance arising before limitation expired it was not possible to file the appeal within time. No event or circumstance arising after the expiry of limitation can constitute sufficient cause.\" (Emphasis supplied) This judgment squarely applies to the facts in hand. C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 17. Shri Mohta, learned senior counsel relying on the decision of this court in N. Balakrishnan vs. M.Krishnamurthy [(1998) 7 SCC 123] submitted that length of delay is no matter, acceptability of explanation is the only criterion. It was submitted that if the explanation offered does not smack of mala fides or it is not put forth as part of dilatory tactics the court must show utmost consideration to the suitor. The very said decision upon which reliance has been placed holds that the law of limitation fixes a life span for every legal remedy for the redress of the legal injury suffered. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of Limitation is thus founded on public policy. The decision does not lay down that a lethargic litigant can leisurely choose his own time in preferring appeal or application as the case may be. On the other hand, in the said judgment it is said that court should not forget the opposite party altogether. It is observed: \"It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.\" 18. In Ramlal and others vs. Rewa Coalfields Ltd. C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 [ AIR 1962 SC 361], this court held that: \"in construing Section 5 of the Limitation Act, it is relevant to bear in mind two important considerations. The first consideration is that the expiration of period of limitation prescribed for making an appeal gives rise to right in favour of the decree holder to treat the decree as binding between the parties and this legal right which has accrued to the decree holder by lapse of time should not be light heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause of excusing delay is shown discretion is given to the court to condone the delay and admit the appeal. `It is further necessary to emphasis that even if the sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the court by section 5. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage the diligence of the party of its bona fides may fall for consideration.\" On the facts and in the circumstances, we are of the opinion that the respondent beneficiary was not diligent in availing the remedy of appeal. The averments made in the application seeking condonation of delay in filing appeals do not show any acceptable cause much less sufficient cause to exercise courts' discretion in its favour.\" C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 15. In the case of Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy & Others reported in MANU/SC/0932/2013, the Hon\u2019ble Apex Court of India made an observation as follows: \u201c15. From the aforesaid authorities the principles that can broadly be culled out are: i) There should be a liberal, pragmatic, justice-oriented, non- pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice. ii) The terms sufficient cause should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact- situation. iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis. iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of. v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice. vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play. viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation. ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach. x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation. xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation. xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 judicial discretion which is founded on objective reasoning and not on individual perception. xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude. 16. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are: - a) An application for condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system. b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective. c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto. d) The increasing tendency to perceive delay as a non- serious matter and, hence, lackadaisical propensity can be exhibited in a non-challant manner requires to be curbed, of course, within legal parameters.\" It is very important to consider the judgement of the C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 Hon\u2019ble Supreme Court in the case of Esha Bhattacharjee, wherein the Hon'ble Apex Court laid down certain principles which were culled out particularly and those principles are the guiding principles for the purpose of deciding the petitions filed to condone the delay. The above principles, cited supra reveals that the concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed totally to unfettered free play. 16. The concepts such as \u201cliberal approach\u201d, \u201cjustice oriented approach\u201d, \u201csubstantial justice\u201d cannot be employed in jettison the substantial law of limitation. The law of limitation is substantial and therefore the principles laid down is to be scrupulously followed while condoning the delay under the law of limitation. The limitation has got a specific purpose and object and more specifically to avoid prejudice to the respective parties. In the event of prolongation or protraction of the litigation, undoubtedly and for an unspecified period when the specific law of limitation has got a specific purpose and object, then the C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 power of discretion is to be exercised cautiously. Power of discretion cannot be exercised in the absence of any valid reason. In other words, powers can be exercised for the purpose of passing orders only by recording reasons which must be candid and convincing and must be passed on certain sound legal principles. Therefore, recording of reasons for exercising discretionary powers is one of the elementary principles of law. In the event of exercising discretionary powers without recording reasons, undoubtedly the same would cause not only prejudice and will set a bad principle and therefore, the Courts must be cautious while exercising power of discretion more specifically in such matters where the law of Limitation is substantial.\u201d 5. In view of the legal principles and the facts and circumstances in the present case on hand, this Court is of an opinion that the petitioner has not made out any acceptable ground for the purpose of condoning the delay. C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 6. Consequently, the Civil Miscellaneous Petition in C.M.P.No.15283 of 2019 is devoid of merits and the same stands dismissed. Accordingly, AS.SR.No.85894 of 2019 is rejected at the SR Stage itself. No costs. 11.12.2019 Kak Index:Yes Speaking order C.M.P.No.15283 of 2019 AS.No.SR85894 of2019 S.M.SUBRAMANIAM, J. Kak To The II Additional District Judge, Puducherry. 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{"id": "1922398", "text": "PETITIONER: GANESH DASS SREERAM, ETC. A Vs. RESPONDENT: INCOME TAX OFFICER, 'A' WARD, SHILLONG AND OTHERS ETC. DATE OF JUDGMENT30/10/1987 BENCH: DUTT, M.M. (J) BENCH: DUTT, M.M. (J) PATHAK, R.S. (CJ) MISRA RANGNATH CITATION: 1988 AIR 427 1988 SCR (1) 689 1987 SCC Supl. 442 JT 1987 (4) 208 1987 SCALE (2)894 ACT: Income Tax Act, 1961-Interest charged by Income Tax officer for delayed filing of returns-Legality of-Sub- section (4) of section 139 of the Act, as it stood before April l, 1971-Constitutional validity of. c HEADNOTE: % The appellants, registered firms under the Income Tax Act, 1961, filed delayed returns. The Income Tax officer assessed the appellants under section 143(3) of the Act and determined the total incomes of the appellants and the amounts of the tax payable by them. The Income Tax officer also determined and added, under sub-section (4) of section 139 of the Act, the amounts of interest on the amounts of tax payable by the appellants. The appellants challenged the charging of interest in the High Court by writ petitions. The High Court dismissed all but some writ petitions which were allowed in part to the extent that the Income tax officer was directed to take into account the advance tax paid by the assessees while calculating the interest. The appellants have filed Civil Appeals Nos. 1032-1036 of 1973, 1927-1933 of 1978 and 1288 and 1289 of 1980 against the decision of the High Court. Allowing Civil Appeal No. 1035 of 1973 and dismissing all the other appeals, the Court, ^ HELD: Sub-section (4) of section 139 of the Income Tax Act is a substantive provision, which does not provide for the making of an application to the Income Tax officer for extention of the date for furnishing return. The sub-section provides that even though a person does not furnish the return within the time allowed under sub-section (1) or (2) of section 139, yet he may furnish the same before the end of four assessment years concerned. The substantive provisions of subsections (1) and (2) specify the time within which the return has to be filed. The provisos to the sub-sections confer power on the Income-tax officer to extend the date for filing the return on an application. The expression \"time allowed\" in sub-section (4) is not confined only to the extension of time granted by the Income-tax officer but also to the time originally fixed for 690 filing the returns under sub-section(1) and (2). [694G- H;695A-D] The Income-Tax officer is entitled to charge interest in accordance with the provisions of clause (iii) of the proviso to sub-section (1) of section 139 in a case where time has been extended by the Income Tax officer to file returns on application made by the assessee and the return is not filed within the time allowed, and in a case where no such application has been made by the assessee, and the return is filed beyond the time allowed but before the end of the four assessment years concerned. [695D-F] Secondly, as decided by this Court in Central Provinces Manganese Ore Co. Ltd. v. Commissioner of Income-Tax, [1986] 160 ITR 961, and Commissioner of Income Tax A.P. v. Chandra Sekhar, (1955) 151 ITR 433, the interest is levied by way of compensation, and not by way of penalty as contended by the appellants. [696A] The contention of the appellants that the provisions of Sub-Section (4) of section 139, read with clause (iii) (a) of the proviso to Sub-Section (1) of section 139 is discriminatory and violative of Article 14 of the Constitution because Sub-Section (4) has placed the registered firms in a separate category inasmuch as they have to pay interest calculated on the amount of tax payable by them as unregistered firms, and a registered firm is treated as an unregistered firm, for purposes of qualification of interest, is not comprehensible, Section 139 (4) read with clause (iii)(a) of the proviso to section 139(1), as it stood prior to April 1, 1971, has placed the registered firms and the unregistered firms on the same footing and is not violative of Article 14 of the Constitution and is quite legal and valid. [697H; 698A-D] Where advance tax duly covers the entire amount of the tax assessed, there is no question of charging a registered firm with interest if the return is filed beyond the time allowed, regard being given to the fact that payment of interest is only compensatory in nature. As the entire amount of the tax is paid by way of advance tax, the question of payment of any compensation does not arise, and accordingly, in the facts and circumstances of the case in the C.A. No. 1035 of 1973, the Income Tax of officer was not justifed in charging interest, and the assessee in that case is entitled to refund of the amount paid by way of interest. [699B-C, E] Commissioner of Income- Tax, A . P. v. M. Chandra Sekhar, [1955] 151 ITR 433, Central Provinces Manganese ore Co. Ltd. v. Commissioner of Income Tax, [1986] 160 I.T.R. 961; Jain Brothers 691 and others v. Union of India and others, [1970] 77 ITR 109; M. Nagappa v. Income Tax officer, Central Circle I, Bangalore, [1975] 99 ITR 33; Mahendra Kumar Ishwarlal and Co. v, Union of India, [1973] 91 ITR 101 and [1974] 94 ITR 65; Chhotalal & Co. v. Income-Tax officer; [1976] 105 ITR 230; Jiwanmal Hospital v. Income-Tax officer, [1979] 119 ITR 439; Hindustan Steel Forges v. Commissioner of Income-Tax, [1980] 121 ITR 793 and Mohanlal Soni v. Union of India, [1983] 143 ITR 436, referred to. JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal Nos 1032- 1036 of 1973. From the Judgment and order dated 16.2.1973 of the Gauhati High Court in Civil Rule Nos. 1142 to 1146 of 1971 S.T. Desai, R.P Agarwala, Mrs Kum Kum Sen, Praveen Kumar, D.N. Mukherjee, Ranjan Mukherjee and N.R. Choudhary for the Appellants. Dr. V. Gauri Shanker and Miss A. Subhashini for the Respondents. The Judgment of the Court was delivered by DUIT, J.The appellants, who are all registered firms within the meaning of section 2(39) of the Income-Tax Act, 1961, hereinafter referred to as 'the Act', have preferred these appeals against the judgments of the Gauhati High Court overruling the challenge of the appellants as to the legality of the interest charged by the Income-tax officer for the delayed filing of returns and also as to the constitutional validity of sub-section (4) of section 139 of the Act, as it stood before April 1, 197 l The relevant provisions of section 139, as it stood prior to April 1. 1971, are as follows:- \"S. 139(1). Every person, if his total income .. ...... during the previous year exceeded the maximum amount which is not chargeable to Income- tax, shall furnish a return of his income ................. (a) in the case of every person .. .. before the expiry of six months from the end of the previous year ... , or before the 30th day of June of the assessment year, whichever is later; (b) in the case of every other person, before the 30th day of June of the assessment year: Provided that, on an application made in the pre scribed manner, the Income-tax officer may, in his discretion, extend the date for furnishing the return- (i) in the case of any person whose total income includes any income from business or profession the previous year in respect of which expired on or before the 31st day of December of the year immediately preceding the assessment year, and in the case of any person referred to in clause (b), up to a period not extending beyond the 30th day of September of the assessment year without charging any interest; (ii) in the case of any person whose total income includes any income from business or profession the previous year in respect of which expired after the 31st day of December of the year immediately preceding the assessment year, up to the 31st day of December of the assessment year without charging any interest; and (iii)up to any period falling beyond the dates mentioned in clauses (i) and (ii), in which case, interest at nine per cent per annum shall be pay able from the 1st day of October or the 1st day of January, as the case may be, of the assessment year to the date of the furnishing of the return- (a) in the case of a registered firm or an unregistered firm which has been assessed under clause (b) of section 183, on the amount of tax which would have been payable if the firm had been assessed as an unregistered firm and (b) in any other case, on the amount of tax payable on the total income. reduced by the advance tax, if any, paid or by any tax deducted at source, as the case may be. (2). In the case of any person, who in the Income-tax officer's opinion, is assessable under this Act, whether on his own total income or on the total income of any other person during the previous year, the Income-tax officer may, before the end of the relevant assessment year, serve a notice upon him requiring him to furnish, within thirty days from the date of service of the notice, a return of his income or the income of such other person during the previous year, in the prescribed form and verified in the prescribed manner setting forthwith such other particulars as may be prescribed; Provided that on an application in the prescribed manner the Income-tax officer may, in his discretion, extend the date for the furnishing of the return, and when the date for furnishing the return, whether fixed originally or on extension, falls beyond the 30th day of September or, as the case may be, the 31st day of December of the assessment year, the provisions of sub- clause (iii) of the proviso to sub-section ( 1) shall apply. (4). Any person who has not furnished a return within the time allowed to him under sub- section (1) or sub-section (2) may before the assessment is made furnish the return for any previous year at any time before the end of four assessment years from the end of the assessment year to which the return relates, and the provisions of sub-clause (iii) of the proviso to sub-section (1) shall apply in every such case.\" In all these cases, it is not disputed that no application for extension of time to file returns was made by the appellants for the relevant assessment years. The returns were submitted before the assessment was made and also before the end of the four assessment years as mentioned in sub-section (4) of section 139 of the Act. The Income-tax officer assessed the appellants under section 143(3) of the Act and determined the total incomes of the appellants and the amounts of tax payable by them. In view of sub-section (4) of section 139, the Income tax officer also added to the amount of tax interest calculated at the rate of six per cent per annum on the amount of tax which would have H been payable if the firms had been assessed as unregistered firms. A Being aggrieved by the charging of interest under sub-section (4) read with clause (iii)(a) of the proviso to sub-section ( I) of section 139 of the Act, the appellants filed writ petitions before the Gauhati High Court, challenging the charging of interest and the validity of subsection (4) read with clause (iii)(a) of the proviso to sub-section ( 1) of section 139 of the Act as violative of Article 14 of the Constitution The Gauhati High Court, as stated already, overruled the challenge and dismissed the writ petitions except that some writ petitions were allowed in part only as the High Court directed the Income-tax officers to take into account the advance tax paid by the assessees before calculating the interest. Hence these appeals. The first contention made on behalf of the appellants is that it is clear from the provisos to sub-sections ( 1) and (2) of section 139 of the Act that unless an application is made for extension of the date for furnishing the return, the question of charging any interest on the amount of tax does not at all arise. A similar contention was made before the High Court by the appellants, but the High Court overruled the same. Much reliance has been placed on behalf of the appellants on an observation of this Court in Commissioner of Income-tax, A.P. v. M. Chandra Sekhar, [1955] 151 ITR 433. In that case, this Court has observed that it is only where the Income-tax officer extends the time for furnishing the return beyond September 30, or December 31, as the case may be, the interest becomes payable The said observation has been made by this Court relating to clause (iii) of the proviso to sub-section ( 1) of section 139 of the Act while considering the question whether charging of interest indicated that the Income-tax officer was satisfied that there was sufficient cause for the delay in filing the return of income and whether the cancellation of the penalties levied under section 27(1)(a) of the Act was justified. Nothing has, however, been said by this Court in respect of sub-section (4) of section 139 of the Act. Sub-section (4) is a substantive provision and it does not provide for making an application to the Income-tax officer for the purpose of extension of the date for the furnishing of the return. What is provided in sub-section (4) is that even though a person does not furnish the return within the time allowed to him under sub-section (I) or subsection (2), yet he may furnish the same before the end of the four assessment years concerned. The substantive provision of sub-sections (l) and (2) of section 139 specify the time within which the return has to be filed The provisos to sub-sections (1) and (2) confer power on the Income-tax officer to extend the date for filing the return on an application in that regard made by the assessee. So, it is clear that the expression 'time allowed' in sub-section (4) of section 139 is not confined only to the extension of time granted by the Income-tax officer, but also to the time originally fixed for the filing of returns under sub-sections ( 1) and (2) of section 139 of the Act. There may be two types of cases for the late filing of returns, namely ( 1) the assessee after getting the date extended by the Income tax officer under sub-section ( 1) or sub-section (2) of section 139 of the Act, does not file the return within the extended date, but files the same before the end of four assessment years concerned and (2) the assessee without filing any application for extension of time, files the return beyond the period mentioned in sub- section ( 1) or sub-section (2) but before the end of four assessment years in question. In either case, the provision of clause (iii) of the proviso to sub-section (l) of section 139 will apply. In other words, the Income-tax officer will be entitled to charge interest on the amount of tax in accordance with the provision of clause (iii) of the proviso to sub-section ( 1) of section 139. Thus, where time has been extended by the Income-tax officer on an application made in that regard by the assessee and the assessee does not file the return within the time allowed and where no such application has been made by the assessee, but the return is filed by him beyond the time allowed, but before the end of the four assessment years concerned, in either case, the Income-tax officer will be entitled to charge interest in accordance with the provision of clause (iii) of the proviso to sub-section (1) of section 139 of the Act. There is, therefore, no substance in the contention of the appellants that as the appellants had not made any application praying for the extension of time for the filing of returns, the Income-tax officer had no authority to charge interest under the provision of clause (iii) of the proviso to sub-section ( I) of section 139 of the Act The next question that requires consideration relates to the validity of sub-section (4) read with clause (iii)(a) of the proviso to subsection (I) of section 139. It is submitted by the learned Counsel appearing on behalf of the appellants that as, in view of the late filing of the returns, there is postponement of the payment of tax and the Revenue suffers loss on account of delayed payment of tax, the interest when levied takes the character of penalty This contention need not detain us long, for it has already been decided by this Court in Central Provinces Manganese ore Co. Ltd.. v. Commissioner of Income-tax, [ 1986] 160 ITR 1961 that interest is levied by way of compensation and not by way of penalty. In Chandra Sekhar's case (supra? this Court also has taken a similar view. The High Court, however, has taken the view that the interest charged partakes also of a penal character. In expressing that view, the High Court has placed reliance upon a decision of this Court in Jain Brothers and others v. Union of India and others, [ 1970] 77 ITR 109. In that case, this Court was mainly considering a challenge to section 271(2) of the Act, which is a penal provision, on the ground of contravention of Article 14 of the Constitution. The question whether charging of interest under the proviso to section 139(1) of the Act was in the nature of penalty or not, was not considered by this Court. Indeed, the subject-matter was different from that with which we are concerned. In view of the decisions of this Court in Chandra Sekhar's case (supra) and in the case of Central Provinces Manganese ore Co. Ltd. (supra), we hold that the charging of interest did not become transformed to penalty. It is urged on behalf of the appellants that all the assessees who are charged with interest for the late filing of returns, should be classified in one and the same category inasmuch as they are similarly situated, but sub- section (4) read with clause (iii) of the proviso to sub- section ( I) of section 139 of the Act has without any reasonable justification placed the registered firms in a separate category inasmuch as for the late filing of returns by such firms they are-saddled with interest to be calculated on the amount of tax payable by them as unregistered firms. It is submitted that such separate classification of the registered firms for the purpose of payment of interest under section 139, does not bear any nexus to the object sought to be achieved by the section and, accordingly, the provision of sub-section (4) read with clause (iii)(a) of the proviso to sub-section (1) of section 139 of the Act is discriminatory and violative of the provision of Article 14 of the Constitution and, as such, is void. In support of the contention, the appellants have placed much reliance upon a decision of the Karnataka High Court in M. Nagappa v. Income-tax officer, Central Circle 1, Bangalore, [ 1975] 99 ITR 33. In that case, a learned Single Judge of the Karnataka High Court has struck down as void the provision of sub-section (4) read with clause (iii)(a) of the proviso to sub-section ( 1) of section 139 The reason that weighed with the learned Judge is that the loss suffered by the Government which is sought to be compensated by the legislative measure should be the same in all cases, irrespective of the fact that the assessee who is responsible for it is a registered firm or. any other kind of assessee. If that is the case, then the amount claimed by way of interest should be directly correlated to the amount of tax withheld by the assessee without reference to the kind of assessee concerned in a given case. It is observed that the object of levy of interest being just reimbursement of what the Government would lose by delayed payment of tax resulting from the delayed filing of the return, it is clear that the levy of interest in the case of a registered firm on the tax which would have been payable if the firm had been assessed as an unregistered firm, is outside the said object. Accordingly, it has been held that section 139(4) to the extent it required a registered firm to pay interest at the specified rate on the tax assessed as if it were an unregistered firm, whenever the registered firm did not file the return within the specified time, was violative of Article 14 of the Constitution and is, therefore, void. That decision of the learned Single Judge has been upheld by a Division Bench of the Karnataka High Court and is since reported in [ 1981] 129 ITR 516. The Karnataka High- Court, before holding that provision of sub-section (4) of section 139 read with clause (iii)(a) of the proviso to sub-section ( 1) of section 139 of the Act as violative of Article 14 of the Constitution, has not considered the reason why, when a registered firm submits a return beyond time, it is charged with interest calculated on the amount of tax which would have been payable if the firm had been assessed as an unregistered firm. It is because of certain privileges which have been conferred on a registered firm. One of the privileges is that the firm is considered as an assessable unit and is taxed at a reduced rate and the partners are assessed on their respective shares in the income of the firm. This privilege which has been conferred on a registered firm by the Act, is not available to an unregistered firm. The Legislature is, however, competent to withhold any of the privileges conferred on a registered firm if it violates any of the provisions of the Act. A registered firm is required to file its return within the time as prescribed by the Act. Clause (iii)(a) of the proviso to section 139(1) read with sub-section (4) of section 139 in effect only provides for the withdrawal of the privilege of the registered firm to be assessed at a reduced rate because of its non-compliance with the provisions of sub-sections (1) and (2) of section 139 of the Act. In other words, the registered firm is treated as an unregistered firm for purposes of quantification of interest. The contention of the appellants that by treating the registered firms as unregistered firms for the charging of interest, the Legislature has placed the registered firms in a separate category is not at all comprehensible. On the other hand, by treating the registered firms as unregistered firms, the Legislature has avoided the discrimination that would have been there if the registered firms were not so treated for the purpose of charging of interest. In other words, if the registered firms had been charged with interest on the amount of tax assessed at a reduced rate for the late filing of the returns, there would have been discrimination between registered firm and unregistered firms. When a registered firm and an unregistered firm commit the same default in filing returns beyond the time allowed under sub-sections ( 1) and (2) of section 139 of the Act, it would be unreasonable and unjust to charge two different rates of interest-one at a reduced rate for the registered firm and the other at a higher rate for the unregistered firm. So, in our opinion, section 139(4) read with clause (iii)(a) to the proviso of section 139(1) of the Act, as it stood prior to April 1, 1971, has placed the registered firms and the unregistered firms on the same footing as, for the purpose of interest, they are similarly situated. Dr. Gouri Shankar, learned Counsel appearing for the Revenue, has pointed out to us that except the Karnataka High Court, other High Courts, namely, Madras High Court, Gujarat High Court, Madhya Pradesh High Court, Punjab & Haryana High Court and the Calcutta High Court in Mahendrakumar Ishwarlal & Co. v. Union of India, [1973] 91 ITR 101, since affirmed on an appeal reported in [1974] 94 ITR 65; Chhotalal & Co. v. Income-tax officer, [1976] 105 ITR 230; Jiwanmal Hospital v. Income-tax officer, [1979] 119 ITR 439; Hindustan Steel Forges v. Commissioner of Income- tax, [ 1980] 121 ITR 793 and Mohanlal Soni v. Union of India, [ 1983] 143 ITR 436 respectively have taken the view that treating of registered firms as unregistered firms for the purpose of charging of interest for the late filing of returns cannot be said to be arbitrary and violative of Article 14 of the Constitution. The view expressed in these decisions, in our opinion, is correct. As has been noticed already, the Karnataka High Court did not consider the question of withholding of the privileges conferred on the registered firm on their default in filing returns within the time allowed under sub-sections (1) and (2) of section 139 of the Act, so that they may be treated on equal footing with unregistered firms making the same default. In the circumstances, no discrimination has been made between a registered firm and an unregistered firm and, accordingly, the provision of sub-section (4) of section 139 read with clause (iii)(a) of the proviso to sub-section (1) of section 139 of the Act is not violative of Article 14 of the Constitution and is quite legal and valid. The decision of the Karnataka High Court in Nagappa's case (supra), as affirmed on appeal by the Division Bench of that High Court, in so far as it declares the said provision as ultra vires Article 14 of the Constitution, is erroneous. Before we part with these appeals, we think we should clarify one situation, namely, where the advance tax duly paid covers the entire amount of tax assessed, there is no question of charging the registered firm with interest even though the return is filed by it beyond the time allowed, regard being had to the fact that payment of interest is only compensatory in nature. As the entire amount of tax is paid by way of advance tax, the question of payment of any compensation does not arise. In C.A. No. 1035 of 1973, it appears that total tax for the assessment year 1968-69 was assessed at RS.. 16,288. The assessee paid advance tax amounting to Rs.39,018 in three instalments on 25.9.1967, 24.1.1968 and 2.3.1968. It is apparent that the amount of advance tax paid by the assessee fully covered the amount of tax payable by it. In spite of that, the Income-tax officer charged the assessee for the said assessment year a sum of Rs. 14,233 as interest under section 139 of the Act for the delayed filing of the return. As has been observed earlier, when the amount of tax and already been paid in the shape of advance tax, the question of payment of compensation by way of interest does not arise and the Income-tax officer was not, therefore, justified in charging interest. The assessee is, therefore, entitled to get refund of the amount paid by way of interest for the said assessment year. The Income-tax officer is directed to refund to the assessee the amount paid on account of interest. In the result, C.A. No. 1035 of 1973 is allowed and the remaining appeals are dismissed. There will, however, be no order as to costs in any of these appeals. S.L. 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{"id": "136341809", "text": "PETITIONER: KULDEEP SINGH Vs. RESPONDENT: THE COMMISSIONER OF POLICE & ORS. DATE OF JUDGMENT: 17/12/1998 BENCH: S.SAGHIR AHMAD, & S.P. KURDUKAR., JUDGMENT: -------- S.SAGHIR AHMAD -------------- Leave granted. The appellant, a constable in the Delhi Police was dismissed, after a regular departmental enquiry, from service, by order dated 03.05.1991, passed by Dy Commissioner of Police, South District, New Delhi, which was upheld in appeal by Addl. Commissioner of Police by his order dated 22.07.1991. The appellant then approached the Central Administrative Tribunal, Principal Bench, New Delhi and the Tribunal, by the impugned judgment dated 28th February, 1997, dismissed the Claim Petition. A writ Petition filed before the Delhi High Court against this judgment was dismissed on 19.09.1997 as not maintainable as the judgment passed by the Tribunal was given before the date on which the decision of this Court was rendered in L.Chandra Kumar Vs. Union of India & Others, AIR 1997 SC 1125 = (1997) 3 SCC 261, in which it was held that a writ petition against the order passed by the Tribunal, constituted under the Administrative Tribunal, Act, 1985, would be maintainable (prospectively) before a High Court. The Review Application filed against the judgment of the Tribunal was dismissed on 26.05.1997. Learned counsel for the appellant has contended that the findings recorded by the Enquiry Officer cannot be sustained as the enquiry itself was held in utter violation of the principles of natural justice. It is also contended that there was no evidence worth the name to sustain the charge framed against the appellant and therefore, the findings are perverse particularly as no reasonable person could have come to these findings on the basis of the evidence brought on record. Learned counsel appearing on behalf of Union of India has, on the other hand, contended that the enquiry was held in consonance with the principles of natural justice and during the course of the enquiry, full opportunity was given to the appellant to defend himself. As far the evidence is concerned, it is contended that though it is true that none of the complainant was examined but on account of Rule 16(3) of the Delhi Police (F&A) Rules, 1980, it was not required to produce the complainant in person as the Rule itself contemplated that in the absence of a witness whose presence could not be procured without undue delay, inconvenience or expense, his statement, already made on an earlier occasion, could be placed on record in the departmental enquiry and the matter could be decided on that basis. It was under this Rule that the previous joint statement of the complainants was brought on record without examining any of them. Learned counsel for the respondents contended that the scope of judicial review in disciplinary proceedings is extremely narrow and limited. The court cannot, it is contended, re-examine or re-appraise the evidence and substitute its own conclusion in place of the conclusions arrived at by the Enquiry Officer or the disciplinary authority on that evidence. It is no doubt true that the High Court under Article 226 or this Court under Article 32 would not interfere with the findings recorded at the departmental enquiry by the disciplinary authority or the Enquiry Officer as a matter of course. The Court cannot sit in appeal over those findings and assume the role of the Appellate Authority. But this does not mean that in no circumstance can the Court interfere. The power of judicial review available to the High Court as also to this Court under the Constitution takes in its stride the domestic enquiry as well and it can interfere with the conclusions reached therein if there was no evidence to support the findings or the findings recorded were such as could not have been reached by an ordinary prudent man or the findings were perverse or made at the dictate of the superior authority. In Nand Kishore vs. State of Bihar, AIR 1978 SC 1277 = (1978) 3 SCC 366 = 1978 (3) SCR 708, it was held that the disciplinary proceedings before a domestic Tribunal are of quasi-judicial character and, therefore, it is necessary that the Tribunal should arrive at its conclusions on the basis of some evidence, that is to say, such evidence which, and that too, with some degree of definiteness, points to the guilt of the delinquent and does not leave the matter in a suspicious state as mere suspicion cannot take the place of proof even in domestic enquiries. If, therefore, there is no evidence to sustain the charges framed against the delinquent, he cannot be held to be guilty as in that event, the findings recorded by the Enquiry Officer would be perverse. The findings, recorded in a domestic enquiry, can be characterised as perverse if it is shown that such a finding is not supported by any evidence on record or is not based on the evidence adduced by the parties or no reasonable person could have come to those findings on the basis of the that evidence. This principle was laid down by this Court in State of Andhra Pradesh vs. Sree Rama Rao. 1964 2 LLJ 150 = AIR 1963 SC 1723 = 1964 (3) SCR 25, in which the question was whether the High Court, under Article 226, could interfere with the findings recorded at the departmental enquiry. This decision was followed in Central Bank of India vs. Prakash Chand Jain, 1969 2 LLJ 377 (SC) = AIR 1969 SC 983 and Bharat Iron Works vs. Bhagubhai Balubhai Patel & Ors. 1976 Labour & Industrial Cases 4 (SC) = AIR 1976 SC 98 = 1976 (2) SCR 280 = (1976) 1 SCC 518. In Rajinder Kumar Kindra vs. Delhi Administration through Secretary (Labour) and Others. AIR 1984 SC 1805 = 1985 (1) SCR 866 = (1984) 4 SCC 635, it was laid down that where the findings of misconduct are based on no legal evidence and the conclusion is one to which no reasonable man could come, the findings can be rejected as perverse. It was also laid down that where a quasi-judicial tribunal records findings based on no legal evidence and the findings are his mere ipse dixit or based on conjectures and surmises, the enquiry suffers from the additional infirmity of non-application of mind and stands vitiated. Normally the High Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry but if the finding of \"guilt\" is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse, But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be the conclusions would not be treated as perverse and the findings would not be interfered with. In the light of the above principles, let us scrutinise the case in hand. The charge framed against the appellant in the instant case is as under:- \"You, Constable Kuldeep Singh No.2138/SD. are hereby charged that while posted at P.P. Amar Colony on 22.2.1990. You kept illegally Rs.200/out of Rs. 1000/- given by the factory owner, Smt. Meena Mishra running her factory at A-25, Garhi Lajpat Nagar for the payment of her laborers, Shri Radhey Shyam S/O Shri Phool Vash. Shri Rapal Singh S/O Shri Brahma Nand and Shri Shiv Kumar S/O Shri Ganga Ram. All these three laborers had made a complaint that Smt. Meena Mishra had stopped their payment or Rs. 2200/- for three months. The above act your part amounts to grave misconduct and unbecoming of a police officers which renders you, constable Kuldeep Singh No. 2138/SD, liable for punishment u/s 21 of Delhi Police Act, 1978. Sd/- Shakti Singh SHAKTI SINGH Inspector, Enquiry Officer, DE Cell, Vigilance, Delhi.\" The list of witnesses who were proposed to be examined at the domestic enquiry, as set out in the charge-sheet, was:- List of witnesses 1. Sh. D.D. Sharma, Insp. He will move him the then S.H.O. Lajpat to present. Nagar, 2. Smt. Meena Mishra R/O She will depose A-25, Garhi, Lajpat Nagar, that she had Nagar, given Rs.1000/- to Ct. Kuldeep Singh on 22.2.1990 for payment to 3 laborers and Constable had kept Rs. 200/with him. 3. Sh. Rajpal Singh He will depose S/O Brahama Nand that on 22.2.90 R/O Village Ram he along with Nagar, P.S. Baroli Shiv Kumar and Distt. Etah (U.P.) Radhey Shyam had gone to factory A-25, Garhi with Ct. kuldeep Singh for settlement of payment and he kept Rs.200 with him. 4. Radhey Sham S/O Phool Vash R/o Distt. Etah Village Bulal Puri --do-- U.P. at present H.No. 74 Main Market Garhi Lajpat Nagar. SO/DE Cell\" The list of documents, indicated in the charge-sheet, was:- List of documents. ----------------- 1. Copy of report of SHO/Lajpat Nagar, dated 5.3.1990 against Constable Kuldeep Singh No.2138/SD. 2. Copy of Laborers Statement. SO/DE Cell.\" The charge against the appellant thus was that on 22.2.1990, three laborers namely, Radhey Shyam, Rajpal Singh and Shiv Kumar who were working in the factory of Smt. Meena Mishra at A-25, Garhi, Lajpat Nagar, and had not been paid their salary by the factory owner had approached the appellant who was posted at Police Post, Amar Colony, attached to P.S. Lajpat Nagar, New Delhi, for his help in the matter. The appellant along with the aforesaid laborers went to the factory owner who gave Rs. 1000/- to the appellant for payment to the three laborers but the appellant did not pay the whole of the amount to them and instead gave them only Rs. 800/-, keeping an amount of Rs. 200/- in his own pocket. In order to prove this charge, the Department examined Inspector D.D. Sharma, SHO, P.S. Lajpat Nagar; and Smt. Meena Mishra. Their statements have been reproduced in copious details in the findings submitted by the Enquiry Officer, a copy of which has been placed on the record. Smt. Meena Mishra stated that the three persons, namely, Rajpal Singh, Radhey Shyam and Shiv Kumar, were working in her factory, to whom she had made payment separately and individually. She stated. that she had paid Rs. 563/- to Rajpal; Rs.211/- to Shiv Kumar and another sum of Rs. 808/- jointly to Radhey Shyam and Rajpal. She stated that she had not paid Rs. 1000/- to Kuldeep Sing (appellant) on 22.2.1990, as she had asked the three laborers to come after a few days and it was then that the whole of the amount described above which was due from her was paid to them. Inspector D.D. Sharma, who was, at the relevant time. posted as S.H.O. P.S. Lajpat Nagar, New Delhi. stated that he had received a complaint from Radhey Shyam, Rajpal Singh and Shiv Kumar. They were summoned to the Police Post, Amar Colony where the contents of the complaint were verified from them and their statement was recorded. No other witness was examined on behalf of the Department, not even the complainants, Rajpal Singh and Radhey Shyam, though their names were mentioned in the charge-sheet for being examined as witnesses against the appellant. The appellant examined one of the complainants, namely, Shiv Kumar in defence who supported the appellant that Smt. Meena Mishra had not made any payment on 22.2.1990 but had called him and two other complainants, namely, Radhey Shyam and Rajpal Singh after few days and when they went again to her, she made the full payment. The appellant also examined constable Shoukat Ali who was posted, at the relevant time, at Police Post Amar Colony. He stated that Radhey Shyam, Shiv Kumar and Rajpal Singh had come to the Police Post to make a complaint against Smt. Meena Mishra that she had not paid them their salary. This constable directed them to meet the Emergency Officer, ASI Bhopal Singh who sent the appellant with them to Smt. Meena Mishra. The appellant came back and informed ASI Bhopal Singh that Smt. Meena Mishra had agreed to pay the amount due from her to these three persons after a few days. ASI Jagdish Prasad and ASI Bhopal Singh, who were also examined in defence, corroborated the above statement of constable Shoukat Ali. ASI Bhopal Singh further stated that the appellant was deputed by him to go to Smt. Meena Mishra with the complainants and the the appellant, on his return from the factory, told him that Smt. Meena Mishra had agreed to make payment to the three laborers a few days later. The witness, however, stated that all the three laborers had come to Police Post, Amar Colony of P.S. Lajpat Nagar on 22.2.1990 where their statement was recorded by ASI Jagdish Prasad on the dictation of SHO D.D. Sharma. This statement was placed on the record before the Enquiry Officer. This was the entire evidence produced at the domestic enquiry. What immediately strikes the mind is that Smt. Meena Mishra, who is alleged to have paid the amount of Rs. 1000/- to the appellant, stated in clear terms as a witness for the Department, that she had not made any payment to the appellant. This payment is not proved in any other manner as none of the three recipients of the above amount, who were the complainants, has been produced at the departmental enquiry, though two of them, namely, Radhey Shyam and Rajpal Singh were proposed to be examined. Non-production of the complainants is sought to be justified with reference to Rule 16(3) of the Delhi Police (F&A) Rules, 1980. Rule 18(3) is an under:- \"If the accused police officer does not admit the misconduct, the E.O. shall proceed to record evidence in support of the accusation as is available and necessary to support the charge. As far as possible the witnesses shall be examined direct and in the presence of the accused, who shall be given opportunity to take notes of their statements and corssexamine them. The E.O. is empowered, however, to bring on record the earlier statement of any witness whose presence cannot, in the opinion of such officer be procured without undue delay, inconvenience or expense necessary provided that it has been recorded and attested by a police officer superior in rank to the accused officer or by a Magistrate and is either signed by the person making it or has been recorded by such officer during an investigation or a judicial enquiry or trial. The statements and documents so brought on record in the departmental proceedings shall also be read out to the accused officer and shall be given an opportunity to take notes, Unsigned statements shall be brought on record only through recording the statements of the officer or Magistrate who had recorded the statement of the witness concerned. The accused shall be bound to answer any questions which the E.O. may deem fit to put to him with a view to elucidating the facts referred to in the statements or documents thus brought on record.\" This Rule, which lays down the procedure to be followed in the departmental enquiry, itself postulates examination of all the witnesses in the presence of the accused who is also to be given an opportunity to crossexamine them. In case, the presence of any witness cannot be procured without undue delay, inconvenience or expense, his previous statement could be brought on record subject to the condition that the previous statement was recorded and attested by a police officer superior in rank than the delinquent. If such statement was recorded by the Magistrate and attested by him then also it could be brought or record. The further requirement is that the statement either should have been signed by the person concerned, namely, the person who has made that statement, or it was recorded during an investigation or a judicial enquiry or trial. The Rule further provides that unsigned statement shall be brought on record only through the process of examining the Officer or the Magistrate who had earlier recorded the statement of the witness whose presence could not be procured. Rule 16(3) is almost akin to Sections 32 and 33 of the Evidence Act. Before the Rule can be invoked, the factors enumerated therein, namely, that the presence of the witness cannot be procured without undue delay, inconvenience or expense, have to be found to be existing as they constitute the condition-precedent\" for the exercise of jurisdiction for this purpose. In the absence of these factors, the jurisdiction under Rule 16(3) cannot be exercised. Rajpal Singh and Radhey Shyam, who were the original complainants along with Shiv Kumar, were not examined and the Enquiry Officer, regarding their absence, has stated in his report as under:- \"The two prosecution witnessess Rajpal Singh and Radhya Shyam have not attended to proceeding. They have not been found residing in their vill. now and it had come to notice that the defaulter has managed their disappearance and has settled them some where in Devli Khanpur and also has arranged their employment but the addresses of those PWs are not known. Such is the act of the defaulter to create his defence and is an attempt to hide his misconduct. Though their complaint Ex. PW-1/A has been exhibited and has been taken on file to ascertain the facts and for natural justice. This will show that the blame for the non-availability of these two witnesses has been laid on the appellant who was already under suspension and it is not understandable as to how and on what basis or on what material, the Enquiry Officer came to the conclusion that the appellant was responsible for their disappearance or had procured employment for them in Devli Khanpur. If it was known to the Enquiry Officer that they were available in Devli Khanpur, was any attempt made to contact them at Devli Khanpur or to bring them to the enquiry proceedings from that place, is not indicated by the Enquiry Officer in his report making it obvious that the factors necessary for the exercise of jurisdiction under Rule 16(3) were not present and it was not open to the Enquiry Officer to have taken recourse to this Rule to bring on record the previous statement of the complainants which allegedly was recorded by Inspector D.D. Sharma. Moreover, the so-called previous statement itself of the complainants appears to be a highly suspicious document for the reason that S.H.O., D.D. Sharma had stated before the Enquiry Officer that he had received a complaint of Radhey Shyam, Rajpal Sing and Shiv Kumar whereupon all the three persons were summoned by him and after verifying the facts from those complainants had recorded their statement which he had dictated to ASI Jagdish Prasad. There were, therefore, two documents: (i) The original complaint made by the aforesaid three persons: (ii) The statement of these persons, recorded by ASI Jagdish Prasad, at the dictation of S.H.O., D.D. Sharma, after verifying the facts, set out in the complaint, from these persons. complaint, from these persons. (1) The original complaint was not placed on the record and it was the statement, recorded by S.H.O., D.D. Sharma, which was produced before the Enquiry Officer. The absence of original complaint, therefore, indicates that there was, in fact, no complaint in existence which further supports the statement of Department's own witness Smt. Meena Mishra that no payment was made by her on 22.02.1990. Apart from the above, Rule 16(3) has to be considered in the light of the provisions contained in Article 311(2) of the Constitution to find out whether it purports to provide reasonable opportunity of hearing to the delinquent. Reasonable opportunity contemplated by Article 311(2) means \"Hearing\" in accordance with the principles of natural justice under which one of the basic requirements is that all the witnesses in the departmental enquiry shall be examined in the presence of the delinquent who shall be given an opportunity to cross-examine them. Where a statement previously made by a witness, either during the course of preliminary enquiry or investigation, is proposed to be brought on record in the departmental proceedings, the law as laid down by this Court is that a copy of that statement should first be supplied to the delinquent, who should thereafter be given an opportunity to cross-examine that witness. In State of Mysore vs. Shiv Basappa 1963(2) SCR 943 = AIR 1963 SC 375, the witness was not examined in the presence of the delinquent so far as his examination-in-chief was concerned and it was his previous statement recorded at an earlier stage which was brought on record. That statement was put to the witness who acknowledged having made that statement. The witness was thereafter offered for cross-examination and it was held that although the statement (examination-in-chief) was not recorded in the presence of the delinquent, since the witness had been offered for cross-examination after he acknowledged having made the previous statement, the rules of natural justice were sufficiently complied with. In Kasoram Cotton Mills Ltd. vs. Gangadhar 1964(2) SCR 809 = AIR 1964 SC 708 AND State of U.P. vs. Om Prakash Gupta, AIR 1970 SC 679, the above principles were reiterated and it was laid down that if a previous statement of the witness was intended to be brought on record, it could be done provided the witness was offered for cross-examination by the delinquent. Having regard to the law as set out above, and also having regard to the fact that the factors set out in Rule 16(3) of the Delhi Police (F&A) Rules, 1980, did not exist with the result that Rule 16(3) itself could not be invoked, we are of the opinion that the Enquiry Officer was not right in bringing on record the so-called previous statement of witnesses Radhey Shyam and Rajpal Singh. It will be noticed that there were three complainants but only two, namely, Radhey Shyam and Rajpal Singh were proposed to be examined. Why was not the third complainant, Shiv Kumar, proposed to be examined? The reason becomes obvious from the fact that when he was examined as a Defence witness, he fully supported the appellant by stating that no payment was made by Smt. Meena Mishra on that date. But he was held by the Enquiry Officer to be an impostor on the ground that he had not proved himself to be actual Shiv Kumar. The Enquiry Officer has observed as under:- \"DW 1, Sh. Shiv Kumar is a prepared witness and has not proved himself to be actual Shiv Kumar. This DW 1 has denied that he had visited the police station and had never met with SHO. Moreover he has denied to have signed EX PW-A/A. He had not made any complaint to the SHO. His version has been contradicted by ASI Jagdish Prasad, DW-4 the writer of this complaint Ex PW-1/A. Both these defaulter himself. So the statement of DW-1, Shiv Kumar has not been relied upon because he is not actual Shiv Kumar who is a complainant in this case and is a false person who has been produce by the defaulter.\" The reasons why he has been held to be an impostor or a false person have not been indicated. The finding in this regard is wholly arbitrary and perverse. The findings recorded by the Enquiry Officer, have also been upheld by the Deputy Commissioner of Police, South District, New Delhi who had passed the order on 3rd of May, 1991 by which the appellant was dismissed from service. The Addl. Commissioner of Police, before whom the appeal was filed by the appellant, also agreed with the findings recorded by the Enquiry Officer as also the Deputy Commissioner and dismissed the appeal on 22.07.1991. From the findings recorded separately by the Deputy Commissioner of Police, it would appear that there is a voucher indicating payment of Rs. 1000/- to Rajpal Singh, one of the labourers, on 8th of February, 1990. This document was not mentioned in the chargesheet in which only two documents were proposed to be relied upon against the appellant, namely, copy of the report of S.H.O., Lajpat Nagar dated 5th of March, 1990 against the appellant and the copy of the labourers' statement. This document has, therefore, to be excluded from consideration as it could not have been relied upon or even referred to by the Dy. Commissioner of Police. Moreover, according to the charge framed against the appellant, payment was made on 22.2.90 and not on 08.02.90 as indicated in the voucher and, therefore, voucher, for this reason also, has to be excluded. To sum up, the charge against the appellant consisted of two components, namely : (a) On 22.2.90 Smt. Meena Mishra paid Rs. 1000/- to the appellant for being paid to the three labourers. (b) Appellant paid Rs. 800/- to labourers and kept Rs. 200/- with himself. Smt. Meena Mishra, appearing as a witness for the Department, denied having made any payment to the appellant on that day. The labourers to whom the payment is said to have been made have not been produced at the domestic enquiry. Their so-called previous statement could not have been brought on record under Rule 16(3). As such, there was absolutely no evidence in support of the charge framed against the appellant and the entire findings recorded by the Enquiry Officer are vitiated by reason of the fact that they are not supported by any evidence on record and are wholly perverse. The Enquiry Officer did not sit with an open mind to hold an impartial domestic enquiry which is an essential component of the principles of natural justice as also that of \"Reasonable Opportunity\", contemplated by Article 311(2) of the Constitution. The \"Bias\" in favour of the Department had so badly affected the Enquiry Officer's whole faculty of reasoning that even non-production of the complainants was ascribed to the appellant which squarely was the fault of the Department. Once the Department knew that the labourers were employed somewhere in Devli Khanpur, their presence could have been procured and they could have been produced before the Enquiry Officer to prove the charge framed against the appellant. He has acted so arbitrarily in the matter and has found the appellant guilty in such a coarse manner that it becomes apparent that he was merely carrying out the command from some superior officer who perhaps directed \"fix him up\". For the reasons stated above, the appeals are allowed. The judgment and order dated 28th February, 1997, passed by the Central Administrative Tribunal, is set aside. The order dated 3rd of May, 1991, passed by Deputy Commissioner of Police by which the appellant was dismissed from service as also the order passed in appeal by Addl. Commissioner of Police are quashed and the respondents are directed to reinstate the appellant with all consequential benefits including all the arrears of pay up-to-date which shall be paid within three months from today. 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{"id": "19436407", "text": "IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION ORIGINAL SIDE BEFORE THE HON'BLE JUSTICE BISWANATH SOMADDER AND THE HON'BLE JUSTICE MOUSHUMI BHATTACHARYA A.P.O. NO. 3 OF 2017 With C.S. NO. 369 OF 2014 MERLIN PROJECTS LIMITED VERSUS PAWAN KUMAR AGARWAL With A.P.D. NO. 6 OF 2017 With C.S. NO. 369 OF 2014 MERLIN PROJECTS LIMITED VERSUS PAWAN KUMAR AGARWAL For the Appellant: Mr Abhrajit Mitra Sr. Adv., Mr. Aniruddha Roy, Adv., Ms. Shankersan Sarkar, Adv., For the Respondent: Mr. Utpal Bose, Sr. Adv., Mr. Pushan Kar, Adv., Mr. Aniruddha Sinha, Adv., Mr. Sagnik Mazumdar, Adv., Mr. Rishav Karnani, Adv. Heard on: 07.11.17, 11.01.18, 18.01.18, 25.01.18, 06.02.18, 08.02.18, 13.02.18, 15.02.18, 22.06.18, 29.06.18, 20.07.18, 03.08.18, 17.08.18, 24.08.18, 16.11.18, 30.11.18, 11.1.19, 01.02.19, 01.3.19, 29.03.19, 14.06.19, 21.6.19, 05.07.19, 19.07.19, 02.08.19, 16.8.19 and 30.08.19 Judgment on: 01.10.2019. BISWANATH SOMADDER, J. :- 1. The two appeals, being A.P.O. No. 3 of 2017 and A.P.D. No. 6 of 2017, arise out of a judgment and order passed by a learned Single Judge on July 20, 2016, wherein an application, being G.A. No. 3675 of 2016, to amend a plaint in a civil suit, being C.S. No. 369 of 2014, was rejected and an application,being G.A. No. 1118 of 2015, for the dismissal of the said suit, was upheld under Order VII, Rule 11 of the Code of Civil Procedure, 1908. 2. The facts of the case, for the purposes of deciding the two appeals, are as follows:- i. The appellant, i.e. Merlin Projects Limited (hereinafter \"Merlin\") entered into negotiations with the co-owners of a plot of land, under Municipal holding No. 86/90, B.L. Shah Road, P.S. Behala, Kolkata-700 053(hereinafter \"the said premises\"), for the purposes of developing/purchasing the said premises. ii. Pursuant to such negotiations, Merlin entered into a Memorandum of Understanding (hereinafter \"M.O.U.\") on August 24, 2002with Pawan Kumar Agarwal and Giniya Devi Agarwal, being the defendants in the suit C.S. No. 369 of 2014, who jointly had a 1/12thundivided share in the ownership of the said premises. In this M.O.U., the parties incorporated the broad terms of their arrangement for developing the said premises with the expectation of a development agreement later on. Merlin also transferred Rs.11,000/- to Pawan Kumar Agarwal and Giniya Devi Agarwal, under the said M.O.U., as an interest free security deposit. iii. The development agreement contemplated under the said M.O.U. with Pawan Kumar Agarwal and Giniya Devi Agarwal could not be executed, and Rs.11,000/- paid as a security deposit by Merlin was refunded to the latter by a payment instrument dated December 8, 2008, with the said M.O.U. being cancelled by an undated letter before the return of the security amount. However, Merlin claimed to have not encashed the said Rs.11,000/- and stated that it continued to have possession over the said premises. iv. According to Merlin, there were negotiations thereafter.Pawan Kumar and Giniya Devi agreed to not cancel the said M.O.U. whilst giving a go-by to the cancellation, inter alia, by not attempting to remove Merlin's men from the said premises. When Merlin allegedly found that Pawan Kumar and Giniya Devi along with the other co-owners of the said premises were trying to deal with the said premises or dispose of their interest in it - in alleged contradiction of their purportedly extended M.O.U. - it filed a suit on July 17, 2014, i.e. C.S. No. 369 of 2014, in this Court,wherein it was prayed for:- (a) A decree for specific performance against Pawan Kumar and Giniya Devi, jointly and severally, of the terms and acts agreed under the said M.O.U. of August 24, 2002. (b) Alternatively, a decree for declaration that the said M.O.U. of August 24, 2002 was valid and subsisting and a decree for specific performance thereof. (c) A decree for permanent injunction restraining Pawan Kumar and Giniya Devi, and their men, servants and agents from dealing with, disposing of, encumbering, alienating or creating any third party interest with regard to their shares. (d) Temporary injunction. (e) Receiver/Commissioner (f) Attachment/Attachment before judgment. (g) Costs (h) Such further or other relief or reliefs. v. The defendant no. 2 in the instituted suit, i.e. Pawan Kumar Agarwal filed an application on April 2, 2015, being G.A. No. 1118 of 2015, praying for the following reliefs:- (a) That the filed plaint be rejected and/or taken off the file and the suit being C.S. No. 369 of 2014 be dismissed. (b) In the alternative, the leave granted under clause 12 of the Letters Patent be revoked. (c) Stay of all further proceedings in the suit named during the pendency of the application. (d) Ad interim order in terms of prayers above. (e) Costs of and incidental to this application be borne by Merlin. (f) The passing of such other or further order or orders as the Hon'ble Court may deem fit and proper. This application was based, inter alia, on the grounds thatthe suit was barred by the laws of limitation: that the suit did not declare a right to sue or a cause of action; that the suit did not involve a concluded agreement that was capable of enforcement since the said M.O.U. had been terminated in December, 2008 with the security being repaid; that the defendant no. 1, i.e. Giniya Devi had passed away on December 21, 2013; and that the suit lay outside the Calcutta High Court's Ordinary Original Civil Jurisdiction. vi. In response to this application, Merlin filed an affidavit-in-opposition that was affirmed on November 19, 2015. In this affidavit, Merlin denied all allegations and contentions made by the defendant no. 2 in the application, being G.A. No. 1118 of 2015. The affidavit stated that the demise of the defendant no. 1, i.e. Giniya Devi Agarwal on December 21, 2013 was not brought to the knowledge of the plaintiff by the defendant no. 2, i.e. Pawan Kumar Agarwal. Merlin claimed that it had requested Pawan Kumar Agarwal for disclosure of the names of the heirs of Giniya Devi by its advocate's letter of August 24, 2015, to which it had received no reply. Merlin also claimed in the affidavit that upon further investigation, it had found the certified copy of an agreement dated June 5, 2014, between all the branches of the Agarwalla family, who owned the said premises, including the defendants in C.S. No. 369 of 2014, on one hand and one veteran developer, Jagdamba Commercial Pvt.Ltd.(in short \"Jagdamba\"), on the other hand. It was alleged that there were negotiations between the defendants and Jagdamba since September, 2009 with unregistered agreements therafter, while simultaneously Merlin had been represented with the willingness of proceeding with the said M.O.U. by the defendants and other owners of the said premises. Jagdamba - as alleged by Merlin - was thus supposed to be a necessary party to be added to the suit, having purportedly acted in collusion and conspiracy with all the members of the Agarwalla family despite being well aware of the plaintiff's agreements in respect of the said premises including the said M.O.U. vii. Apart from trying to make out a case for addition of Jagdamba as a party to the suit, Merlin sought for the other co-owners of the said property, i.e., other members of the Agarwalla family to be added as parties to the suit. Merlin also sought to bring some further facts to light by the aforesaid affidavit in order to prove the subsistence and continuance of the said M.O.U. It alleged the existence of a jural relationship by furnishing electronic mail excerpts between Merlin and the defendants' advocate, Mr. NirupamSaraogi, dated December 30, 2008 and January 2, 2009, which supposedly led to the finalisation of the development agreement evolving from clause 3 of the said M.O.U. that was approved by the senior-most member of the Agarwalla family (the owners of the said premises), one Narayan Agarwalla. It was also alleged that the conclusion of the development agreement was reflected in the payment of legal fees through cheques, being no. 582707 on December 30, 2008 and no. B37614 on May 20, 2008, that were made in favour of Mr. Saraogi, the advocate involved in the preparation of the purported development agreement. In addition Merlin claimed possession of portions of the premises, namely, godowns 1, 2 and 3. viii. In response to Merlin's affidavit, the defendant no. 2, i.e.,Pawan Kumar Agarwal, filed an affidavit-in-reply affirmed on December 15, 2015 in respect of the said application, being G.A. No. 1118 of 2015. This affidavit - apart from denying all contentions in the plaintiff's affidavit - stated that there had been gross suppression of material facts by the plaintiff, i.e. Merlin; the plaintiff was not in possession of the suit premises or any part thereof; the suit was also barred by section 34 of the Specific Relief Act, 1963, along with the laws of limitation; most pertinently, the plaintiff in relation to the suit property on or about November 10, 2009 had filed a suit for temporary injunction before the Court of the learned 5th Civil Judge (Junior Division) at Alipore, being Title Suit No. 3302 of 2009 (Merlin Projects Ltd. v. Sri Amar Chand Agarwal &Ors.), wherein Merlin had claimed their alleged right over the suit property by virtue of the said M.O.U.; from a meaningful reading of the pleadings of Title Suit No. 3302 of 2009 and C.S. No. 369 of 2014, it would transpire that both these case were more or less the same, thus being barred by section 10 of the Code of the Civil Procedure, 1908 as well as by Order VII, Rule 11 of the said Code. ix. The plaintiff, in the instituted suit C.S. No. 369 of 2014, i.e. Merlin filed an amendment application on November 19, 2015, being G.A. No. 3675 of 2015. This application, at the outset, sought for the addition of parties necessary for complete and effective adjudication of all disputes arising out of the said M.O.U. dated January 24, 2002due to the death of defendant no. 1 as on December 21, 2013 and the subsequent agreement between Jagdamba and the Agarwalla family dated June 5, 2014. The parties sought to be impleaded were as follows: Amar Chand Agarwal, Kailash Chand Agarwal, Om Prakash Agarwala, all sons of late Shrinarain Agarwal, Raj Kumar Agarwal, son of Novranglal Agarwal, Sitaram Agarwal, Ramavtar Agarwal, Kishan Lal Agarwal, Prahlad Agarwal, all sons of late Ganpat Lal Agarwal, Phool Devi Agarwal, Binod Kumar Agarwal, Pramod Kumar Agarwal, Ashok Kumar Agarwal, Sarita Parasrampuria, Sabita Agarwal and Jagdamba Commercial Pvt. Ltd. Secondly, the amendment application sought to reassert the claims of fact that the plaintiff had made in the affidavit-in-opposition affirmed on November 19, 2015 (see (vi) and (vii) above). In addition, the application asserted that the plaintiff sought for a perpetual injunction against the creation of third party interests for the protection of its possession of godowns no. 1, 2 and 3 in the said premises. Thereafter, by a supplementary affidavit affirmed on May 2, 2016,the plaintiff also sought to correct some grammatical and clerical errors in the proposed application for amendment of the original plaint. x. The defendant no. 2, i.e., Pawan Kumar Agarwal filed an affidavit-in- opposition affirmed on May 16, 2016 to the aforesaid application, being G.A. No. 3675 of 2015, denying the allegations levelled therein and stating, inter alia, that : (i) the application for amendment filed by the plaintiff could not stand for the purpose of recording the death of the very person against whom the suit had been filed and since the death was prior to the institution of the suit, the application should fail on that ground alone; (ii) the amendment sought would not only change the nature and character of the suit but would also introduce a complete new cause of action; (iii) the paragraphs sought to be incorporated in the suit by the amendment were beyond the scope of the said suit and cause of action purported therein; (iv) it was evident from a meaningful reading of the plaint that Jagdamba did not appear to be either a proper or necessary party, as any alleged agreement between Jagdamba and the co-owners of the suit property did not affect the issues of the present suit; (v) the inclusion of all other parties in view of the purported development agreement made pursuant to the said M.O.U. also had no ground, as there existed no executed development agreement but merely a draft unsigned agreement, and the presence of all Agarwallas was not necessary for adjudication of disputes arising out of the said M.O.U. dated August 24, 2002. xi. The learned Single Judge, after perusal of the facts and pleadings on record, delivered the impugned judgment on July 20, 2016. Relevant parts of the judgment are reproduced hereinbelow:- \".....The substance of the suit as originally filed was that the plaintiff had entered into a memorandum of understanding with the original defendants (the first of whom was dead before the suit was filed; but, thankfully, the second was the only heir of the deceased first defendant) in the year 2002 which contemplated that a development agreement would be entered into by the original defendants and the other co-owners of a Tollygunge property. The original defendants held 8.33% undivided share in the entire property. The memorandum of understanding, a copy whereof is incorporated as a part of the original plaint, envisaged a development agreement to be concluded within a year of the execution of such memorandum. The development agreement in respect of the entirety of the premises was never entered into or executed. Though the original defendants were not required to expressly terminate the memorandum of understanding of 2002 as it was only an understanding to enter into a development agreement, they effected a formal termination in December, 2008 by returning the token sum of Rs.11, 000/- which had been received from the plaintiff. The original plaint was founded on the plaintiff not encashing the instrument by which the sum of Rs. 11, 000/- was returned by the original defendants. It was sought to be asserted that since the original memorandum of understanding of 2002 still survived, the plaintiff was entitled to specific performance of the development agreement envisaged therein. In other words, an understanding to enter into a development agreement of 12 years prior to the institution of the suit was cited for bringing a suit to claim title to a valuable property. By the amendment which has been proposed, the plaintiff relies on a draft development agreement, which is unexecuted and unsigned, apparently prepared by a lawyer who may have been engaged by the plaintiff to take care of the partition in the Agarwala family.\" \".....It is also evident from the proposed amended plaint that all the co-owners of the land in question have entered into a development agreement with the proposed sixteenth defendant [i.e. Jagdamba Commercial Pvt. Ltd.] and such agreement has been registered.\" \".......The original defendants, or the surviving original defendant, has applied for rejection of the plaint. The rejection is on the ground that the claim is hopelessly barred by limitation, even if the proposed amendment is taken into account; and, there does not appear to be any cause of action for the suit being instituted or the same being continued with. The first defendant says that in view of Article 54 in the Schedule to the Limitation Act, 1963, this suit could not have been instituted against the original defendants in 2014 nor could it had been instituted against the proposed added defendants at the time that the amendment application was filed in 2015. The surviving original defendant has relied on the judgments of the Supreme Court reported at (1997) 2 SCC 611 and AIR 2011 SC 41. In either case, the Court recognised that the claim for specific performance was carried after the expiry of the period of limitation. Paragraph 13 of the plaint as it now stands claims that the memorandum to enter into a development agreement was entered into in August, 2002. The subsequent averments speak of the plaintiff paying the token amount of Rs.11,000/- to the original defendants and the plaintiff obtaining possession of the part of the premises in the possession of certain branches of the Agarwala family almost simultaneously. The impression given in the original plaint is that the plaintiff is in possession of the premises, though it is evident from the application to amend the plaint and the proposed amendments that the plaintiff is not in possession of the entirety of the premises but may only be in possession of a couple of godowns thereat. It is not even clear from the plaint or its proposed amended version as to what is the extent of the area covered by the suit property.\" \".....In addition, the last sentence of paragraph 21I of the proposed amended plaint has been placed with much vigour to assert that the cancellation of the agreement of 2002 had been given a go-by. It is also mentioned elsewhere in the plaint that the fact that the original or the proposed added defendants had given a go-by to the cancellation of the agreement in 2002 is evident from the fact that they had not attempted to dispossess the plaintiff from the couple of godowns at the property that the plaintiff claims to be in possession of. It is elementary that a suit for specific performance of a contract has to be filed within three years of the date fixed for the performance; or if no such date is fixed, within three years of the time when the plaintiff has notice that the performance is refused. As far as the original defendants are concerned, it is evident that the time fixed for the performance of whatever was required to be performed by the 6 August, 2002 agreement expired after a year of the execution of such agreement. In any event, such agreement was specifically terminated by what is described in the plaint to be an undated letter which was made over by the original defendants to the plaintiff along with an instrument for payment dated December 8, 2008 for the refund of the sum of Rs.11,000/-. There is no averment in the plaint of anything done by the original defendants thereafter for the plaintiff to obtain the benefit of any provision of the Act of 1963 for the clock of limitation to stop running and the cause of action qua the agreement of 2002 to be alive to be pursued at the time of the institution of the suit in 2014. Merely because the plaintiff did not encash the instrument for payment or the original defendants or any other took no step to evict the plaintiff from a part of the premises allegedly under the plaintiff's possession would be of no relevance in counting the period of limitation. By the proposed amendment, the plaintiff claims a veritable development agreement having been entered into between the plaintiff and original defendants and all the owners of the land in question. However, there was never any development agreement entered into between the plaintiff and the original defendants or between the plaintiff and the other owners. The unsigned and undated document of 2009 which is cited as the development agreement cannot be seen to be a concluded contract and, specific performance thereof would not be permissible nor would the plaintiff be entitled thereto.\" \".....If the proposed amendments to the plaint are taken into consideration and the proposed amended plaint is seen to be one filed on the date of the institution of the suit, even then the plaintiff would have no cause of action against the Agarwala defendants and, as a consequence, against the proposed sixteenth defendant. At the highest, the nebulous agreement between the plaintiff and the proposed added defendants was entered into in or about the year 2009. The suit was instituted in 2014 and even if the proposed amendment dates back to the date of the institution of the suit, the claim on such count would be barred by limitation. Since the suit as originally instituted was after the expiration of the period prescribed by the laws of limitation, it was incumbent on the plaintiff to plead the grounds upon which exemption from such law was claimed. Again, since the proposed amendment would, at the highest, date back to the date of institution of the suit, which date was after the expiration of the period prescribed by the laws of limitation in respect of the additional reliefs claimed, the plaintiff ought to have indicated the grounds to explain the delay or claim exemption in accordance with law therefor. The original plaint and the proposed amended plaint are singularly lacking in such aspect. Indeed, it has been submitted on behalf of the plaintiff that the proposed amendment seeks merely to amplify what is already stated in the original plaint; though it is evident from the proposed amended plaint that an altogether different claim is sought to be made by the proposed amendment.\" \".....If the plaintiff has no cause of action or no right to pursue the cause of action against the Agarwala defendants, the plaintiff has no right to chase the proposed sixteenth defendant, at least not in this Court or via the present suit. Since the suit fails primarily on the ground of limitation and the plaint disclosing no cause of action, the aspect of this suit being a suit for land has not been gone into; though plaintiff may have failed even on such count.\" \"......The plaint relating to CS No. 369 of 2014 is dismissed on being ex-facie barred by limitation and not disclosing any cause of action. As a consequence, GA No. 1118 of 2015 succeeded and GA No. 3675 of 2015 failed.\" 3. Before us two questions of law arise:- i. Whether the learned Single Judge was right in applying the provisions contained under Order VII, Rule 11 of the Code and deciding that the limitation period had expired, without allowing the application for amendment of the plaint or making determination of facts in relation to the amended plaint? ii. Whether the learned Single Judge was right in admitting the application for rejection of the plaint and in deciding that no cause of action was disclosed by the plaintiff in the present case? 4. The submission advanced on behalf of the appellant-Merlin was very attractive, initially. Learned senior counsel had submitted that the learned Single Judge ought to have allowed the plaint to be amended and ought to have proceeded to decide the limitation question, only after making certain determination of facts; such as, whether the appellant had certain godowns in the said premises, as stated in the amended plaint and/or whether the purported development agreement existed. In this context, the learned senior counsel placed reliance on two decisions of the Hon'ble Supreme Court in C. Natarajan v. Ashim Bai & Anr., reported in A.I.R. 2008 S.C. 363, (paragraphs 10-13, 18) and Nandkishore Lalbhai Mehta v. New Era Fabrics Pvt. Ltd. reported in (2015) 9 S.C.C. 755, (paragraphs 8, 9, 35-37). 5. We notice that the Hon'ble Supreme Court at paragraph 10 of Natarajan (supra) had followed its earlier decision in Popat and Kotecha Property v. State Bank of India Staff Association, reported in (2005) 7 S.C.C. 510. Popat (supra), in turn, refers to and relies upon Sopan Sukhdeo Sable & Ors. v. Assistant Charity Commissioner & Ors., reported in (2004) 3 S.C.C. 137 which lays down the general principles for examining a plaint and its maintainability under provisions of Order VII Rule 11. These principles are reproduced hereinbelow: \"12. The trial court must remember that if on a meaningful and not formal reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise the power under Order 7 Rule 11 of the Code taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, it has to be nipped in the bud at the first hearing by examining the party searchingly under Order 10 of the Code. (See T. Arivandandam v. T.V. Satyapal [(1977) 4 SCC 467] .) 13. It is trite law that not any particular plea has to be considered, and the whole plaint has to be read. As was observed by this Court in Roop Lal Sathi v. Nachhattar Singh Gill [(1982) 3 SCC 487] only a part of the plaint cannot be rejected and if no cause of action is disclosed, the plaint as a whole must be rejected. 14. In Raptakos Brett & Co. Ltd. v. Ganesh Property [(1998) 7 SCC 184] it was observed that the averments in the plaint as a whole have to be seen to find out whether clause (d) of Rule 11 of Order 7 was applicable. 15. There cannot be any compartmentalisation, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction or words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time it should be borne in mind that no pedantic approach should be adopted to defeat justice on hair-splitting technicalities.\" 6. In relation to the question of limitation barring a suit under Order VII, Rule 11 of the C.P.C, 1908, the general principles of law laid down in Sopan (supra), were taken into consideration both in Popat (supra) and Natarajan (supra). In Natarajan, the cause of action arose in 1994, when there was alleged trespass to the plaintiff's property, while the suit therein was filed in 2001. The suit sought for the reliefs of declaration of plaintiff's title to the suit property and consequential injunction restraining the defendants from interfering with plaintiff's possession. In the alternative, recovery of vacant possession. The trial judge dismissed an application for rejecting the plaint on the ground of limitation, while the High Court reversed the trial court's ruling by stating that the three year limit had expired for the main relief sought for, i.e. declaration of title. The Supreme Court, while allowing the appeal observed as follows in paragraph 19: \"We have noticed hereinbefore that the defendant, inter alia, on the plea of identification of the suit land vis-a-vis the deeds of sale, under which the plaintiff has claimed his title, claimed possession. The defendant did not accept that the plaintiff was in possession. An issue in this behalf is, therefore, required to be framed and the said question is, therefore, required to be gone into. Limitation would not commence unless there has been a clear and unequivocal threat to the right claimed by the plaintiff. In a situation of this nature, in our opinion, the application under Order VII Rule 11(d) was not maintainable. The contentions raised by the learned counsel for the respondent may have to be gone into at a proper stage. Lest it may prejudice the contention of one party or the other at the trial, we resist from making any observations at this stage.\" (e.a.) 7. The ratio of Natarajan (supra), which follows the general principles laid down in Sopan (supra) implies that the rejection of a plaint on the ground of limitation under the provisions of Order VII, Rule 11 may require a determination of fact requiring evidence to be adduced - only in certain cases - so as to allow the Court to determine when the limitation period begins. In the instant case, however, the original plaint never asserted the existence of the development agreement or the possession of certain godowns in the said premises. Rather, an entirely new case was sought to be made out in the amendment application. As such, the learned Single Judge was not required to conduct a fact finding exercise in order to decide on the question of limitation. 8. Going into such a fact-finding enquiry in order to arrive at such a conclusion would offend the very basic principles governing the scope of Order VII, Rule 11(a) of the Code of Civil Procedure, 1908. It would mean allowing the plaintiff to introduce a new case by way of an amendment to the plaint that would change the very cause of action of the suit from an alleged violation of an M.O.U. to an alleged violation of a purported development agreement made pursuant to that said M.O.U., as rightly held by the learned Single Judge. In other words, our present case is quite distinguishable from Natarajan (supra). That case dealt with a fact situation where the Court had to determine whether the plaintiff was actually in possession or not since the factum of such possession was being disputed by the defendant, as stated in paragraph 9 of Natarajan (supra). The situation here is completely different. Acceptance of the amended plaint and not rejecting the original plaint on the ground of limitation is to allow a suit to metamorphose into a new cause of action, which clearly circumvents the laws of limitation that bars the suit and requires rejection of the plaint. 9. So far as Nandkishore (supra) is concerned, the appellant therein had waived the stipulation/condition of obtaining the consent of the labour, but inspite of the efforts, the agreement never materialised. The question of the suit being barred by limitation never arose and therefore the applicability of Order VII, Rule 11(d) was not even an issue before the Court. 10. This brings us to the second issue. On facts we notice that the M.O.U. had been cancelled by the defendants. The cause for seeking an action, inter alia, for specific enforcement of the M.O.U., therefore, does not exist since the M.O.U itself does not exist and/or subsist. In a recent pronouncement of the law by the Hon'ble Supreme Court in Colonel Shrawan Kumar Jaipuriyar @ Sarwan Kumar Jaipuriyar v. Krishna Nandan Singh &Anr., on September 2, 2019, in Civil Appeal No. 6760 of 2019, it was held as follows in paragraph 10: \"10. This Court in Church of Christ Charitable Trust and Educational Society Represented by its Chairman v. Ponniamman Educational Society Represented by its Chairman/Managing Trustee [reported at (2012) 8 SCC 706] has referred to the earlier judgment of this Court in A.B.C. Laminart Pvt. Ltd. and Another v. A.P. Agencies, Salem [reported at (1989) 2 SCC 163] to explain that the cause of action means every fact which, if traversed would be necessary for the plaintiff to prove in order to seek a decree and relief against the defendant. Cause of action requires infringement of the right or breach of an obligation and comprises of all material facts on which the right and claim for breach is founded, that is, some act done by the defendant to infringe and violate the right or breach an obligation. In T. Arivanandam v. T.V. Satypal and Another [reported at (1977) 4 S.C.C. 467] this Court has held that if the plaint is manifestly vexatious, meritless and groundless, in the sense that it does not disclose a clear right to sue, it would be right and proper to exercise power under Order VII Rule 11 of the Code of Civil Procedure, 1908 ('Code', for short). A mere contemplation or possibility that a right may be infringed without any legitimate basis for that right, would not be sufficient to hold that the plaint discloses a cause of action.\" 11. Following the ratio as discussed above, it can, therefore, be held that in the facts and circumstances of the instant case, the same is squarely applicable as the plaintiff has been unable to disclose a clear right to sue and a mere contemplation or possibility that a right may be infringed without any basis for that right - but solely depending upon the amendment application being allowed - would not be sufficient to hold that the plaint discloses a cause of action. Thus, the second issue is answered in the affirmative. 12. The learned Single Judge's decision, therefore, requires no interference and consequentially, both appeals are liable to be dismissed and stand accordingly dismissed. No order as to costs. Urgent photostat certified copy of this judgment and order, if applied for, be supplied to the parties on a priority basis. (MOUSUMI BHATTACHARYA, J.) (BISWANATH SOMADDER, J.) Later After the judgment has been pronounced in Court, learned advocate representing the appellant prays for stay of operation of the judgment which is considered and refused. (MOUSUMI BHATTACHARYA, J.) 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{"id": "1348961", "text": "PETITIONER: DELHI CLOTH & GENERAL MILLS LTD. Vs. RESPONDENT: UNION OF INDIA DATE OF JUDGMENT08/10/1987 BENCH: SHETTY, K.J. (J) BENCH: SHETTY, K.J. (J) MUKHARJI, SABYASACHI (J) CITATION: 1987 AIR 2414 1988 SCR (1) 383 1988 SCC (1) 86 JT 1987 (4) 35 1987 SCALE (2)715 CITATOR INFO : R 1988 SC 354 (11) RF 1992 SC1075 (3) RF 1992 SC2169 (28) ACT: Refusal of permission by the Railway Board to charge concessional station to station freight rate for the carriage of Naptha for a fertilizer factory complaint under section 41(1)(a) and (b) of the Railways Act, 1980, against HEADNOTE: The appellant, a company, set up a fertilizer factory at Kota in Rajasthan. The factory manufactures urea for which the main raw material is Naptha, which has to be transported from the Koyali Refinery of the Indian oil Corporation. Before the actual setting up of the factory, the appellant requested the Railway Board by letter for a concessional frieght rate for the carriage of Naptha to the factory. The Railway Board by its letter EX 5 dated November 5, 1966, quoted station to station rate equal to 85-B (special) as against the rate equivalent to classification 62.5-B requested for by the appellant, and also stated that as the special rate was being quoted ahead of the actual setting up of the factory, the frieght rate would be reviewed when the traffic actually began to move. When the factory was almost ready for operation, the appellant again requested the Railway Board by letter for charging the rate under classification 62-5-B instead of 85- B (special) quoted by it. The Railway Board refused to oblige. The appellant wrote another letter to the Board, requesting it to permit charging the rate equivalent to 85-B (special) pending its final decision, as the movement of naptha was to commence from June/July, 1968. The Railway Board refused to grant that request also, saying that it could reconsider the question if on the basis of the facts and figures of the cost of production vis-a-vis the sale price of the fertilizers, it could be established that the production of the fertilisers at Kota was uneconomical unless freight concession on the movement of naptha was granted. The appellant filed a complaint under section 41(1)(a) and (b) of the Railways Act, 1890, before the Railway Rates Tribunal. The Tri- 384 bunal decided against the appellant. Aggrieved, the appellant appealed to this Court by special leave for relief against the order and judgment of the Tribunal. Dismissing the appeal, the Court ^ HELD: Three questions arise for consideration of the Court: (1) whether the Railway Board was bound to allow the concessional rate offered to the appellant, that is, 85-B (special) quoted in its letter Ex. C 5 dt. November 5, 1966, to the appellant, (2) whether the rate charged for the carriage of the naptha between the stations concerned was unreasonable, and (3) whether the Railways were showing undue preference or advantage in respect of other traffic in contravention of the provisions of section 28 of the Railways Act. [389E-F ] Dealing with the third question first, which relates to the contravention of section 28 of the Railways Act, the scope of the section was considered by this Court in Rajgarh Jute Mills Ltd v. Eastern Railway and another, [1959] SCR 236 at 241, and the Railway Rates Tribunal, considering the material on record in the light of the decision of the Court in case, held that there was no evidence produced by the appellant to justify any grievance under section 28. This conclusions is perfectly justified. [390E; 391C] The second question above-said relates to the rate charged by the Railway Administration being per se unreasonable. Even assuming, as argued by appellant's counsel, that the Railways are earning some surplus income, that by itself is no ground to hold that the frieght charged is per se unreasonable. In the case of commodities of national needs such as foodgrains, crude oil etc., it may be necessary for the Railways to charge below the operation cost, and to offset the loss, the Railways may charge higher freight for some other classified commodities. The cost of operation cannot by itself be the basis for judging the reasonableness of the rate charged. Counsel for the appellant also argued that crude oil and naptha were comparable commodities for the purpose of carriage but there was disparity in the rates charged in respect of the two, naptha being charged at a much higher rate. The Tribunal rejected the demand of the appellant for parity in frieghts, and the Court cannot interfere with the finding to the Tribunal in this appeal under Article 136 of the Constitution. On merits also, there is no justification to demand that neptha should take the same freight rate as that of the crude oil. [391D, F-H; 392B. D-E] 385 Lastly, the first question: It relates to the correctness of the view taken by the Tribunal on doctrine of promissory estoppel consequent upon the letter Ex. 5 of the Railway Board. The Tribunal rejected this claim of the appellant. Considering the conclusion of the Tribunal on this question, it appears the Tribunal has not correctly understood the doctrine of promissory estoppel: The party asserting the estoppel must have relied and acted upon the assurance given to him. It means the party has changed or altered the position by relying on the assurance or representation. The alteration of position by the party is the only indispensable requirement of the doctrine. It is not necessary to prove further any damage, detriment or prejudice to the party asserting the estoppel. \"A promise intended to be binding, intended to be acted upon, and in fact acted upon, is binding\", said Lord Denning, sitting as a trial judge in Central London Properties Ltd v. High trees House Ltd., [1947] K.B. 130. If the promisee has acted upon the promise, the promisor is precluded from receding from his promise. The concept of detriment as it is understood now is whether it appears unjust, unreasonable or inequitable that the promisor should be allowed to resile from his assurance or representation, having regard to what the promisee has done or refrained from doing in reliance on the assurance or representation. It is, however quite fundamental that the doctrine of promissory estoppel cannot be used to compel the public bodies or The Government to carry out the representation or promise which is contrary to law or which is outside their authority or power. Secondly, the estoppel stems from equitable doctrine. it requires that he who seeks equity must do equity. The doctrine, therefore, cannot also be invoked if it is found to be inequitable or unjust in its enforcement. or the purpose of invoking the doctrine, it is not necessary for the appellant to show that the insurance contained in Ex. (I S was mainly responsible for the establishing of the factory at Kota. There may be several representation to one party from different authorities in regard to different matters. Or there may be several representations from the same party in regard to different matters; In the instant case, there was one representation by the Rajasthan government to supply power to the appellant's factory at concessional rate. There is another representation from the same government to exempt the appellant from payment of tax for a certain period. If those representations have been relied upon by the appellant, the Court would compel the authorities to adhere to their representations. What is required is the fact that the appellant was induced to act on the representations. The assurance given by the Railway Board in the letter Ex. S was not clear and unqualified. it was subject to review to be undertaken 386 when the appellant started moving the raw material. Accordingly, A appellant was put to notice that it has to approach the Railway administration again when it would review the whole matter. From the tenor of Ex. 5, the railways are entitled to say that they have reviewed the matter and found no justification for a concessional frieght rate for naptha; that does not amount to resiling from the earlier assurance. No question of estoppel arises in favour of the appellant in the case out of the representation made in Ex 5. The Court agreed with the conclusion of the Tribunal but not for all the reasons stated. Rajgarh Jute Mills Ltd v. Eastern Railway & Anr, [1959] SCR 234 at 241; Central London Properties Ltd v. High Trees House Ltd, [1947] KB 130; Central Newbury Car Auctions Ltd v. Unity Finance Ltd, [1956] 3 All ER 905 at 909; Article \"Recent Development in the Doctrine of Consideration\"-Modern Law Review, Vol. 15, P. 5, Grundt v. The Great Boulder Ptv Gold, Mines Ltd, [1938] 59 CLR 641; Mohlal Padampet Sugar Mills Co Ltd v. State of UP and ors, [1979] 2 SCR 641 at 695= [1979] 2 SCC 409; Union of India and ors v. Godfrey Philips Ltd, [1985] 4 SCC 369= [1985] Supp. 3 SCR 123 and Halsbury's Laws of England-4th Edn., Vol. 16, P. 1071, para 1595, referred to. JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 223 of 1974. From the Judgment and order dated 13.7.1973 of the Railways Rates Tribunal, Madras in Complaint No. 2 of 1969. K.K. Jain, Bishamber Lal, Pramod Dayal and A.D. Sanger for the Appellant. Bed Brat Barua, Ms. A. Subhashini,.C.V. Subba Rao, Mrs. S. Suri, P. Parmeswaran and Anil Katiyar for the Respondent. The Judgment of the Court was delivered by JAGANNATHA SHETTY, J. This appeal, with Special Leave, is against the order and judgment dated July 13, 1973, of the Railways Rates Tribunal Madras, in complaint filed by the appellant under Section 41(1) of the Indian Railways Act No. 9 of 1890. The background facts are these: The appellant is a Company. It has set up a fertilizer factory at Kota in Rajasthan. It is said to be an industrially backward area. The factory manufactures Urea for which the main raw material is Naptha. Naptha has to be transported from Koyali Refinery of Indian oil Corporation. The nearest railway station is Bajuva near Baroda. The nearest railway station serving Company's factory is Dadhevi in Rajasthan. The distance between Bajuva and Dadhevi is about 520 kms. For transportation, the Naptha has been classified by the Railway under Clause 110-B of the tariff. Before the actual setting up of the factory, the Company, by its letter dated September 5, 1966 requested the Railway Board for a concessional frieght rate for the carriage of Naptha. It requested the Railway Board for fixed Station to Station rate equivalent to classification 62.5-B. That would have meant reduction of about 43% in the normal tariff under clause 110-B. In that letter it was pointed out that if such concessional rate was not fixed, the Company would be put to disadvantageous position as against the other factories located at ports or near the refineries. The Railway Board by its letter Ex. C5 dated November 5, 1966 agreed to quote station to station rate equal to 85-B (Special). In the said letter it was also stated that as the special rate was being quoted ahead of the actual setting up of the factory the freight rate need to be reviewed when the traffic actually begins to move. When the factory was almost ready for operation the company wrote a letter dated June 5, 1967 requesting the Railway Board for charging the rate under classification 62.5-B instead of 85-B(Special). The Railway Board did not accede to the request. On May 31, 1968 the company wrote another letter informing the Railway Board that the movement of Naptha would commence from June/July 1968 and pending decision of the company's earlier request, the Railway Board may permit charging the rate equivalent to 85-B (Special) already offered in terms of the letter Ex. 5. The Railway Board refused to grant that request also. The Railway Board, however, informed the Company in the letter dated July 11, 1968 as follows: \"However, if on the basis of facts and figures your cost of production (date to be furnished for at least one complete year) vis-a-vis the sale price of fertilizers, it can be established that production of fertilizers at Kota is uneconomical, until freight concession on the movement of Naptha from Bajuva/Trombay to Kota is granted, the Railway Board would be prepared to reconsider the question.\" on April 19, 1969, the company filed a complaint under Section 41(1)(a) and (b) of the Railways Act, 1890 before the Railway Rates Tribunal Madras. The principal contentions raised in the complaint are as follows: \"(i) The Railway Board was estopped and/or precluded from going back on the assurance Of quoting station to station concessional rate 85-B when the company had in vested a large amount of capital in setting up the factory at a place away from the refinery or port (ii) The rate charges by the Railway for the carriage of Naptha between two stations-Bajuva and Dadhevi was unreasonable under Section 41(1)(b) of the Indian Railways Act, 1980, and (iii) The Railways were showing undue preference or advantage in respect of other traffic and contravening the provisions of Section 28 of the Indian Railway Act, 1890.\" With these and other contentions, the company requested the tribunal to declare the rate charged for the carriage of Naptha as unreasonable and to fix a reasonable rate for such carriage. The Railway Board in its reply maintained that while quoting the concessional rate equal to 85-B (Special) it was made clear to the company that the rate was subject to review when the traffic starts moving and that concessional rate was provisional in character. The company did not construct the factory relying solely on the concessional rate offered by the Railway Board. There was no scope for any such understanding since the Railway reserved its right to determine the correct rate when the traffic started moving. It was later found that the chemicals have been advisedly given low class rate with a view to encourage fertilizer industry and no further concession was necessary to the company. It was further stated that the question of any undue prejudice of undue favour to any party does not arise when charging the respective class rates for specified commodities. On these pleadings the Tribunal considered among others, the following issues: 1. Whether freight charges, now charged, for the carriage of a Company's traffic in Neptha from Bajuva to Dadhevi station are unreasonable under Section 41(1) of the Indian Railways Act, 1890? 2. Whether the Railways are contravening Section 28 of the Indian Railways Act in charging the respective class rates for commodities naptha, chemical manures, divisions A & B, Urea and Gypsum? 3. Whether the Railways are estopped by the doctrine of promissory estoppel in view of the assurance given in the letter Ex. C? The Tribunal determined all these questions against the company. It was held that there was no unreasonableness in the rate charged for the carriage of Naptha from Bajuva to Dadhevi. The Railways are not contravening Section 28 of the Railways Act. The rate charged has not caused any prejudice to the company. On the question of promissory estoppel, the Tribunal held that the assurance given by the Railway Board in the letter Ex. C5 was not mainly responsible for setting up of fertilizer factory at Kota. It was further held that even if Ex. CS was an assurance to the Company the withdrawal of that assurance has not adversely affected the interests of the company. Upon the submissions made by learned counsel on both sides, the following questions arise for our consideration: (1) Whether the Railway Board was bound to give the concessional rate offered to the company under Ex. C5 dated November 5, 1966? (2) Whether the rate charged for the carriage of Naptha between Bajuva and Dadhevi is unreasonable? (3) Whether the Railways are showing undue preference or advantage in respect of other traffic and contravening the provisions of Section 28 of the Railways Act? We may conveniently take up third question first for consideration. The relevant provisions of the Railways Act, 1890, which have a material bearing on the question are these: Section 41 provides for filing complaints against Railway Administration. The Section provides as follows, so far as it is material: 41(I) Any complaint that a railway administration (a) is contravening the provisions of Section 28 or (b) is charging for the carriage of any commodity between two stations a rate which is unreasonable, or (c) x x x x x may be made to the Tribunal and the Tribunal shall hear and decide any such complaint in accordance with the provisions of this chapter. Section 28 provides: \"28. A Railway administration shall not make or give any undue or unreasonable preference or advantage to, or in favour of, any particular person or railway administration, or any particular description of traffic, in any respect what soever, or subject any particular person or railway administration or any particular description of traffic to any undue or unreasonable prejudice or disadvantage in any respect whatsoever. \" The third question formulated by us relates, to the contravention of Section 28 of the Railways Act. The scope of this Section has been considered by this Court in Rajgarh Jute Mills Ltd v Eastern Railway and another, [ 1959] SCR 236 at 241. There it was observed that a party who complains against the railway administration that the provisions of Section 28 have been contravened must establish that there has been preference between himself and his goods on the one hand and his competitor and his goods on the other. Gajendragadkar, J. (as he then was) observed: \"Section 28 is obviously based on the principle that the power derived from the monopoly of railway carriage must be used in a fair and just manner in respect of all persons and all descriptions of traffic passing over the railway area. In other words, equal charges should normally be levied against persons or goods of the same or similar kinds pas sing over the same or similar area of the railway lines and under the same or similar circumstances; but this rule does not mean that, if the railway administration charges un- equal rates in respect of the same or similar class of goods travelling over the same or similar areas, the inequality of rates necessarily attract the provisions of S. 28. All cases of unequal rates cannot necessarily be treated as cases of preference because the very concept of preference postulates competition between the person of traffic receiving preference and the person or traffic suffering prejudice in consequence. It is only as between competitors in the same trade that a complaint of preference can be made by one in reference to the other.\" In the light of these principles, the Tribunal considering the material on record held that there is no evidence produced by the Company to justify any grievance under Section 28. We see no reason to disagree with this conclusion. It is, in our opinion, perfectly justified. In fact Mr. K.K. Jain learned counsel for the appellant also did not seriously dispute the correctness of that finding recorded by the Tribunal. We may now turn to the second question.Mr. K.K. Jain urged that the rate charged by the Railway Administration is per se unreasonable. Here again the onus to prove the alleged unreasonableness of the freight rests on the company. It is for the company to establish that the rate charged by the Railway Administration for the carriage of Naptha is unreasonable. Of course, this onus could be discharged by relying upon the material produced by the Railways. Mr. Jain, therefore, relied upon a statement Ex. C46 in support of his case. Ex. C46 is a statement of surplus \"working cost\" in respect of carriage of Naptha from Bajuva to Dadhevi. It is, in our opinion, not necessary to analyse the statement. Even assuming that the railways are earning some surplus income after deducting the operation cost that by itself is no ground to hold that the freight charged is per se unreasonable. It must be born in mind that the railways are run as commercial undertaking and at the same time it being an instrumentality of the State, should serve the national interest as well. There is however, no obligation on the railways to pass on the extra amount realised by the carriage of goods to customers. Nor it is necessary to share the profit with the commuters. As Mr. Barua learned counsel for the Railways said that in the case of commodities of national needs such a foodgrains, crude oil etc., it may be necessary for the Railways to charge below the operation cost. To off set such a loss the Railways may charge higher freight for certain other classified commodities. Therefore, it seems to us, that the cost of operation cannot by itself be the basis for judging the reasonableness of the rate changed. It was next urged by Mr. K.K. Jain that the crude oil and Naptha are considered as comparable commodities for the purpose of carriage. The crude oil carries the rate equal to class 85-B(old), 85(new) while Naptha carries rate 110- B(old), 105-B(new). In terms of amounts it works out at Rs.59.45 for crude oil as against Rs.73.13 for Naptha. The counsel urged that there is no justification shown for this wide disparity in the first place. Secondly, the freight rate of crude oil was the rate offered to the company under Ex. CS and the denial of that rate without any good reason is arbitrary. This argument though attractive does not carry conviction if one analyses the evidence on record. Crude oil has been clubbed with Glycerine, fruit juices and syrups, fibres, flax etc. Naptha has been clubbed with Aviation Spirit, Petrol, Petroleum, Ether and solvent oil. From the evidence produced by the Railways Naptha has been classified as a dangerous commodity with the flash point below 24.4\u00f8C spontaneously. The crude oil has no such dangerous characteristics. It is also on record that Naptha requires special type of tank wagons and the Railways have to take special precautions for transportation. These and other relevant factors have been taken into account by the Tribunal for rejecting the demand of the company for parity in freights. This Court cannot, interfere with such a finding in this appeal under Article 136 of the Constitution. On the merits also, we see no justification to demand that Neptha should take the same freight rate as that of crude oil. We may now revert to the first question. It relates to the correctness of the view taken by the Tribunal on the doctrine of promissory estoppel resulting by the letter Ex. CS of the Railway Board. The Tribunal has rejected this claim of the company by summarising its conclusion in the following terms: \"We must, therefore, hold that the assurance contained in . Ext. CS was not mainly responsible for the setting up of the Fertilizer Factory at Kota. 15.3. Even if it was held that Ex. CS was a definite encouragement to the complainant to set up the Kota factory, there is no evidence on record to show that the withdrawal of the concession by Ex. 12 has adversely affected the complainant. We will show in the (i succeeding paragraphs that the complainant has suffered no material injury by virtue of the withdrawal of the concessional rate and the charging of the normal rate. It is well settled that the principle of estoppel cannot be applied unless the person pleading estoppel can show that he has been prejudiced by the conduct of the party on whose assurance l l he has acted.\" Here the Railways Rates Tribunal apparently, appears to have gone off the track. The doctrine of promissory estoppel has not been correctly understood by the Tribunal. It is true, that is the formative period, it was generally said that the doctrine of promissory estoppel cannot be invoked by the promisee unless he has suffered 'detriment' or 'prejudice'. It was often said simply, that the party asserting the estoppel must have been induced to act to his detriment. But this has now been explained in so many decisions all over. All that is now required is that the party asserting the estoppel must have acted upon the assurance given to him. Must have relied upon the representation made to him. It means, the party has changed or altered the position by relying on the assurance or the representation. The,alteration of position by the party is the only indispensable requirement of the doctrine. It is not necessary to prove further any damage, detriment or prejudice to the party asserting the estoppel. The Court, however, would compel the opposite party to adhere to the representation acted upon or abstained from acting. The entire doctrine proceeds on the promise that it is reliance based and nothing more. This principle would be clear if we study the cases in which the doctrine has been applied even since it was burst out into sudden blaze in 1946. Lord Denning in Central London Properties Ltd v High Trees House Ltd, 11947] K.B. 130 sitting as a trial judge, asserted: \"A promise intended to be binding, intended to be acted upon, and in fact acted upon is binding ....... The history of the High Trees principle is too well known to bear repetition. It will be enough to make the following points. The promisor is bound because he led the promisee to commit himself to change the position. If the promisee has acted upon the promise, the promisor is. precluded from receding his promise. No further detriment to the promisee upon his temporal interests need be established. This position has been made clear by Lord Denning himself in his article \"Recent Developments in the Doctrine of Consideration\" Modern Law Review, Vol. 15 at p. 5. \"A man should keep his word. All the more so when the promise is not a bare promise but is made with the intention that the other party should act upon it. Just a contract is different from tort and from estoppel, so also in the sphere now under discussion promises may give rise to a different equity from other conduct. The difference may lie in the necessity of showing \"detriment\" where one party deliberately promises to waive, modify or discharge his strict legal rights, intending the other party to act on the faith of promise, and the other party actually does act on it, then it is contrary, not only to equity but also to good faith, to allow the promisor to go back on his promise. It should not be necessary for the other party to show that he acted to his detriment in reliance on the promise. It should be sufficient that he acted on it. The principle governing this branch of the subject cannot be better put then in the wolds of a great Australian jurist, DIXON, J. in Grundt v The Great Boulder Pty Gold Mines Ltd, [1938] 59 CLR 641. There he said: \"It is often said simply that the party asserting the estoppel must have been induced to act to his detriment. Although substantially such a statement is correct and leads to no misunderstanding, it does not bring out clearly the basal purpose of the doctrine. That purpose is to avoid or pre vent a detriment to the party asserting the estoppel by compelling the opposite party to adhere to the assumption upon which the former acted or abstained from acting. This means that the real detriment or harm from which the law seeks to give protection is that which would flow from the change of position if the assumption were deserted that led to it. So long as the assumption is adhered to, the party who altered his situation upon the faith of it cannot complain. His complaint is that when afterwards the other party makes a different state of affairs the basis of an assertion of right against him then, if it is allowed, his own original change of position will operate as a detriment. His action or inaction must be such that if the assumption upon which he proceeded were shown to be wrong, and an inconsistent state of affairs were accepted as the foundation of the rights and duties of himself and the opposite party, the consequence would be to make his original act or failure to act a source of prejudice.\" This passage was referred to, with approval, by Lord Denning in Central Newbury Car Auction Ltd v Unity Finance Ltd, [1956] 3 All E.R. 905 at 909. The said passage has also been quoted, with approval, by Bhagwati, J. (as he then was) in Motilal Padampat Sugar Mills Co A Ltd v state of U.P. & Ors.,[ 1979]2 SCR 641 at p. 695= 1979(2)SCC 409. The learned Judge then said: \"We do not think that in order to invoke the doctrine of promissory estoppel it is necessary for the promisee to show that he suffered detriment as a result of acting in reliance on the promise. But we may make it clear that if by detriment we mean injustice to the promisee which could result if the promisor were to recede from his promise then detriment would certainly come in as a necessary ingredient. The detriment in such a case is not some prejudice suffered by the promisee by acting on the promise, but the prejudice which would be caused to the promisee, if the promisor were allowed to go back on the promise. \" The view taken in Motilal Padmapat Sugar Mills case (supra) has been reiterated in Union of India & Ors. v. Godfrey Philips India Ltd,, [ 1985 ] 4 SCC 369 = [ 1985 ] Supp 3 SCR 123 . The concept of detriment as we know understand is whether it appears unjust, unreasonable or inequitable that the promisor should be allowed to resile from his assurance or representation, having regard to what the promisee has done or refrained from doing in reliance on the assurance or representation. It is, however, quite fundamental that the doctrine of promissory estoppel, cannot be used to compel the public bodies or the Government to carry out the representation or promise which is contrary to law or which is outside their authority or power. Secondly, the estoppel stems from equitable doctrine. It, therefore, requires that he who seeks equity must do equity. The doctrine, therefore, cannot, also be invoked if it is found to be inequitable or unjust in its enforcement. We may also state that for the purpose of invoking the doctrine, it is not necessary for the company to show that the assurance contained in Ex.C5 was mainly responsible for establishing the factory at Kota. There may be several representations to one party from different authorities in regard to different matters. Or, there may be several representations from the same party in regard to different matters. As in the instant case, there was one representation by the Rajasthan Government to supply power to the company at concessional rate. There was another representation from the same Govern- ment to exempt the company from payment of tax for certain period. There may be other representations from the same or some other authorities. If those representations have been relied upon by the company, the Court would compel those parties to adhere to their respective representations. It is immaterial whether each of the representations was wholly responsible or partly responsible for locating the factory at Kota. It is sufficient if the company was induced to act on that representation. The last and final aspect of the matter to which attention should be drawn is that for the purpose of finding whether an estoppel arises in favour of the person acting on the representation, it is necessary to look into the whole of the representation made. It is also necessary to state that the representation must be clear and unambiguous and not tentative or uncertain. In this context we may usefully refer to the following passage from Halsbury's Laws of England, Halsbury's Laws of England 4th Edn. Vol. 16 p. 1071 para 1595. \"1595. Representation must be unambiguous To found an estoppel a representation must be clear and unambiguous, not necessarily susceptible of only one interpretation, but such as will reasonably be understood by the person to whom it is made in the sense contended for, and for this purpose the whole of the representation must be looked at. This is merely an application of the old maxim applicable to all estoppels, that they \"must be certain to every intent The question now is whether the assurance given by the Railway Board in the letter Ex.C5 was clear and unqualified. But unfortunately, it is not so. It was subject to review to be undertaken when the company starts moving the raw material. Ex. C5 reads:- New Delhi I, Dated S Nov., 1966 Dear Sir, Sub: Integrated Fertilizer-PVC project at Kota, Rajasthan Rail movement of Naptha. Ref: Your letter No. SFC/Gen-72 dated 5.9.1966 I am directed to state that the Railway Board agree to quote a special rate equal o class 85-B (Special) CC: K for transport of Naptha in train loads from Bombay or Koyali to Kota, for manufacture of fertilizers. The proposed special rate will apply at owner's risk. Since the special rate is being quoted ahead of the actual setting up of the factory the rate may need to be reviewed when the traffic actually begins to move. The Railway may accordingly be approached before the traffic actually starts moving. Yours faithfully, Sd/- R.L. Sharma for Secretary Railway Board\" What does this letter mean? The first part of the letter offering the concessional rate equal to class 85-B (Special) has been completely watered down in the second part of the letter. It has been expressly stated that the rate may need be reviewed when the traffic actually begins to move. The company was put to notice that it has to again approach the Railway Administration. The Railway authorities now states that they have reviewed the whole matter and found no justification to offer a concessional freight rate for Naptha, since fertilizers are deliberately given a low classification in the tariff. From the tenor of Ex. S the Railways are entitled to state so, and it does not amount to resiling from the earlier assurance. No question of estoppel arises in favour of appellant out of the representation made in Ex. CS. We, therefore, agree with the conclusion of the Tribunal but not for all the reasons stated. In the result the appeal fails and is dismissed. In the circumstances. however, we make no order as to costs. S.L. 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{"id": "130196424", "text": "IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction Appellate Side Present :\u00ad Hon'ble Justice Amrita Sinha WP No. 22018 (W) of 2018 CAN 7460 of 2019 Md. Jahidul Islam & Ors. Vs. The State of West Bengal & Ors. With WP No. 22019 (W) of 2018 CAN 7461 of 2019 Sahar Ali Laskar Vs. The State of West Bengal & Ors. For the writ petitioners :\u00ad Mr. Samim Ahammed, Adv. Mr. Arka Maiti, Adv. For the State :\u00ad Mr. Santanu Mitra, Adv. Mr. Shamim Ul Bari, Adv. [in WP No. 22018 (W) of 2018] Mr. Tapan Mukherjee, Adv. Mr. Pritam Chowdhury, Adv. [in WP No. 22019 (W) of 2018] For the respondentnos. 3, 4 and 5 :\u00ad Mr. P. S. Bhattacharyya, Adv. Mr. S. S. Koley, Adv. Mr. Arunava Maiti, Adv. For the AICTE :\u00ad Mr. Sunil Singhania, Adv. Hearing concluded on :\u00ad 20.01.2020 Judgment on :\u00ad 13.05.2020 Amrita Sinha, J.:\u00ad W.P No. 22019 (W) of 2018 The petitioner is an OBC\u00adA category candidate. He possesses the qualification of Bachelor in Technology (B.Tech) in Computer and Engineering from Aliah University. He obtained the aforesaid qualification in the year 2014 upon completion of a regular course of four years. He cleared the Graduate Aptitude Test in Engineering (GATE)\u00ad2017 and obtained the score of 40.79. In response to an advertisement dated 25 th February, 2017 published by the West Bengal State Electricity Distribution Company Limited, hereinafter referred to as 'the Company', the petitioner participated in the recruitment process for being appointed in the post of Assistant Engineer (IT & C). He was issued admit card for participating in the recruitment process. He appeared for personal interview and according to him, he performed reasonably well. Sometime in June, 2018 the petitioner came to learn that successful candidates were being issued appointment letters by the Company. As the petitioner did not receive any communication from the Company he tried to collect information of the same. On enquiry the petitioner got to learn that his candidature was cancelled. In response to an application made under the Right to Information Act, 2005 the petitioner was informed that the appointment letter was not issued in his favour even though he obtained higher marks than the last empanelled candidate, allegedly because the B.Tech course pursued by him was not approved by the All India Council for Technical Education (AICTE). The petitioner was further informed that he received a total score of 52.12 and the score of the last empanelled candidate was 36.74. W.P No. 22018 (W) of 2018 The petitioners are OBC\u00adA category candidates. They obtained the B.Tech Degree in Electrical Engineering during the period 2013\u00ad2015 from the Aliah University after completion of a regular course of four years. In response to an advertisement published by the Company the petitioners applied for being appointed in the post of Sub\u00adAssistant Engineer (Electrical). The petitioners participated in the written test and the computer proficiency test. As the petitioners were not called for the viva voce test the petitioners made enquiry wherefrom they learnt that their candidatures stood cancelled. On an application made under the Right to Information Act the petitioners were informed that their application could not be taken up for consideration as the B.Tech course completed by them was not approved by AICTE. The petitioners have filed the writ petition being aggrieved by the action of the Company in cancelling their candidature by not recognising the B.Tech degree obtained by them. The issue which falls for consideration in both the writ petitions is whether the Company was right in rejecting the candidature of the petitioners on the ground of non\u00adapproval of their B.Tech course by AICTE. As the issue to be decided in both the writ petitions are identical, both the petitions were taken up for consideration analogously and are being disposed of by this common judgment. According to the petitioners their qualification of B.Tech has been obtained from the Aliah University which is established under the Aliah University Act, 2007. The said Act was passed by the West Bengal Legislative Assembly and according to Section 2(h) and Section 10(k) of the AICTE Act, 1987 the University is empowered to grant degrees on its own, without the approval of AICTE. The petitioners have relied upon the various provisions of the UGC Act, 1956, AICTE Notifications dated 27th January, 2005 and 29th January, 2014, the Aliah University Act, 2007 in support of their contention that the respondent authority erred in rejecting their candidature. The petitioners further submit that Aliah University is recommended by the University Grants Commission as a State University and accordingly the degree granted by Aliah University is valid and the Company ought to recognize the said degree for the purpose of considering their candidature for appointment. The petitioners have annexed documents to show that AICTE has approved the B.Tech course offered by Aliah University with effect from 2015 and accordingly the degree awarded by the said University in the year 2014 and prior thereto should be deemed and treated to be an approved degree by AICTE. The petitioners pray for a direction upon the Company to issue appointment letters in their favour as they obtained more or nearly same marks as that of the last empanelled candidates in the respective posts. The petitioners rely upon the judgment delivered by the Hon'ble Supreme Court in the matter of Bharathidasan University & Anr. -vs\u00ad All India Council for Technical Education & Ors. reported in (2001) 8 SCC 676 paragraphs 8, 9, 10, 13 and 15 wherein the court took into consideration the definition of the expression \"technical institution\" under Section 2(h) of the AICTE Act which mentions that technical institution means an institution, not being a university which offers courses or programmes of technical education. It has been submitted that University has been kept out of the definition of technical institution. In the said judgment the court also took note of the fact that according to Section 2(i) of the AICTE Act \"University\" means a university defined under Clause (f) of Section 2 of the University Grants Commission Act, 1956 and also to be inclusive of an institution deemed to be a university under Section 3 of the said Act, the court was of the opinion that any regulation in exercise of powers under Section 23 of the Act, in so far as, it compels the universities to seek for and obtain prior approval and not to start any new department or course or programme in technical education (Regulation 4) and empower itself to withdraw the said approval, in a given case of contravention of the Regulations (Regulation 12), are strictly opposed and inconsistent with the provisions of Section 10(1)(k) of the Act and consequently void and unenforceable. The court held that the Regulation of AICTE could not have made, so as to bind universities/University Grants Commission in the matter of any necessity to seek prior approval to commence a new department or course and programme in technical education in any university or any of its departments and constituent institutions. The petitioners submit that in view of the law laid down by the Hon'ble Supreme Court, Aliah University was not required to seek any prior approval for granting the degree in technical education. The petitioners also rely upon the judgment delivered by a three\u00adjudge Bench of the Hon'ble Supreme Court in the matter of Dr. B. L. Asawa -vs\u00ad State of Rajasthan & Ors. reported in (1982) 2 SCC 55 wherein the court held that a degree granted by a university duly established by statute in the country has ipso facto to be regarded, accepted and treated as valid throughout the country. In the absence of any express provision to the contrary, such a degree does not require to be specifically recognized by other universities in any State in India before it can be accepted as a valid qualification for the purpose of appointment to any post in such a State. The petitioners submit that the Company ought to have appointed the petitioners in the post in question by treating their degree to be a valid one, as the same was awarded by a State university duly recognised by the UGC, more so, because they obtained reasonably more marks than that of the last empanelled candidates. Per contra, the learned advocate appearing on behalf of the Company submits that in the advertisement published on 25 th February, 2017 there was a specific indication that for the post of Assistant Engineer (IT & C), the educational qualification required is B.E./ B.Tech/ B.Sc (Engg.) degree in Information Technology / Computer Science / Electronics / Electronics & Telecommunications / Electronics & Communication / M.Sc (Computer Science)/ MCA/ B.Sc. (Hons.) with B.Tech (three years' duration) in Computer Science and Engineering from any Institute approved by AICTE/IITs. The educational qualification for being appointed in the post of Sub\u00ad Assistant Engineer (Electrical) is diploma in Electrical Engineering from any Institute/College duly recognised by any of the State Council of Technical Education (SCTE). It was specifically mentioned that the degree/diploma has to be approved by AICTE/ SCTE. The Company relies upon the communication made by the training and placement officer of the Aliah University specifically mentioning that the B.Tech courses offered by the Aliah University were not approved by AICTE during the academic years 2010 to 2015. It has been submitted that as the petitioners did not meet the requisite qualification, as prescribed in the advertisement, the employment was rightly not offered to them. It has further been contended that the petitioners never challenged the advertisement which required candidates to possess degrees/diplomas from any Institute approved by AICTE/SCTE. The petitioners being aware of the eligibility criteria participated in the recruitment process. As soon as it was revealed that the petitioners did not meet the requisite eligibility criteria as per the advertisement their candidature was cancelled. It has been urged that as the petitioners did not possess the requisite minimum essential qualification as prescribed in the advertisement, they do not have any right to be considered for appointment. Ld. Advocate for AICTE submits that the B. Tech course of the petitioners was not approved by ACITE. The respondents pray for dismissal of the writ petitions. I have heard the submissions made on behalf of all the parties. The minimum essential qualification prescribed for appointment in the post of Assistant Engineer (IT & C), as published in the advertisement, is set out herein below:\u00ad \"B.E./B.Tech/B.Sc.(Engg.) degree in Information Technology/Computer Science/Electronics/Electronics and Telecommunication/Electronic and Communication/M.Sc. (Computer Science)/MCA/B.Sc. (Hons.) with B.Tech (three years' duration) in Computer Science and Engineering from any Institute approved by AICTE/IITs.\" The minimum essential educational qualification for appointment in the post of Sub\u00adAssistant Engineer (Electrical) is diploma in Electrical Engineering from Institute/College duly recognised by any of the State Council of Technical Education (SCTE). The general instructions attached to the advertisement clearly mentioned that the candidate must fulfil the essential qualification as per the advertisement published and it will be the candidates' prerogative to ensure that he fulfils the eligibility criteria before applying. The petitioners have annexed certificates issued by the Aliah University mentioning that they obtained the degree of Bachelor of Technology in Computer Science and Engineering/Electrical Engineering in the years 2013/ 2014/2015. The Company in their affidavit in opposition has annexed a letter dated 31 st August, 2017, allegedly issued by the Training and Placement Officer of Aliah University to the Additional General Manager (HR & A) recruitment and manpower planning cell of the Company, inter alia, mentioning that the B.Tech course offered by Aliah University in the stream of Computer Science and Engineering was not approved by AICTE during the academic years 2010\u00ad2014 and 2011\u00ad2015. It was further informed that all B.Tech courses of the University have been approved by AICTE in the academic years 2015\u00ad2016. AICTE has candidly accepted the fact that the degree awarded to the petitioners was not approved by them. The petitioners have not produced any document to show that the diploma/degree awarded by Aliah university was approved by either AICTE or SCTE. From the aforesaid it is crystal clear that, the degree/diploma awarded to the petitioners by the University was not approved by AICTE/SCTE in the year 2014 or prior thereto. The minimum essential qualification required for participating in the selection process was a degree/diploma approved by AICTE. Admittedly, the degree/ diploma awarded by the University in favour of the petitioners was not approved by either the Central or State Council of Technical Education. The learned advocate representing the petitioners strenuously submits that, as the B.Tech degree/ diploma was awarded by the University, the same is not required to be approved by AICTE/ SCTE. The petitioner has relied upon the provisions of the AICTE Act, 1987, the Aliah University Act, 2007, the UGC Act, 1956 and the various notifications issued by AICTE from time to time, in support of his contention that the degree obtained by the petitioners is not required to be approved by AICTE. It has been contended that it is the degree that matters and not the approval of AICTE. As long as the petitioners possesses the degree of B.Tech (Computer Science and Engineering)/(Electrical) from a university, recognised by UGC, the degree is not required to be separately approved by AICTE/ SCTE. Prior to going into further discussions, it is noted that, the petitioners have neither challenged the advertisement nor the educational criterion set out in the advertisement for appointment in the various posts. The petitioners were ineligible to participate in the selection process the day the advertisement was published, i.e from the very inception of the recruitment process, as they did not possess the minimum essential qualification as prescribed therein. They do not appear to be aggrieved by the act of the Company in prescribing the minimum requirement of the degree/ diploma to be approved by AICTE/ SCTE. It appears that, the petitioners were all along aware that their degree/diploma was not approved by AICTE/ SCTE, but even then, took the risk of applying in response to the said advertisement, presumably on the mistaken notion that the degree/ diploma does not require any approval from AICTE/ SCTE. Whether the degree/diploma awarded by Aliah university is at all required to be separately approved by a Council of Technical Education is a different issue altogether. According to the petitioners, the degree awarded by Aliah University is equivalent to the degree awarded by any other Institute approved by AICTE/IITs. The Aliah University in their communication to the Company specifically mentioned that all the B.Tech courses of the university have been approved in the academic year 2015\u00ad2016. The aforesaid statement made by the Training and Placement Officer of the University in the letter dated 31 st August, 2017 negates the contention of the petitioners, that there was no requirement for obtaining approval of AICTE in respect of the B.Tech courses conducted by the Aliah University. Had there been no requirement of approval, then the question of granting approval to the B.Tech courses awarded by the University, does not and could not arise at all. The categorical averment by the Aliah University, that the degree of the petitioners awarded by Aliah University was not approved, stands admitted. The Company fixed the minimum essential qualification for appointment being a degree/diploma from any Institute approved by AICTE/IITs/ SCTE. It is always the choice and prerogative of an employer to fix up the minimum essential educational qualification required for appointment. The same is usually fixed as per the requirement of the employer. Fixing up the selection mode, procedure, criteria for recruitment, is the sole domain of the employer and it has been consistently laid down that the courts should abstain from transgressing into the jurisdiction of the employer, unless of course, the same is patently illegal or arbitrary. In the opinion of the Court, the act of the Company in restricting appointment amongst candidates possessing degree/ diploma approved by AICTE/ SCTE, is neither illegal nor arbitrary. Since the eligibility criteria prescribed for appointment is not under challenge, accordingly, whether the degree awarded by Aliah University and the degree awarded by any other Institute approved by AICTE/IITs are equivalent to each other, is not an issue to be decided in the instant writ petition. It is also not required to be decided whether the University was required to get the courses approved by AICTE or whether the degree awarded by the University required a separate approval or not. The issue of equivalence of the degrees, one approved by AICTE and the other not, has not been addressed by the respondents at all. The issue of validity of the degree awarded by the Aliah University has also not been addressed by the respondents. The clear stand of the respondent is that, as the petitioners did not possess a degree/diploma approved by AICTE/ SCTE, accordingly, the application of the petitioners for being appointed in the post in question, has rightly been rejected by the Company. In view of the stand taken by the respondents, the ratio of the decisions relied upon by the petitioners, in my opinion, will not be applicable in the facts and circumstances of the instant case. The petitioners have brought to the notice of this court that the Company by an office order dated 23 rd October, 2019 has modified the existing Recruitment Policy 2010 with regard to the eligibility criteria and the layout of qualification. It mentions that candidates with B.E./B.Tech/B.Sc. (Engineering) degree in the respective branch of engineering from any university or deemed university duly recognized by UGC or institute approved by AICTE, IITs/NITs or any institute of eminence or national importance or concerned statutory council (wherever applicable) will be eligible to apply for recruitment for Class\u00adI technical post. The office order is prospective in operation. As admittedly, the petitioners did not possess the requisite qualification, as per the advertisement, the action of the Company in not appointing the petitioners, even though they scored nearly similar or more marks than the last empanelled candidates, cannot be faulted. The employer Company always has the liberty to review and modify the eligibility criteria of the recruitment process as and when required, and it is not proper for the court to intrude into the domain of the employer. The employer is the best person/authority to know what is exactly required from his/its employee. A writ of Mandamus can be issued only in cases of proven breach of the fundamental or statutory right of a citizen. In the instant case, it does not appear that there has been any breach in either the fundamental or the statutory right of the petitioners. Accordingly, no direction can be issued upon the Company to treat the petitioners as eligible candidates for selection to the posts in question. Moreover, there may be candidates from various other universities possessing similar degree/diploma not approved by AICTE/ SCTE, who may have applied in response to the said advertisement, and may have met the same fate. Many may not have even applied, knowing fully well, that their degree was not approved by AICTE. The petitioners participated in the selection process without any murmur. Being unsuccessful, they cannot turn around and raise issue with the prescribed minimum essential qualification fixed by the employer. At the same time, they ought not to get any preferential treatment only because they have approached the court for relief. Since however it appears that the Company has modified its recruitment policy and have taken a decision that the candidates possessing B.Tech degree from any University, duly recognized by UGC will be eligible to apply, and as the University awarding degree to the petitioners was duly recognized by UGC it will be open for the Company to reconsider the case of the petitioners for appointment in the post in question within a period of eight weeks from the date of communication of a copy of this order. The reconsidered order of the Company will be communicated to the petitioners within a week thereafter. It is specifically made clear, that the order passed by the court shall neither be treated as a mandate upon the respondents to consider giving appointment to the petitioners, nor will it create any right in favour of the petitioners to be appointed in the posts in question. The Company shall have and exercise the discretion to appoint the best available candidate. W.P. Nos. 22018 (W) of 2018 and 22019 (W) of 2018 are disposed of. Urgent certified photocopy of this judgment, if applied for, be supplied to the parties or their advocates on record expeditiously, on compliance of usual legal formalities. 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{"id": "1063151", "text": "PETITIONER: SREE SREE ISHWAR SRIDHAR JEW Vs. RESPONDENT: SUSHILA BALA DASI AND OTHERS. DATE OF JUDGMENT: 16/11/1953 BENCH: BHAGWATI, NATWARLAL H. BENCH: BHAGWATI, NATWARLAL H. MUKHERJEA, B.K. BOSE, VIVIAN CITATION: 1954 AIR 69 1954 SCR 407 CITATOR INFO : R 1965 SC1874 (17) R 1974 SC 740 (10) ACT: Hindu law-Religious endowments-Dedication of properties Dedication to idol subject to charge in favour of heirs or bequest to heirs subject to charge in favour of idol- Construction of will-Adverse possession-Possession of shebait, whether can be adverse to idol. HEADNOTE: The question whether the idol itself is the true beneficiary subject to a charge in favour of the heirs of the testator, or the heirs are the true beneficiaries subject to a charge for the upkeep, worship and expenses of the idol, has to be determined by a conspectus of the entire provisions of the deed or will by which the properties are dedicated. Pande Har Narayan v. Surja, Kunwari (I.L.R. 47 I.A. 143) referred to. A provision giving a right to the sevayats to reside in the premises dedicated to the idol for the purpose of carrying on the daily and periodical worship and festivals does not detract from the absolute character of a dedication to the idol. Gnanendra Nath Das v. Surendra Nath Das (24 C.W.N. 1026) referred to. No shebait can, so long as he continues to be the shebait, ever claim adverse possession against the idol. Surendrakrishna Ray v. Shree Shree Ishwar Bhubaneshwari Thakurani (I.L.R. 60 Cal. 54) approved. Judgment of the Calcutta High Court affirmed. JUDGMENT: CIVIL APPELLATE JURISDICTION Civil Appeal No. 201 of 1952. Appeal from the Judgment and Decree dated the 5th March, 1951, of the High Court of judicature at Calcutta (Harries C.J. and Banerjee J.) in Appeal from Original Decree No. 118 of 1950, arising out of the Judgment and Decree dated the 15th June, 1950, of the said High Court in its Ordinary Original Civil jurisdiction in Suit No. 2379 of 1948. N.C. Chatterjee (S. N. Mukherjee, with him) for the appellant. N.N. Bose (A. K. Dutt, with him) for the respondent in Civil Appeal No. 201 of 1952 and petitioner for special leave. M.C. Setalvad, Attorney-General for India, (B. Sen, with him) for respondents Nos. 1, 2 and 3 in the petition for special leave. 1953. November 16. The Judgment of the Court was delivered by BHAGWATI J.-This is an appeal on a certificate under article 133(1) of the Constitution from a judgment and decree passed by the Appellate Bench of the High Court of Calcutta, modifying on appeal the judgment and decree passed by Mr. Justice Bose on the original side of that court. One Dwarka Nath Ghose was the owner of considerable moveable and immoveable properties. On the 10th June, 1891, he made and published his last will and testament whereby he dedicated to this family idol Shree Shree Iswar Sridhar Jew his two immoveable properties, to wit, premises No. 41 and No. 40/1. Grey Street in the city of Calcutta. He appointed his two sons Rajendra and Jogendra executors of Ms will and provided that his second wife Golap Sundari and the two sons Rajendra and jogendra should perform the seva of the deity and on their death their heirs and successors would be entitled to perform the seva. Dwarka Nath died on the 16th March, 1892, leaving him surviving his widow Golap Sundari and his two sons Rajendra and Jogendra. On the 19th July, 1899, Rajendra made and published his last will and, testament whereby he confirmed the dedication made by Dwarka Nath with regard to premises Nos. 41 and 40/1 Grey Street and appointed his brother Jogendra the sole executor thereof. He died on the 31st January,1900, and Jogendra obtained on the 24th April, 1900,. probate of his said will. Probate of the will of Dwarka Nath was also obtained by jogendra on the 31st August, 1909. On the 4th September 1909, Bhupendra, Jnanendra. and Nagendra, then a minor, the three sons of Rajendra filed a suit, being Suit No. 969 of 1909,on the original side of the High Court at Calcutta against Jogendra, Golap Sundari and Padma Dassi, the widow of Sidheswar, another son of Rajendra, for the construction of the wills of Dwarka Nath and Rajendra, for partition and other reliefs. The idol was not made a party to this suit. The said suit was compromised and on the 24th November, 1910, a consent decree was passed, whereby jogendra and Golap Sundari gave up their rights to the sevayatship and Bhupendra, Jnanendra and Nagendra became the sevaits of the idol, a portion of the premises No. 41 Grey Street was ;allotted to the branch of Rajendra and the remaining portion was allotted to jogendra absolutely and in consideration of a sum of Rs. 6,500 to be paid to the plaintiffs, jogendra was declared entitled absolutely to the premises No. 40/1 Grey Street. The portions allotted to Jogendra were subsequently numbered 40/2-A Grey Street and the portion of the premises No. 41 Grey Street allotted to the branch of Rajendra was subsequently numbered 41-A Grey Street. Jogendra died on the 5th August, 1911, leaving a will whereby he appointed his widow Sushilabala the executrix thereof. She obtained probate of the will on the 6th August, 1912. Disputes arose between Bhupendra, jnanendra and Nagendra, the sons of Rajendra, and one Kedar Nath Ghosh was appointed arbitrator to settle those disputes. The arbitrator made his award dated the 12th October, 1920, whereby he allotted premises No. 41-A Grey Street, exclusively to Nagendra as his share of the family properties. Nagendra thereafter executed several mortgages of the said premises. The first mortgage was created by him in favour of Snehalata Dutt on the 19th May, 1926. The second mortgage was executed on the 4th June, 1926, and the third mortgage on the 22nd February, 1927. On the 23rd February, 1927, Nagendra executed a deed of settlement of the said premises by which he appointed his wife Labanyalata and his wife's brother Samarendra Nath Mitter trustees to carry out the directions therein contained and in pursuance of the deed of settlement he gave up possession of the said premises in favour of the trustees. Snehalata Dutt filed in the year 1929 a suit, being Suit No. 1042 of 1929, against Nagendra, the trustees under the said deed of settlement and the puisne mortgagees, for realisation of the mortgage security,. A consent decree was passed in the said suit on the 9th September, 1929. Nagendra died in June, 1931, and the said premises were ultimately put up for sale in execution of the mortgage decree and were purchased on the 9th December, 1936, by Hari Charan Dutt, Hari Pada Dutt and Durga Charan Dutt for a sum of Rs. 19,000. A petition made by the purchasers on the 12th January, 1937, for setting aside the sale was rejected by the court on the 15th March, 1937. Haripada Dutt -died on the 3rd June, 1941, leaving him surviving his three sons, Pashupati Nath Dutt, Shambhunath Dutt and Kashinath Dutt, the appellants before us. Haricharan Dutt conveyed Ms one third share in the premises to them on the 4th March,1944, and Durga Charan Dutt conveyed his one-third share to them on the 3rd May, 1946. They thus became entitled to the whole of the premises which had been purchased at the auction sale held on the 9th December, 1936. On the 19th July, 1948, the family idol of Dwarka Nath, Sree Sree Iswar Sridhar Jew, by its next friend Debabrata Ghosh, the son of Nagendra, filed the suit, out of which the present appeal arises, against the appellants as, also against Susilabala and the two sons of Jogendra by her, amongst others, for a declaration that the premises Nos. 41- A and 40/2-A Grey Street, were its absolute properties and for possession thereof, for a declaration that the consent decree dated the 24th November, 1910, in Suit No. 969 of 1909 and the award dated the 12th October, 1920, and the dealings made by the heirs of jogendra and/or Rajendra relating to the said premises or any of them purporting to affect its rights in the said premises were invalid and inoperative in law and not binding on it, for an account of the dealings with the said premises, for a scheme of management of the debutter properties and for its worship, for discovery, receiver, injunction and costs. Written statements were filed by the appellants and by Susilabala and the two sons of Jogendra denying the claims of the idol and contending inter alia that there was no valid or absolute dedication of the suit properties I to the idol and that the said premises had been respectively acquired by them by adverse possession and that the title of the idol thereto had been extinguished. The said suit was heard by Mr. Justice Bose who declared the premises No. 41-A Grey Street to be the absolute property of the idol and made the other declarations in favour of the idol as prayed for. The idol was declared entitled to possession of the said premises with mesne profits for three years prior to the institution of the suit till delivery of possession, but was ordered to pay as a condition for recovery of possession of the said premises a sum of Rs. 19,000 to the appellants with interest thereon at the rate of 6 per cent. per annum from the 19th July, 1945, till payment or till the said sum was deposited in court to the credit of the suit. The learned judge however dismissed the suit of the idol in regard to the premises No. 40/2-A Grey Street as, in his opinion, Sushilabala as executrix to her husband's estate and her two sons had acquired title to the said premises by adverse possession and the title of the idol thereto had been extinguished. The appellants filed on the 18th August, 1950, an appeal against this judgment being Appeal No. 118 of 1950. The idol filed on the 20th November, 1950, cross-objections against the decree for Rs. 19,000 and interest thereon as also the dismissal of the suit in regard to the premises No. 40/2-A Grey Street. The appeal, and the cross-objections came on for hearing before Harries C. J. and S. N. Banerjee J., who delivered judgment on the 5th March, 1951, dismissing the said appeal and allowing the cross-objection in regard to Rs. 19,000 filed by the idol against the appellants. In regard however to the cross-objection relating to premises No. 40/2-A Grey Street which was directed against Sushilabala and the two sons of jogendra the learned judges held- that the cross-objection against the co-respondents was not maintainable and dismissed the same with costs. The appellants filed on the 31st May, 1951, an appli- cation for leave to prefer an appeal to this court against the said judgment and decree of the High Court at Calcutta. A certificate under article 133(1) of the Constitution was granted on the 4th June, 1951, and the High Court admitted the appeal finally on the 6th August, 1951. On the 22nd November, 1951, the idol applied to the High Court for leave to file cross-objections against that part of the judgment and decree of the High Court,which dismissed its claims with regard to the premises No.40/2-A Grey Street. The High Court rejected the said application stating that there was no rule allowing cross-objections in the Supreme Court.The said cross-objections were however printed as additional record, By an order made by this court on the 24th May, 1953, the petition of the idol for filing cross-objections in this court was allowed to be treated as a petition for special leave to appeal against that part of the decree which was against it, subject to any question as to limitation. The appeal as also the petition for special leave to appeal mentioned above came on for hearing and final disposal before us. The appeal was argued but so far as the petition for special leave to appeal was concerned the parties came to an agreement whereby the idol asked for leave to withdraw the petition on certain terms recorded between the parties. The petition for special leave was therefore allowed to be withdrawn and no objection now survives in regard to the decree passed by the trial court dismissing the idol's claim to the premises, No. 40/2-A Grey Street. The appeal is concerned only with the premises No. 41-A Grey Street. It was contended on behalf of the appellants that the, dedication of the premises NO. 41 Grey Street made by Dwarka Nath under the terms of his will was a. partial dedication, and that his sons Rajendra and jogendra and his widow Golap Sundari, who were appointed sevayats of the idol were competent to deal with premises No. 41 Grey Street after making the due provision for the idol as they purported to do by the terms of settlement, dated the 24th November, 1910. It was further contended that Nagendra, by -virtue of the award dated the 12th October, 1920, claimed to be absolutely entitled to the premises No. 41-A Grey Street and that his possession of the said premises thereafter became adverse which adverse possession continued for upwards of 12 years extinguishing the right of the idol to the said premises. The first contention of the appellants is clearly un- tenable on the very language of the will of Dwarka Nath. Clause 3 of the said will provided \"With a view to provide a permanent habitation for the said deity, I do by means of this will, dedicate the aforesaid immovable property the said house No. 41 Grey Street together with land thereunder to the said Sri Sri Issur Sridhar Jew. With a view to provide for the expenses of his daily (and) periodical Sheba and festivals, etc. The 3 1/2 Cattahs (three and half Cattahs) of rent free land more or less that I have -on that very Grey Street No. 40/1.......his also I dedicate to the Sheba of the said Sri Sri Sridhar Jew Salagram Sila Thakur. On my demise none of my heirs and representatives shall ever be competent to take the income of the said land No. 40/1 and spend (the same)for household expenses. If there be any surplus left after defraying the Debsheba expenses the same shall be credited to the said Sridhar Jew Thakur's fund and with the amount so deposited repairs, etc; from time to time will be effected to the said house No. 41 with a view to preserve it and the taxes etc., in respect of the said two properties will be paid. . . ...... For the purpose of the carrying on the daily (and) periodical sheba and the festivals, etc. of the said Sri Issur Sridhar Jew Salagram Sila Thakur my said ,second wife Srimati Golap Moni Dasi, and 1st Sriman Rajendara Nath and 2nd, Sriman Jogendra Nath Ghose born of the womb of my first wife on living in the said house No. 41 Grey Street dedicated by me shall properly and agreeably to each other perform the sheba. etc., of the said Sri Sri Issur Sridhar Jew Salagram Sila Thakur and on the death of my said two sons their representatives, successors and heirs shall successively perform the sheba in the aforesaid manner and the executors appointed by this will of mine having got the said two properties registered in the Calcutta Municipality in the name of the said Sri Sri Issur Sridhar Jew Thakur shall pay the municipal taxes, etc.' and shall take the municipal bills in his name. None of my representatives heirs, successors, executors, administrators or assigns shall have any manner of interest in or right to the said two debutter properties and no one shall ever be competent to give away or effect sale, mortgage or in respect of the said two properties nor shall the said two properties, be sold on account of the debts of any one.\" It is quite true,that a dedication may be either absolute or partial. The property may be given out and out to the idol, or it may be subjected to a charge in favour of the idol. \"The question whether the idol itself shall be considered the true beneficiary, subject to a charge in favour of the heirs or specified relatives of the testator for their upkeep, or that, on the other hand, these heirs shall be considered the true beneficiaries of the property, subject to a charge for the upkeep, worship and expenses of the idol, is a question which can only be settled by a conspectus of the entire provisions of the will\": Pande Har Narayan v. Surja Kunwari(1). What we find here in clause 3 of the will is an absolute dedication of the premises No. 41 Grey Street to the idol as its permanent habitation with only the right given to the sevayats to reside in the said premises for the purposes of carrying on the daily and periodical seva and the festivals, etc., of the deity. The said premises are expressly declared as dedicated to the deity. They are to be registered in the municipal records in the name of the deity, the municipal bills have got to be taken also in his name and none of the (1) [1921] L. R. 48 I. A. 143, 145, 146., testator's representatives, heirs, successors, executors, administrators or assigns is to have any manner of interest in or right to the said premises or is to be competent to give away or effect sale, mortgage, etc., of the said premises. There is thus a clear indication of the intention of the testator to absolutely dedicate the said premises to the deity and it is impossible to urge that there was a partial dedication of the premises to the deity. The only thing which was urged by Shri N. C. Chatterjee in support of his contention was that the right to reside in the premises was given to the sevayats and that according to him detracted from the absolute character of the dedication. This argument however cannot avail the appellants. It was observed by Lord Buckmaster in delivering the judgment of the Privy Council in Gnanendra Nath Das v. Surendra Nath Das (1): \"In that case it is provided that the shebait for the time being shall be entitled to reside with his family in the said dwelling-house, but the dwelling-house itself is the place specially set apart for the family idols to which specific reference is made in the will, and in their Lordships' opinion the gift is only a perfectly reasonable arrangement to secure that the man in whose hands the supervision of the whole estate is vested should have associated with his duties the right to reside in this named dwelling place.\" The first contention of the appellants therefore fails and we hold that the dedication of the premises No. 41 Grey, Street to the idol was an absolute dedication. As regards the second contention, viz., the adverse possession of Nagendra, it is to be noted that under the terms of clause 3 of the will of Dwarka Nath the representatives, successors and heirs of his two sons Rajendra and Jogendra were successively to perform the seva in the manner therein mentioned and Nagendra was one of the heirs and legal representatives Of Rajendra. He was no doubt a minor on the 24th November, 1910, when the terms of settlement were arrived at between the parties to the suit No. 969 of (1) (1920) 24 C.W.N. 1926 at p. 1030. 1909. His two elder brothers Jnanendra and Bhupendra were declared to be the then sevayats, but a right was reserved to Nagendra to join with them as a sevayat on, his attaining majority. So far as Nagendra is concerned there is a clear finding of fact recorded by Mr. Justice Bose on a specific issue raised in that behalf, viz, \"Did Nagendra act as shebait of the plaintiff deity under the wills of Dwarka Nath Ghosh and Rajendra Nath Ghosh ?\" that he did act as such shebait and that his possession of the premises No. 41A Grey Street was referable to possession on behalf of the idol, This finding was not challenged in the appeal court and it is too late to challenge the same before us. If Nagendra was thus a sevayat of the idol it could not be urged that his possession could in any manner whatever be adverse to the idol and his dealings with the said premises in the manner he purported to do after the 12th October, 1920, could not be evidence of any adverse possession against the idol. The position of the sevayat and the effect of his dealings with the property dedicated to the idol has been expounded by Rankin C.J. in Surendrakrishna Ray v. Shree Shree Ishwar Bhubaneshwari Thakurani (1) :- \"But, in the present case, we have to see whether the possession of two joint shebaits becomes adverse to the idol when they openly claim to divide the property between them. The fact of their possession is in accordance with the idol's title, and the question is whether the change made by them, in the intention with which they hold, evidenced by an application of the rents and profits to their own purposes and other acts, extinguishes the idol's right. I am quite unable to hold that it does, because such a change of inten- tion can only be brought home to the idol by means of the shebait's knowledge and the idol can only react to it by the shebait. Adverse possession,in such circumstances is a notion almost void of content. True, any heir or perhaps any descendant of the founder can bring a suit. against the shebaits on the idol's behalf and, in the present case, it may be said that the acts of the shebaits must have I been notorious in the family. (1) (I 933) 60 Cal 54 at 7 7 But such persons have no legal duty to protect the endowment and, until the shebait is removed or controlled by the court, he alone can act for the idol.\" We are in perfect accord with the observations made by Rankin C.J. If a shebait by acting contrary to the terms of his appointment or in breach of his duty as such shebait could claim adverse possession of the dedicated property against the idol it would be putting a premium on dishonesty and breach of duty on his part and no property which is dedicated to an idol would ever be safe. The shebait for the time being is the only person competent to safeguard the interests of the idol, his possession of the dedicated property is the possession of the idol whose sevait he is, and no dealing -of his with the property dedicated to the idol could afford the basis of a claim by him for adverse possession of the property against the idol. No shebait can, so long as he continues to be the sevait, ever claim adverse possession against the idol. Neither Nagendra nor the appellants who derive their title from the auction sale held on the 9th December, 1936, could therefore claim to have perfected their title to the premises No. 41-A Grey Street by adverse possession. The second contention of the appellants also therefore fails. The further contention urged on behalf of the appellants in regard to the disallowance of the sum of Rs. 19,000 by the appeal court could not be and was not seriously pressed before us and does not require any consideration. The result therefore is that the appeal fails and must stand dismissed with costs. Appeal dismissed. Agent for the appellant : P. K. Chatterice. Agent for the respondent No. 1 in the appeal and the petitioner, in the petition for special leave : Sukumar Ghose. Agent, for the respondents Nos. 1, 2 & 3 in the petition for special leave : P. K. 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{"id": "47053425", "text": "HIGH COURT OF JUDICATURE AT ALLAHABAD RESERVED A.F.R. Court No. - 1 Case :- MATTERS UNDER ARTICLE 227 No. - 3268 of 2020 Petitioner :- Sardar Gurmeet Singh And Another Respondent :- Smt.Raj Katyal Counsel for Petitioner :- Mohd. Aqueel Khan,Chandra Bhan Gupta Counsel for Respondent :- C.M.Rai Hon'ble J.J. Munir,J. This petition under Article 227 of the Constitution is directed against an order declaring vacancy dated 30.10.2018 followed by an order, rejecting a review of the vacancy order and granting release of the demised premises, passed under Section 15(1) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. 13 of 1972)1. Also impugned is a revisional affirmation of both these orders by the Additional District Judge, Court No. 13, Kanpur Nagar vide judgment and order dated 11.09.2020 passed in Rent Revision No. 36 of 2018. 2. The issue in this petition is about two adjoining shops located in a house bearing Premises No. 122/229, Sarojini Nagar, Kanpur Nagar. The said shops are hereinafter referred to as the 'shops in dispute'. The two shops were let out to one Sundar Singh, who died issue-less. He was unmarried. The owner and the landlady of the demised premises, Smt. Raj Katyal made an application dated 20.12.2017 before the Rent Control and Eviction Officer, Kanpur Nagar, seeking a declaration of deemed vacancy of the shops in dispute on ground that the tenant Sardar Sundar Singh had died on 21.10.2017 and after his death, his nephews, Gurmeet Singh and Ranjeet Singh had illegally occupied the said shops. It was stated that Gurmeet Singh and Ranjeet Singh were not members of the deceased-tenant's family. It was also said that Sardar Sundar Singh was unmarried, and, therefore, had neither left behind a wife or children. The occupation of the shops in dispute by Gurmeet Singh and Ranjeet Singh was claimed to be unlawful, giving rise to a deemed vacancy. 3. It was also asserted that the landlady required the shops in dispute bona fide for her need and that of her family. It was also said that at the appropriate stage, the landlady would make an application seeking release of the shops in dispute under Section 16(1)(b) of the Act of 1972. The Rent Control and Eviction Officer2 directed an inquiry to be made in the matter of vacancy by the Rent Control Inspector. The Rent Control Inspector submitted a report dated 25.01.2018 to the RC & EO. Gurmeet Singh and Ranjeet Singh, who are the petitioners here and faced prospects of the shops in dispute in their possession being declared vacant, filed objection dated 30.04.2018 in the vacancy matter. It was in substance said in the objection that the shops in dispute were rented out to the petitioners' uncle in the year 1967 by the then landlord. The late Sundar Singh, during his lifetime, had admitted the petitioners, his nephews, as partners in his business. In one of the shops, Ranjeet Singh was carrying on trade in watches along with his uncle whereas in the other, Gurmeet Singh was carrying on the trade of dealing in scrap, also along with his uncle. Thus, both the petitioners were in occupation of the two shops as partners with the deceased and lawful tenant thereof, the late Sundar Singh. 4. It was also asserted in the objections that the landlords have never raised any objection to the petitioners occupying and doing business in the shops in dispute over a period as long as 45 years. It was also asserted that after 20.12.2017, when Sardar Sundar Singh suffered from indifferent health, the petitioners had paid rent to the landlady, Smt. Katyal in the sum of Rs.25,000/-, though no receipt for the said rent was issued under the pretext of the plaintiff's receipt book not being by then available. It was also the petitioners' case set out in the objection that both of them had their electricity meters installed on the shop that each was doing business in showing the length and the settled character of their possession as the lawful occupants. 5. Parties exchanged pleadings and evidence in the vacancy matter and the RC & EO vide order dated 30.10.2018 passed in Case No. 2 of 2018, under Section 15(1) of the Act of 1972, declared the shops in dispute to be vacant. He ordered publication of the vacancy in a Hindi and English Daily, directing the matter to come up on 12.11.2018 for consideration of the release/ allotment matter. At this stage, the landlady made an application under Section 16(1)(b) of the Act of 1972 with a prayer to release the shops in dispute in favour of her daughter, Km. Charu Katyal. 6. Pending the release application, the petitioners moved an application for review before the RC & EO, seeking a review of the vacancy order dated 30.10.2018. The RC & EO rejected the review by means of his order dated 04.12.2018 and directed release of the shops in dispute in favour of the landlady. The petitioners challenged both the orders dated 30.10.2018 and 04.12.2018, last mentioned, by carrying a revision under Section 18 of the Act of 1972 to the District Judge, Kanpur Nagar. The revision aforesaid was registered on the file of the learned District Judge as Revision no.36 of 2018. The revision, on assignment, came up before the Additional District Judge, Court no.13, Kanpur Nagar, who proceeded to dismiss the same by his judgment and order dated 11.09.2020. 7. Aggrieved, Gurmeet Singh and Ranjeet Singh have instituted the present petition under Article 227 of the Constitution. 8. Pending this petition, Gurmeet Singh died and his heirs and legal representatives have been substituted as petitioner nos. 1/1, 1/2 and 1/3. 9. Heard Mr. Mohd. Aqueel Khan, learned Counsel for the petitioners and Mr. C.M. Rai, learned Counsel appearing on behalf of the sole respondent-landlord. He waived his right to file a counter affidavit. 10. It appears from a wholesome detail of the case that the petitioners pleaded before the two Courts below that Sardar Sundar Singh and the petitioners' father, Sardar Kesar Singh, who were brothers, were joint tenants of the shops in dispute. Since Sardar Sundar Singh was the elder of the two brothers, rent receipts were issued in his name, but both brothers carried on business jointly in the shops in dispute. Sardar Sundar Singh was unmarried and had no issues. The petitioners' father and the petitioners looked after Sundar Singh, taking care of his needs, including lodging, board, facilitating medical treatment etc. Sardar Sundar Singh died on 21.10.2017. It was after that event that the respondent launched the present proceedings seeking to declare a vacancy and asking for release of the shops in dispute. It was said that the Rent Control Inspector served notice under Rule 8(2) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 19723. Both parties, including the petitioners made their statements before the Rent Control Inspector. The Inspector found the petitioners to be in possession of the shops in dispute. The Inspector was informed that the shops in dispute were earlier owned by one Jagat Ram Thakur, who had rented them out to Sardar Sundar Singh. The petitioners along with Sardar Sundar Singh carried on business jointly in the shops in dispute. 11. There are assertions about the petitioners being paid compensation in the year 1986, on account of their property housed in the shops in dispute along with Sardar Sundar Singh being pillaged, during the 1984 anti-Sikh riots. It is on the basis of collateral evidence, like the compensation that the petitioners received from the Government for the loss sustained during the 1984 riots, the electricity meters installed in their name in the shops in dispute, that the petitioners seek to show that they were into some kind of a partnership business with Sardar Sundar Singh, who was nominally or formally the tenant of the shop along with the petitioners and their father, being the family elder. 12. In substance, it is the endeavour of the petitioners to establish that they, along with Sardar Sundar Singh, were carrying on business in partnership, where their father too was a partner ever since inception of the tenancy. They urged that the shops in dispute were the business premises of a partnership enterprise comprising Sardar Sundar Singh, the petitioners' father Sardar Kesar Singh and the petitioners. This case is urged in order to place the shops in dispute beyond the mischief of the provisions of Section 12(2) of the Act of 1972. Section 12(2) reads : \"12. Deemed vacancy of building in Certain cases.- (1) A, landlord or tenant of a building shall be deemed to have ceased to occupy the building or part thereof if- (a) he has substantially removed his effects therefrom, or (b) he has allowed it to be occupied by any person who is not a member of his family, or (c) in the case of a residential building, he as well as members of his family have taken up residence, not being temporary residence, elsewhere. (2) In the case of a non-residential building, where a tenant carrying on business in the building admits a person who is not a member of his family as a partner or a new partner, as the case may be, the tenant shall be deemed to have ceased to occupy the building. (3) In the case of a residential building, if the tenant or any member of his family builds or otherwise acquires in a vacant state or gets vacated a residential building in the same city, municipality, notified area or town area in which the building under tenancy is situate, he shall be deemed to have ceased to occupy the building under his tenancy : Provided that if the tenant or any member of his family had built any such residential building before the date of commencement of this Act, then such tenant shall be deemed to have ceased to occupy the building under his tenancy upon the expiration of a period of one year from the said date. (4) Any building or part which a landlord or tenant has ceased to occupy within the meaning of sub-section (1), or sub-section (2) , or sub-section (3), shall, for the purposes of this Chapter, be deemed to be vacant.\" 13. The petitioners want this Court to accept that their family comprising their father, Sardar Kesar Singh, Sardar Sundar Singh and the two petitioners, were tenants of the shops in dispute jointly from the inception of the tenancy. It is not that Sardar Sundar Singh alone was the tenant of the shops in dispute but also had the petitioners as partners in his business, housed in the two shops. It is also urged on behalf of the petitioners that they being tenants in occupation of the shops in dispute, with the consent of the landlady much before the commencement of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1976 w.e.f. 05.07.1976, against whom no suit or proceedings for eviction were pending before any Court or Authority on the date of such commencement, their tenancy would stand regularized under Section 14 of the Act of 1972, even if it is otherwise in breach of Section 12(2). It is also urged that proceedings for declaration of vacancy are time barred as the respondent was aware, since 1998 about the business being carried on by the petitioners in the shops in dispute, whereas the application for declaration of vacancy was moved much after 12 years, that is to say, on 12.12.2017. In support of this rule of limitation, vis-a-vis the right of the landlady to initiate proceedings for declaration of vacancy, reliance has been placed on the decision of this Court in Hazi Naseem Ahmad v. R.C.E.O./A.D.M. (C.S.), Varanasi & Others4. The said decision lays down a rule of limitation barring proceedings for declaration of vacancy being initiated after lapse of a period of 12 years from the date of accrual of the cause of action. In Hazi Naseem Ahmad (supra), it has been held: \"6. On a plain reading of the relevant provision of the Act, it does appear that no period of limitation for declaration of a vacancy actually or deemed has been prescribed under the Act. The question, then, arises if no period of limitation has been prescribed, an application for declaration of vacancy can be filed within a reasonable period. It has been held in Abdul Khaliq v. Additional District Magistrate, Varanasi, 2007 (2) ARC 629, that with respect to the proceedings under Section 12 of the Act, a period of 12 years should be taken as reasonable time for initiating the proceedings under the Statute from the date of cause of action arises. In this case, the Court has relied upon a decision of the Apex Court in the case of Mansha Ram v. S. P. Pathak and others, AIR 1983 SC 1239. In Anil Kumar Dixit v. Smt. Maya Tripathi and another, 2006 (1) ARC 377 : 2006 (1) AWC 649, the above view has been reiterated. 7. The aforesaid pronouncements have been constantly followed by this Court as is apparent from Sarla Devi v. Shailesh Kumar and Ors. 2008 (3) ARC 632 and Jamuna Devi v. District Judge, Kanpur Nagar and others, 2009 (1) ARC 266. There is, thus, no reason for me to take a contrary view. 8. In Shambhu alias Shambhu Dayal (supra) it has been held by this Court that a conjoint reading of Sections 11 and 13 of the U.P. Act No. 13 of 1972 prohibits the letting without order of allotment and it can safely be concluded that the Act restrains the landlord for giving the accommodation on rent without a valid order or allotment and none can occupy without issuance of valid allotment order in his favour. 9. It appears that the attention of the Court was not drawn to the earlier decision of this Court in the case of Anil Kumar Dixit v. Smt. Maya Tripathi (supra). Nor the attention of the Court was invited towards the judgment of the Apex Court in the case of Mansha Ram v. S. P. Pathak (supra). Therefore, the decision laid down therein should be read and understood in the context of the fact of that case.\" 14. The learned Counsel for the respondent, on the other hand, has opposed the submissions made by the petitioners and said that given the provisions of Sections 12(1) and 12(2) of the Act of 1972, the petitioners, who are not members of the tenant's family, cannot be inducted as partners or new partners in any business, nor can the tenant permit occupation of a tenanted premises by a person, who is not a member of his family. It is urged that the brother's son does not fall within the definition of family in relation to a tenant of a building as defined under Section 3(g) of the Act of 1972. Therefore, occupation by the petitioners clearly attracts the fiction under Sections 12(1) and 12(2) of the Act of 1972 leading to a deemed vacancy in the shops in dispute. It is also argued that there is no evidence led on behalf of the petitioners to show that they were carrying on business in the shops in dispute as a partnership from inception of the tenancy, along with Sardar Sundar Singh. 15. I have considered rival submissions advanced by the learned Counsel for parties and perused the record. 16. The petitioners' case that the two along with their father and the tenant, late Sardar Sundar Singh, were all tenants together in the shops in dispute, where they were doing business as partners, is difficult to accept. Admittedly, the tenancy stood in the name of late Sardar Sundar Singh alone, about which the petitioners say that the tenancy was recorded formally in his name as he was the senior most member of the family. They want this Court to accept that Sardar Sundar Singh was a karta of sorts of a joint family, where all the four persons were carrying on business in partnership; and, this partnership of ''four' was the tenant in the shops in dispute. There is no rent deed or rent note or rent receipt in the name of the petitioners, their father and Sardar Sundar Singh. There is no document either to show that there was any partnership firm, comprising these men in existence, let alone being that the partnership firm was inducted as a tenant in the year 1967. 17. To the contrary, it is accepted that it was Sardar Sundar Singh who contracted a tenancy of the shops in dispute in the year 1967 with the then owner/ landlord. There is also no municipal assessment record that may show the tenancy to stand jointly in the name of Sardar Sundar Singh, his brother Kesar Singh and the petitioners. There is also no case that there was an order of allotment issued by the competent Authority way back in the year 1967, allotting the shops in dispute to Sardar Sundar Singh, his brother Kesar Singh and the petitioners together, as joint tenants or as a partnership for the purpose of doing business. To the contrary, the tenor of the evidence shows that the shops in dispute were in the exclusive tenancy of Sardar Sundar Singh for the purpose of carrying on his business, that he had divided into two departments, one relating to some kind of a trade in watches and the other in scrap. 18. Evidence is also eloquent about the fact that Sardar Sundar Singh was an unmarried and issue-less man. The two petitioners being his brother's sons, helped him with his business. The petitioners appear to have grown dominant in that business with an aging Sundar Singh. They later on divided the business in the two shops between them with Sundar Singh occupying the back seat until his demise on 21.10.2017. What does not appear to be in doubt is the fact that till the end of his life, it was Sardar Sundar Singh, who was the lawful tenant of the shops in dispute. Tenancy, even in case of one that is regulated or governed by Statute, is a matter of contract between the landlord and the tenant. Unless there be evidence to show that there is an underlying contract between the tenant and the landlord that constitutes a demise of the tenanted premises, it is difficult to infer tenancy from mere incidents of occupation of a premises by one who claims that status. 19. The evidence offered by the petitioners about receiving compensation in the year 1986 for the 1984 Anti-Sikh Riots on ground of their business and property being damaged, that was placed in the shops in dispute, cannot lead to an inference of tenancy of any kind in favour of the petitioners. All that would show is that the petitioners were lending a helping hand to Sardar Sundar Singh in his business, who was their father's brother. One inference could be that taking advantage of this fortuitous circumstance, they claimed compensation for damages to property, that were lawfully the effects of their uncle's business. The other would lead to a result hardly favourable to the petitioners, and that would be that the petitioners indeed entered into a partnership with Sardar Sundar Singh, when their property was destroyed during Anti-Sikh Riots, for which they received compensation from the Government. If that be so, it brooks little doubt that the petitioners not being members of Sardar Sundar Singh's family as defined under Section 3(g) of the Act of 1972, the act of Sardar Sundar Singh in permitting the petitioners, constitutes admission of persons as partners or new partners, who were not members of Sundar Singh's family. It would clearly attract the fiction under Section 12(2) of the Act of 1972, leading to a deemed vacancy. On the evidence that has figured on record, if it is held that Sundar Singh did not admit the petitioners as partners to his business, but with aging years, allowed them to occupy the shops in dispute to carry on their own business, the tenant would still be deemed to have ceased to occupy the shops in dispute under Section 12(1)(b) of the Act of 1972. Section 3(g) of the Act of 1972 enlists, who would be members of the tenant's family for the purposes of the Act. It reads: \"3. Definitions.--In this Act, unless the context otherwise requires-- (g) \"family\", in relation to a landlord or tenant of a building, means, his or her-- (i) spouse, (ii) male lineal descendants, (iii) such parents, grandparents and any unmarried or widowed or divorced or judicially separated daughter or daughter of a male lineal descendant, as may have been normally residing with him or her, and includes, in relation to a landlord, any female having a legal right of residence in that building;\" 20. Clearly, the petitioners, who are collaterals of Sardar Sundar Singh and not his lineal descendants, do not qualify as members of his family. Whichever way, the petitioners' entry in the shops in dispute is viewed during the lifetime of Sardar Sundar Singh, the inference of a deemed vacancy is inescapable. 21. It is alternatively argued that the petitioners being brother's sons of Sundar Singh, who was an issue-less man, were entitled to inherit his tenancy, upon his demise as they are his heirs under the law of succession applicable to parties. In this connection, it is emphasized that for the purpose of inheriting the tenancy, Section 3(g) of the Act of 1972 is not at all relevant. The definition of ''family' there with reference to the provisions of Sections 12(1) and 12(2) would apply, if the petitioners' rights are to be determined as tenants, entering the shops in dispute during the lifetime of Sundar Singh. If they are to be regarded as mere helping hands during Sundar Singh's lifetime, but his heirs entitled to inherit the tenancy upon his demise, Section 3(g) is not at all relevant. In that case, their rights would be governed by Section 3(a)(2) of the Act of 1972. Section 3(a) reads: \"3. Definitions.--In this Act, unless the context otherwise requires-- (a) \"tenant\", in relation to a building, means a person by whom its rent is payable, and on the tenant's death-- (1) in the case of a residential building, such only of his heirs as normally resided with him in the building at the time of his death; (2) in the case of a non-residential building, his heirs]; Explanation.--An occupant of a room in a hotel or a lodging house shall not be deemed to be a tenant;\" 22. In support of their contention, reliance has been placed by Mr. Mohd. Aqueel Khan on behalf of the petitioners on the decision of the Supreme Court in Durga Prasad v. Narayan Ramchandaani (Dead) through Legal Representatives5 where it has been held: \"9. A careful analysis of the above provisions indicates that Section 3(a) uses the word \"heir\". Definition in Section 3(a) deals with the contingency when a tenant dies. It is significant to note that the words \"family member\" are absent in Section 3(a). \"Family member\" are defined under Section 3(g) of U.P. Act 13 of 1972 and is also referred to in Section 12 of U.P. Act 13 of 1972. The word \"heir\" in Section 3(a) is used in relation to a \"tenant\" who has to succeed as \"tenant on the tenant's death\"; while \"family\" is used in Section 12 which deals with a situation of an existing tenant. The definition of \"family\" as occurring in Section 3(g) may not be relevant for the purposes of determining the question as to who would become tenant on the death of the original tenant, since Section 3(a) uses the word \"heir\". 10. In the present case, we are dealing with the case as to who would become \"tenant\" on the death of Lalita. Hence, the definition of \"family\" is not relevant for the purposes of determining as to who would become tenant on the death of tenant Lalita. The only question falling for consideration is whether the appellant brother of the tenant Lalita is an \"heir\" under Section 3(a) of U.P. Act 13 of 1972. The word \"heir\" is not defined in the Act. \"Heir\" is a person who inherits or may inherit by law. Section 3(1)(f) of the Hindu Succession Act defines \"heir\" as-- \"3. (1)(f) \"heir\" means any person, male or female, who is entitled to succeed to the property of an intestate under this Act;\" The word \"heir\" has to be given the same meaning as would be applicable to the general law of succession. In the present case, as pointed out by the High Court, the deceased tenant Lalita being a Hindu female, the devolution of tenancy will be determined under Section 15 of the Hindu Succession Act.\" 23. The aforesaid guidance of their Lordships in Durga Prasad shows without doubt that in the event the tenancy is regarded as one that was exclusively held by Sundar Singh until his death, Section 3(g) of the Act of 1972 would not be relevant to decide, who would inherit the tenancy. That would be governed by Section 3(a) of the Act of 1972. A perusal of Section 3(a) (2) shows that in case of of a non-residential building, it would be the heirs of the tenant. The decision in Durga Prasad clearly holds that the word 'heir' under Section 3(a) of the Act of 1972 has to be given the same meaning as would be applicable under the general law of succession. Admittedly, the parties being Sikhs, their right to succession would be governed by the Hindu Succession Act, 19566. Section 8 of the Act of 1956 provides that the property of a male Hindu dying intestate shall firstly devolve upon his heirs, specified in Class I of the Schedule and if there be none in Class I, upon the heirs, specified in Class II of the Schedule. Section 9 of the Act of 1956 provides for the order of succession amongst heirs in the Schedule. It lays down the rule that various heirs in Class II shall take in the manner that an heir placed in the higher entry, shall be preferred to those in the lower entry. Now, Sundar Singh died intestate leaving behind his brothers, Sardar Kesar Singh and Sardar Balbir Singh. The fact that these two brothers of Sundar Singh were alive at the time of his death, had been recorded for a finding of fact by the learned Additional District Judge in the order impugned. There is no issue about it for a fact. Brothers and brother's sons, both qualify as Class II heirs under the Schedule appended to the Act of 1956. Brothers of a deceased Hindu male instate are placed in Entry II, whereas brother's son is placed in Entry IV. Clearly, therefore, upon death of Sardar Sundar Singh, if any one would have inherited his tenancy, it would be his brothers, Kesar Singh and Balbir Singh. Though, there is a case to begin with that Kesar Singh, Sundar Singh and the petitioners, together had entered the shop in dispute as joint tenants doing business in partnership, it has already been held that there is absolutely no evidence about it. There is no case that Sardar Kesar Singh or for that matter Sardar Balbir Singh, ever laid a claim to succeed to the tenancy of the late Sundar Singh. It is not the case of the petitioners either that they claim through Sardar Kesar Singh in any way. The unexceptionable inference is, therefore, that during lifetime of Sardar Kesar Singh and Sardar Sundar Singh, the petitioners could not have succeeded to the tenancy of Sardar Sundar Singh. 24. It was urged on behalf of the petitioners that Sardar Sundar Singh and Sardar Balbir Singh, being Class II heirs in Entry II of the Schedule, if they did not claim rights to the tenancy they inherited from Sardar Sundar Singh, it would pass to the next available Class II heirs, that is to say, the petitioners, who figure in Entry IV. This submission is not tenable. The correct position of the law is that so long as the heir entitled to inherit is alive, the heir lower down in the order of inheritance cannot inherit. There is no passing over of the heir entitled in the order of priority under the Schedule appended to the Act of 1956, as if it were, if the heir immediately entitled on the death of a Hindu intestate does not assert his right. In this regard, reference may be made to the proposition about a tenancy being inherited by a person lower in order of priority than the heir available and entitled to inherit, that fell for decision of this Court in Om Prakash & Others v. The Prescribed Authority & Others7. In Om Prakash (supra) it was held : \"12. In view of the clear and specific meaning of the word \"heir\" what has to be seen is whether the petitioners would inherit the properties of Ganpat Ram (assuming that he was the original tenant). Succession to the property of a Hindu dying intestate has been indicated in the Hindu Succession Act, 1956. Section 8 of the said Act provides that the property shall devolve upon the heirs specified in Class I of the Schedule and if there was no heir of Class I then upon the heirs specified in Class II and so on. A grandson in the life-time of his father would not inherit the properties of the grandfather dying intestate. Tenancy right is immovable property. It is heritable as any. other immovable property. 13. On the death of Ganpat Ram (assuming that he was the original tenant), the tenancy right would devolve upon his heir in accordance with the provisions of the Hindu Succession Act and consequently Chhotu Ram alone, in his capacity as son and heir of Ganpat Ram, would become the tenant of the premises in question. The petitioners in their capacity as grand children of Ganpat Ram would not inherit the tenancy right in the presence of their father, Chhotu Ram. In any case since it was at no time pleaded that the petitioners along with their father and grand father constituted a joint Hindu family, it is not required of me to look to the provisions of Section 6 of the Hindu Succession Act under which the interest of the deceased devolves upon the surviving members of coparcenary, The Prescribed Authority, therefore, does not appear to have committed any error in rejecting the application of the petitioners on the ground that they have not inherited tenancy rights and that they were not necessary parties to the proceedings under Section 21 of the Act.\" 25. This question whether an heir lower down in order of preference was entitled to inherit the tenancy, arose in the context of Act of 1972 in Man Singh v. Machau Lal & Others8. The facts giving rise to the issue in Man Singh are succinctly narrated in paragraph nos. 2 and 3 of the report, which read : \"2. The facts found by the Courts below and which are not in dispute, lie within a narrow compass. One Smt. Kashi Devi was admittedly residing in the accommodation in dispute as its tenant. The Plaintiff-Respondents were the landlords of the same. At the time of her death in the year 1973, the Appellant who is the son of the brother of Smt. Kashi Devi's husband, was residing with Smt. Kashi Devi. The Appellant's father Gopal Singh, though alive at that time, was, however, not residing with Smt. Kashi Devi. Gopal Singh also died in 1975. On the death of Smt. Kashi Devi the present suit was brought by the Plaintiff-Respondents against the Appellant on the ground that the Appellant was residing with Smt. Kashi Devi only as the latter's licensee and inasmuch as he was not an heir of Kashi Devi he did not inherit her tenancy rights. With the result that after her death the Appellant had ceased to have any legal claim to remain in possession over the disputed accommodation. 3. The defence of the Appellant, on the other hand, was that, firstly, he had legally inherited the tenancy rights of Kashi Devi as one residing with her normally and also being an heir and consequently till his tenancy was determined the Plaintiff could not seek a decree for dispossession; and, secondly, he having been adopted by Nanhe Singh and his wife Smt. Kashi Devi, he became a tenant of the disputed accommodation after the death of Smt. Kashi Devi, Nanhe Singh the original tenant having predeceased Kashi Devi.\" 26. In the context of the said facts, it was held in Man Singh (supra) dealing with a similar contention as the one now raised before us thus : \"10. The question that, however, falls , for determination is whether we should import the considerations of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, as suggested by Sri. S.M. Dayal, in determining the question as to who was the heir of Smt. Kashi Devi entitled to claim the tenancy rights after the death of Kashi Devi. Sri. Dayal submitted that as Gopal Singh was not residing with Smt. Kashi Devi, he did not inherit her tenancy rights. Consequently this Court should hold that there was no heir available among those mentioned in the second entry of Class II. That being so, the heirs mentioned in the fourth entry of Class II should be deemed to have inherited the tenancy rights of Smt. Kashi Devi. 11. I find it difficult to accept the contention. The submission can be accepted only by stretching the language of the statute, viz. Section 3(a)(1) of U.P. Act No. 13 of 1972 beyond permissible limits. In fact, what the learned Counsel wants this Court to hold is that in construing the term 'heirs' in Clause (1) we should read further that if a preferential heir was not residing with the deceased tenant then the heir next in order of preference as prescribed under the Hindu Succession Act who was residing with the tenant, should be deemed to be the heir of the tenant within the meaning of that clause. Such a construction is not warranted either by the language or the scheme or purpose of U.P. Act No. 13 of 1972. On a plain and simple construction of Section 3(a)(1) of this Act, only that heir would be entitled to inherit the tenancy rights in respect of residential accommodation who was actually residing with the tenant and the heir would be one who is entitled under the personal law to inherit the rights of the deceased............\" 27. The question again came up for consideration before this Court in a much later decision in Ishwar Chand v. Additional District Magistrate (Civil Supply)/R.C.E.O., Kanpur Nagar & Another9. It was, again, a case where a grandson laid claim to the inheritance of the grandfather's tenancy, because he was living with him, whereas the tenant's son was not. The question that arose, therefore, was whether the grandson, who was living with the tenant in the residential building, was entitled to inherit as his heir, because the tenant's son was not normally residing with him. In Ishwar Chand (supra) is was held : \"6. The contention of the learned counsel for the petitioner is that after the death of the tenant, any of his heirs who normally resided with him at the time of his death is entitled to inherit the tenancy rights and where a person who is entitled to inherit the tenancy was not normally residing with the tenant at the time of his death, such other person who comes in the category of an heir under the law is entitled to Inherit the tenancy if he was residing with the tenant at the time of his death. The personal law will determine as to who is the person under the law to inherit the tenancy. Section 8 of the Hindu Succession Act. 1956 provides that the property of a male Hindu dying intestate shall devolve according to the provisions mentioned under the Act- (a) firstly, upon the heirs, being the relatives specified in class 1 of the Schedule ; (b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule ; (c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased ; and (d) lastly, if there is no agnate, then upon the cognates of the deceased. 7. Section 9 of the Act provides that among the heirs specified in the Schedule, those in class I shall take simultaneously and to the exclusion of all other heirs ; those in the first entry in class II shall be preferred to those in the second entry ; those in the second entry shall be preferred to those in the third entry ; and so on in succession. 8. The son has preference to succeed to the exclusion of grandson. The inheritance takes place on the death of the tenant. In case he is survived by four sons, such son shall inherit the tenancy who was residing with his father but in case the tenant dies leaving behind him the only son but he was not residing and shifted elsewhere but his grandson is living, he will not inherit the tenancy as for inheritance two conditions are required to be fulfilled ; firstly, that he inherits the rights of the deceased tenant to the property under the personal law and secondly, he was residing at the time of death of the tenant in such residential building............\" 28. It must be remarked that the decisions in Man Singh (supra) and Ishwar Chand (supra) and the earlier one in Om Prakash (supra) proceed on the principle that in the presence of various heirs of the deceased-tenant under the Act of 1956, tenancy would not go to an heir lower in order of preference, whether the heir immediately entitled to inherit, according to the order of preference, accepts the tenancy or not, or is otherwise not entitled under the Act of 1972. In no case, in the presence of an heir of a tenant higher in order of preference or class, an heir in a lower class or lower category of preference would take the tenancy. It is, thus, held that the petitioners would not inherit the tenancy of the late Sardar Sundar Singh during the lifetime of Sardar Kesar Singh and Sardar Balbir Singh, whether they claimed the tenancy or forsook it. 29. As a corollary to the submission that the petitioners have inherited the tenancy, learned Counsel for the petitioner has made another point, which depends upon a testamentary succession to the tenancy. The attention of the Court has been drawn to the fact that the late Sardar Sundar Singh had executed a will dated 04.07.2011, that is on record as Paper No. 170 before the Court of first instance, according to which, the testator left all his movable and immovable property to the wives of the petitioners. Learned Counsel for the petitioners has urged that this point was mooted before the Courts below, particularly the Court of Revision, where the learned Additional District Judge looked into the will dated 04.07.2011 propounded by the petitioners to claim tenancy. It is submitted by the learned Counsel that the learned Additional District Judge committed an error by accepting another and a later will dated 29.01.2013, said to be left by the deceased Sardar Sundar Singh, revoking his earlier will as one based on fraud and by the later device, bequeathing all his movable and immovable properties to his niece, Km. Harmeet Kaur, daughter of his brother Sardar Balbir Singh. Learned Counsel for the petitioners submits that the learned Additional District Judge committed an error in accepting the subsequent will, because the landlord could not have propounded the said will. He was neither the executor of the will nor its beneficiary. Km. Harmeet Kaur, the beneficiary of the will, never came forward to propound the will dated 19.01.2013 that derogated from the earlier will dated 04.07.2011 left in favour of the petitioners' wives. Learned Counsel for the petitioners submits that based on the will dated 04.07.2011, the petitioners would inherit the tenancy as testamentary heirs of the tenant, the late Sardar Sundar Singh. 30. There are many fallacies to this submission, the one most obvious being that the will of the year 2011 did not bequeath the tenancy to the petitioner, but to their wives. If the will of 2011 is to be accepted as a valid source of acquisition of tenancy rights, the tenancy would go to the petitioners' wives, and not the petitioners. But, that is not a reason that should, at all, weigh with this Court to dispose of this part of the submission urged on behalf of the petitioners. The reason is to be found in the principle of law that is attracted to the inheritance of tenancy rights under Section 3(a) of the Act of 1972. The principle appears to be that heirs entitled to inherit the tenancy referred to under Section 3 (a) are the heirs of the deceased tenant, according to intestate succession; not his testamentary heirs. While the testamentary heirs may be entitled to take all that has been bequeathed to them, according to the deceased-tenant's will, the tenancy would be governed not by the bequest, but by intestate succession, under the Act of 1956. The principle aforesaid, which does not appear to have been doubted or overturned, was laid down by this Court in Ratan Lal v. The Additional District Judge, Bulandshahr & Others10. In Ratan Lal (supra) it was held : \"20. This gives rise to the question about the scope of the word 'heirs' used in Section 3 of U.P. Act No. 13 of 1972. Counsel contended that the word 'heirs', would include testamentary heirs as well. The word 'heir' has several meanings. In some of the cases this word has been interpreted as including the testamentary heirs whereas in some other cases it has been held as confining its operation only to the heirs of the deceased to be determined in accordance with the personal law. The word 'heirs' does, I think, connote an idea of succession as well as an idea of consanguinity. In the light of the various provisions of the Act, it appears that the word 'heirs' in relation to a tenant should be construed as referring to the persons entitled to the property under the law of intestate succession applicable on the date when the testator dies. 21. Counsel for both the parties have referred to the various dictionary meanings in support of their respective contentions. It is not necessary to refer to those inasmuch as I have already said above that in the context in which the word 'heir' has been used, it is amply clear that this expression must be confined to the persons receiving the property if a tenant dies intestate. In Wealth-tax Commissioner, A.P. v. Courts of Wards, AIR 1977 SC 113, the Supreme Court has laid down the principle which would apply to such matters as follows: We think that it is not correct to give as wide a meaning as possible to terms used in a statute simply because the statute does not define an expression. The correct rule is that we have to endeavour to find out the exact sense in which the words have been used in a particular context. We are entitled to look at a statute as a whole and give an interpretation in consonance with the purpose of the statute and what logically follows from the terms used. We are to avoid obscure and absurd results.........\" 31. Thus, some for added reasons and others, for very different, this Court concurs in the conclusions that the learned Additional District Judge has reached, to wit, that the petitioners are not entitled to inherit the tenancy of Sardar Sundar Singh, either as his heirs intestate or testamentary, under the Act of 1972. A fortiori, this Court must also concur with the conclusion of the learned Additional District Judge that after the death of Sardar Sundar Singh, the shops in dispute have fallen vacant. 32. The other submission advanced on behalf of the learned Counsel for the petitioners based on the principle in Hazi Naseem to the effect that the application for declaration of vacancy, in regard to the shops in dispute being moved in the year 2017, it would be barred by limitation, inasmuch as the petitioners were carrying on business in the said shops since the year 1998, is also without substance. This is for the reason that there is precisely no evidence to indicate at what point of time the petitioners came to occupy the shops in dispute, either exclusively or together with Sardar Sundar Singh, to do business in their own right, as contrasted to their position as nephews of Sardar Sundar Singh, who would help him in one way or the other with his business, without any kind of right or occupation of their own. It has not been indicated as to when the electricity meters in the petitioners' name were installed, or other evidence to show the petitioners' occupation of the shops in dispute in their own right, exclusively or together with the late Sardar Sundar Singh. In the absence of a precise date, by the time at or about which the petitioners came to occupy the shops in their own right, exclusively or along with Sardar Sundar Singh to do their own business, it is very difficult to apply the bar of limitation of 12 years against the landlady, seeking a declaration of vacancy. 33. Still another submission that has been pressed in aid by learned Counsel for the petitioners to defend the validity of their possession as lawful tenants is the right of regularization of existing tenants under Section 14 of the Act of 1972. Section 14 is extracted below : \"Section 14 - Regularisation or occupation of existing tenants-Notwithstanding anything contained in this Act or any other law for the time being in force, any licensee (within the meaning of Section 2-A) or a tenant in occupation of a building with the consent of the landlord immediately before the commencement of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1976, not being a person against whom any suit or proceeding for eviction is pending before any Court or authority on the date of such commencement shall be deemed to be an authorised licensee or tenant of such building.\" 34. A perusal of the provisions under Section 14 of the Act of 1972 makes it pellucid that in order to attract the creation of a valid tenancy by regularization under this provision of the Statute, the person in occupation of a building must be in occupation on the date of enforcement of the Act No. 28 of 1976, that is, before 05.07.1976 either as a licensee or as a tenant, with the consent of the landlord. There is absolutely no evidence on record to show that the petitioners were ever in occupation of the shops in dispute before 05.07.1976 or that they were in such occupation either as licensees or tenants and with the consent of the landlord. About this fact, there is an eloquent finding by the Revisional Court recorded in the impugned order, which reads : \"\u092a\u0941\u0928\u0930\u0940\u0915\u094d\u0937\u0923\u0915\u0930\u094d\u0924\u093e\u0917\u0923 \u092a\u094d\u0930\u0936\u094d\u0928\u0917\u0924 \u0926\u0941\u0915\u093e\u0928 \u092e\u0947\u0902 \u0915\u093f\u0938 \u0924\u093f\u0925\u093f \u0938\u0947 \u0915\u092c\u094d\u091c\u0947 \u092e\u0947\u0902 \u0939\u0948\u0902, \u0907\u0938 \u0924\u0925\u094d\u092f \u0915\u093e \u0909\u0932\u094d\u0932\u0947\u0916 \u0928 \u0924\u094b \u0905\u0935\u0930 \u0928\u094d\u092f\u093e\u092f\u093e\u0932\u092f \u0915\u0940 \u092a\u0924\u094d\u0930\u093e\u0935\u0932\u0940 \u092e\u0947\u0902 \u0915\u093f\u092f\u093e \u0917\u092f\u093e \u0939\u0948 \u0914\u0930 \u0928 \u0939\u0940 \u092a\u094d\u0930\u0936\u094d\u0928\u0917\u0924 \u092a\u0941\u0928\u0930\u0940\u0915\u094d\u0937\u0923 \u0915\u0940 \u092a\u0924\u094d\u0930\u093e\u0935\u0932\u0940 \u092e\u0947\u0902\u0964 \u0905\u0935\u0930 \u0928\u094d\u092f\u093e\u092f\u093e\u0932\u092f \u092e\u0947\u0902 \u0926\u093f\u090f \u0917\u090f \u092c\u092f\u093e\u0928 \u0926\u093f\u0928\u093e\u0902\u0915\u093f\u0924-16/01/2018 \u0915\u093e\u0917\u091c \u0938\u0902\u0916\u094d\u092f\u093e 10 \u092e\u0947\u0902 \u0930\u0902\u091c\u0940\u0924 \u0938\u093f\u0902\u0939 \u0926\u094d\u0935\u093e\u0930\u093e \u0905\u092a\u0928\u0947 \u092c\u092f\u093e\u0928 \u092e\u0947\u0902 \u092e\u093e\u0924\u094d\u0930 \u092f\u0939 \u0915\u0939\u093e \u0917\u092f\u093e \u0939\u0948 \u0915\u093f \u092e\u0941\u091d\u0947 \u0907\u0938 \u0935\u094d\u092f\u093e\u092a\u093e\u0930 \u092e\u0947\u0902 \u0932\u0917\u092d\u0917 45 (\u092a\u0948\u0902\u0924\u093e\u0932\u093f\u0938) \u0935\u0930\u094d\u0937 \u0939\u094b \u091a\u0941\u0915\u0947 \u0939\u0948\u0902\u0964 \u0907\u0938\u0940 \u092a\u094d\u0930\u0915\u093e\u0930 \u0917\u0941\u0930\u092e\u0940\u0924 \u0938\u093f\u0902\u0939 \u0926\u094d\u0935\u093e\u0930\u093e \u092c\u092f\u093e\u0928 \u0915\u093e\u0917\u091c \u0938\u0902\u0916\u094d\u092f\u093e 15 \u092e\u0947\u0902 \u0915\u0939\u093e \u0917\u092f\u093e \u0939\u0948 \u0915\u093f \u092e\u0941\u091d\u0947 \u0935\u094d\u092f\u093e\u092a\u093e\u0930 \u092e\u0947\u0902 30 (\u0924\u0940\u0938) \u0935\u0930\u094d\u0937 \u0939\u094b \u091a\u0941\u0915\u0947 \u0939\u0948\u0902\u0964 \u092a\u0924\u094d\u0930\u093e\u0935\u0932\u0940 \u092a\u0930 \u0909\u092a\u0932\u092c\u094d\u0927 \u0915\u093e\u0917\u091c \u0938\u0902\u0916\u094d\u092f\u093e 43\u0917, 44\u0917 \u0924\u0925\u093e 45\u0917 \u0906\u0926\u093f \u0938\u0947 \u092e\u093e\u0924\u094d\u0930 \u0907\u0924\u0928\u093e \u0938\u094d\u092a\u0937\u094d\u091f \u0939\u094b \u0930\u0939\u093e \u0939\u0948 \u0915\u093f \u0917\u0941\u0930\u092e\u0940\u0924 \u0938\u093f\u0902\u0939 \u0938\u0928 1984 \u0915\u0947 \u0926\u0902\u0917\u094b \u092e\u0947\u0902 \u092a\u094d\u0930\u092d\u093e\u0935\u093f\u0924 \u0939\u094b\u0928\u0947 \u0915\u0947 \u0915\u093e\u0930\u0923 \u0915\u094d\u0937\u0924\u093f\u092a\u0942\u0930\u094d\u0924\u093f \u092a\u094d\u0930\u093e\u092a\u094d\u0924 \u0915\u0930\u0928\u0947 \u0915\u0947 \u0905\u0927\u093f\u0915\u093e\u0930\u0940 \u092a\u093e\u090f \u0917\u090f \u0925\u0947\u0964 \u0930\u0902\u091c\u0940\u0924 \u0938\u093f\u0902\u0939 \u0915\u093e \u0928\u093e\u092e \u0909\u0915\u094d\u0924 \u092a\u094d\u0930\u092a\u0924\u094d\u0930\u094b\u0902 \u092e\u0947\u0902 \u0915\u0939\u0940\u0902 \u0928\u0939\u0940\u0902 \u0939\u0948\u0964 \u0907\u0938 \u092a\u094d\u0930\u0915\u093e\u0930 5 \u091c\u0941\u0932\u093e\u0908 1976 \u0915\u0947 \u092a\u0942\u0930\u094d\u0935 \u092a\u0941\u0928\u0930\u0940\u0915\u094d\u0937\u0923\u0915\u0930\u094d\u0924\u093e\u0917\u0923 \u0915\u093e \u0915\u092c\u094d\u091c\u093e \u0938\u093e\u092c\u093f\u0924 \u0928\u0939\u0940\u0902 \u0939\u0948\u0964 \u0910\u0938\u0940 \u0938\u094d\u0925\u093f\u0924\u093f \u092e\u0947\u0902 \u0905\u0935\u0930 \u0928\u094d\u092f\u093e\u092f\u093e\u0932\u092f \u0926\u094d\u0935\u093e\u0930\u093e \u092a\u0941\u0928\u0930\u0940\u0915\u094d\u0937\u0923\u0915\u0930\u094d\u0924\u093e\u0917\u0923 \u0915\u094b \u0927\u093e\u0930\u093e 14 \u092f\u09420\u092a\u09400 \u090f\u0915\u094d\u091f \u0928\u0902\u092c\u0930 13 \u0938\u0928 72 \u0915\u093e \u0932\u093e\u092d \u092a\u094d\u0930\u0926\u093e\u0928 \u0928 \u0915\u0930 \u0915\u094b\u0908 \u0924\u094d\u0930\u0941\u091f\u093f \u0915\u093e\u0930\u093f\u0924 \u0928\u0939\u0940\u0902 \u0915\u0940 \u0917\u0908 \u0939\u0948\u0964\" 35. There is indeed nothing on record to indicate that the petitioners were in occupation of the shops in dispute before 05.07.1976, either as licensees or tenants, with the landlord's consent. The findings of the Revisional Court, as above recorded, are well borne out from the evidence and there is no reason for this Court to take a different view, in exercise of our jurisdiction under Article 226 of the Constitution. This Court must also remark that the RC & EO has very validly taken note of the fact that there is not a solitary rent receipt placed on record to show that the petitioners ever paid rent for the shops in dispute to the respondent-landlady. This Court also finds that there is no material to show that at any stage in point of time, the petitioners paid rent to whoever was the landlord for the time being. Until his death, it was Sardar Sundar Singh alone who was the lawful and recorded tenant of the shops in dispute. His heirs entitled to inherit having not come forward to claim it, the finding of a vacancy must logically follow. If the petitioners' occupation at some point of time after Sardar Sundar Singh fell ill is to be taken note of, where they claim to carrying of business separately in the two shops, the finding of deemed vacancy is inescapable, as the petitioners are not members of Sardar Sundar Singh's family. 36. The impugned orders passed by the RC & EO and the learned Additional District Judge are flawless, both in law and equity - equity this Court says because after all, the petitioners never contracted a tenancy of the shops in dispute with the landlady or an earlier landlord. They have tried to attempt a backdoor entry to claim their uncle's tenancy, to which they are not entitled under the law. They have never paid rent to the respondent-landlady or any earlier landlord, which decisively tips the scale of equity against the petitioners. 37. In the result, this petition fails and stands dismissed with costs. The RC & EO is free to enforce the impugned order of release dated 14.12.2018 passed in favour of respondent no. 3. 38. Let this order be communicated to the RC & EO/Additional City Magistrate-VII, Kanpur Nagar through the District Magistrate, Kanpur Nagar by the Registrar (Compliance). Order Date :- September the 29th, 2021 Anoop / I. 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{"id": "114254342", "text": "1 W.P.No.15591/2020 HIGH COURT OF MADHYA PRADESH BENCH AT INDORE Writ Petition No.15591/2020 Dharmendra Jatav Vs. State of M.P., and others --------------------------------------------------------------------------------------- Shri A.S.Garg, Sr. Advocate assisted by Shri Arpit Oswal, Advocate for the petitioner. Shri Ankit Premchandani, Panel Lawyer for the respondents No.1 to 4/State. Shri A.K.Sethi, Sr. Advocate assisted by Shri Manoj Manav, Advocate for the respondent No.5. --------------------------------------------------------------------------------------- WHETHER APPROVED FOR REPORTING;YES Law laid down: (1) The offending sale was made vide registered sale deed dated 01/03/1994. The lease was originally granted to Kishanlal in the year 1966-67 after coming into force of the Madhya Pradesh Land Revenue Code, 1959 (for short 'the Code') and after his death, the name of his heir Narayan Jatav was entered by way of succession vide entry No.40/93-94 on 30/12/1993. Bhumiswami right was recorded on 10/01/1994 in favour of Narayan Jatav the father of the present petitioner. The bar or prohibition as contained under sub-section 7(b) of section 165 of the Code is with reference to the date of transfer and not the date of grant of patta (2) Since the ownership of land covered under the Code vests in the State Government, the revenue authorities under the Code have exclusive jurisdiction in respect of matters enlisted in section 257 of the Code and cancellation or omitting the entry with due notice to the other side upon acquisition of knowledge of void transaction; in violation of section 165(7b) of the Code. (3) A transaction from its very inception being in violation of law is a nullity and, therefore, void ab initio. A declaration in that behalf is not required by a Court of law; whereas in contrast, a transaction which otherwise is good act in the eyes of law, unless; avoided is a voidable act, i.e., if a suit is filed for a declaration that a document is fraudulent and/or forged and fabricated and a party who alleges so is obliged to 2 W.P.No.15591/2020 prove it; seeking a declaration in that behalf in a Court of law. In other words, where legal effect of a document cannot be taken away without setting aside the same, it cannot be treated to be void but would obviously be voidable. (4) A void transaction is bad in law from its very inception. No declaration to that effect is required. Therefore, the question of limitation does not arise in that behalf. (5) Section 257(1)(f) of the Code cannot be construed providing for substitution of name in revenue record arising out of inter se competitive claims of two parties over a entry / claim viz., instead it applies to cancellation / omission of entry upon acquisition of knowledge of the offending sale in violation of section 165(7b) of the Code. (6) Section 111 of the Code provides jurisdiction of the civil Court to decide the dispute inter se between two parties relating to right of records, where the State Government is not a party. Correction of record due to void transaction is not competitive claim of two rival parties. (7) A landless person extended the benefit of grant of lease / patta by the State Government or the Collector loses his status as such, in the event he transfers the land in violation of section 165(7b) of the Code. Therefore, on the analogy of section 111(g)(2) of the Transfer of Property Act, such person becomes liable for initiation of action for determination of lease by forfeiture through notice by the lesser/State Government and the subject matter of sale of land is liable for restoration to the State Government with correction of entry and taking over the possession by due process of law. Writ petition stands disposed of Significant paragraphs: 8 to 16 Reserved on: 11/12/2020 ORDER (19/01/2021) Rohit Arya, J., The controversy involved in this writ petition under Article 226 / 227 of the Constitution of India revolves around the scope, limit and dimensions of the provision contained under section 165(7-b) of the Madhya Pradesh Land Revenue Code, 1959 (for short, 'the Code'). For ready reference the provision is quoted below: W.P.No.15591/2020 \"165. Rights of transfer.- (1) subject to the other provisions of this section and the provision of section 168 a bhumiswami may transfer any interest in his land. ... ... ... (7-b) Notwithstanding anything contained in sub-section (1), a person who holds land from the State Government or a person who holds land in bhumiswami rights under sub- section (3) of Section 158 or whom right to occupy land is granted by the State Government or the Collector as a Government lessee and who subsequently becomes bhumiswami of such land, shall not transfer such land without the permission of a Revenue Officer, not below the rank of a Collector, given for reasons to be recorded in writing.\" (Emphasis supplied) and collaterally section 158(3) of the Code. The relevant provision is quoted below: \"158. Bhumiswami. (1) Every person who at the time of coming into force of this Code, belongs to any of the following classes shall be called a bhumiswami and shall have all the rights and be subject to all the liabilities conferred or imposed upon a bhumiswami by or under this Code, namely ... ... ... (3) Every person- (i) who is holding land in bhumiswami right by virtue of a lease granted to him by the State Government or the Collector or the Allotment Officer on or before the commencement of the Madhya Pradesh Land Revenue Code (Amendment) Act, 1992 from the date of such commencement, and (ii) to whom land is allotted in bhumiswami right by the State Government or the Collector or the Allotment Officer after the commencement of the Madhya Pradesh Land Revenue Code (Amendment) Act, 1992 from the date of such allotment, shall be deemed to be a bhumiswami in respect of such land and shall be subject to all the rights and liabilities conferred and imposed upon a bhumiswami by or under this Code : Provided that no such person shall transfer such land within a period of ten years from the date of lease or allotment and thereafter may transfer such land with the permission obtained under sub-section (7-b) of section 165. Explanation.-In this section, the expression \"Ruler\" and \"Indian State\" shall have the same meanings as are assigned to these W.P.No.15591/2020 expressions in clauses (22) and (15) respectively by Article 366 of the Constitution of India.\" 2. Agricultural land falling in survey No.465/40 admeasuring 2.023 hectare village Khilchipur, tehsil Khilchipur, District Rajgarh was leased out / patta to late Kishanlal s/o Nathulal Jatav in the year 1966-67 (for short, 'agricultural land') by the State Government. After his demise, the name of his son Narayan Jatav was mutated in the revenue record vide entry No.40/93-94 dated 30/12/1993. The mutation record suggests that on 10/01/1994, bhumiswami rights were conferred upon him. Vide registered sale deed dated 01/03/1994; the agricultural land was transferred by Narayan Jatav in favour of Jai Prakash (respondent No.5). However, the statutory prior permission as contemplated under section 165(7-b) of the Code was not obtained from the Collector. Pursuant to the aforesaid sale, the name of respondent No.5 was recorded in the revenue record at sl.No.74 on 02/04/1994. The Collector, Rajgarh had issued an order on 13/01/2012 directing the competent revenue authorities to check and verify such transaction of transfer of agricultural lands without obtaining prior permission under section 165(7-b) of the Code. 3. Petitioner is heir / successor of Narayan Jatav. On 02/11/2012, he submitted a complaint before the Sub Divisional Officer that the mutation / entry dated 02/04/1994 in favour of respondent No.5 be cancelled as the sale deed dated 02/04/1994 was in violation of the provision contained under section 165(7-b) of the Code. Upon receipt of the complainant, the report of the Tehsildar was called. Thereafter, the Sub Divisional Officer after notice to respondent No.5 had passed an order on 07/08/2014 (Annexure P/3) cancelling the entry in revenue record at sl.No.74 dated 02/04/1994 for the reason that the sale of agricultural land vide registered sale deed dated 02/04/1994 since was without obtaining prior permission of the Collector as contemplated under section 165 (7-b) of the Code is null and void. Therefore, the W.P.No.15591/2020 consequential revenue entry is also liable to be cancelled. 4. The respondent No.5 preferred an appeal before the Collector under section 44 of the Code. The appeal was held to be not maintainable as the order passed by the respondent No.4 was not the original order vide order dated 24/12/2018 (Annexure P/2). The second appeal preferred by respondent No.5 before the Commissioner has been allowed vide order dated 09/09/2020 (Annexure P/1). The second appellate authority was of the view that the lease / patta was granted to late Kishanlal in the year 1966-67, therefore, the bar against transfer of land without permission of the revenue authority not below the rank of Collector incorporated by Act No.15 of 1980 shall have no application. This is the impugned order in this writ petition. 5. Shri A.S.Garg, learned senior counsel contends that the applicability of bar against transfer of land / agricultural land, the relevant date shall be the date of transfer and not the date of grant of patta / lease by Government to the lessee. The lease was granted in the year 1966-67 in favour of late Kishanlal and bhumiswami rights were conferred upon his heir Narayan Jatav on 30/12/1993. Therefore, the transfer of agricultural land in favour of respondent No.5 vide registered sale deed dated 01/03/1994 without obtaining prior permission from the Collector under section 165(7-b) of the Code is bad in law. Therefore, the second appellate authority has committed serious illegality by allowing the appeal. As such, the impugned order is not sustainable in the eyes of law. Further elaborating his submissions, learned senior counsel referring to sub-section (3) of section 158 of the Code contends that bhumiswami rights by virtue of lease / patta granted to Kishanlal in the year 1966-67 by State Government is covered under section 165(7-b) of the Code. Hence, the date of grant of patta / lease is irrelevant and has no bearing over the controversy since the sale deed dated 01/03/1994 is in contravention of mandatory provision contained under section 165(7-b) of the W.P.No.15591/2020 Code, the same was null and void. To bolster the submissions, he has relied upon two division Bench judgments passed by this Court in the cases of Mulayam Singh and others Vs. Budhawa Chamar and others, 2002(2) MPLJ 480 and Saroj Chand Vs. Premwati and others, Writ Appeal No.345/2020 decided on 11/052020 at Gwalior Bench. Learned senior counsel referring to the judgment of division Bench in the case of Budhuwa Chamar Vs. Board of Revenue, M.P., and others, 2002(1) MPLJ Note 2 contends that the transfer or alienation of leased land / patta by State Government even after acquisition bhumiswami rights shall be void in the absence of prior permission of the revenue authority or the Collector as provided for under section 165(7-b) of the Code. The same proposition was followed by another division Bench of this Court in the case of Savina Park Resorts and Tours Pvt., Ltd., Vs. State of M.P., and others, (2012) 2 MPLJ 363. Lastly, he submits that the claim for omission of entry made in favour of respondent No.5 in the revenue record was well within the jurisdiction of the Sub Divisional Officer and subject matter covered under clause (f) of sub-section (1) of section 257 of the Code; an exclusive jurisdiction of the revenue authority. With the aforesaid submissions, learned senior counsel prays that the impugned order deserves to be set aside. 6. Per contra, Shri A.K.Sethi, learned senior counsel for the respondent No.5 submits that the jurisdiction under Article 226 and 227 of the Constitution of India predominantly is an equitable jurisdiction. Therefore, a person seeking judicial intervention through this jurisdiction must come with clean hands. In the instant case, the petitioner is son of late Narayan Jatav. In the agreement to sell dated 30/12/1993 between Narayan Jatav and Jai Prakash (respondent No.5); the petitioner appeared and signed as a witness to the said agreement. Narayan Jatav being recorded bhumiswami of the agricultural land has executed a registered sale deed dated 01/03/1994 in favour of the respondent No.5 with clear stipulation thereunder that there was no bar for the said sale under section 165(7-b) of the Code. W.P.No.15591/2020 Based upon the aforesaid sale deed dated 01/03/1994, the land was recorded in the name of respondent No.5 by the revenue authorities as bhumiswami on 02/04/1994. Almost after 19 years on 02/11/2012, the petitioner has taken a somersault and complained against the sale seeking amendment in the revenue entry purportedly on the ground that the aforesaid sale deed executed by his father in favour of respondent No.5 was null and void for want of prior permission of the Collector as required under section 165(7-b) of the Code. Learned senior counsel further contends that the Sub Divisional Officer had no jurisdiction to amend or omit the entry recorded in favour of respondent No.5, otherwise than in an appeal against the entry. Hence, the order passed by the Sub Divisional Officer on 07/08/2014 was bad in law. The appeal preferred by petitioner could not have been dismissed by the Collector vide order dated 24/12/2018 as not maintainable purportedly on the ground that the impugned order is not the original order. According to the learned senior counsel, the Sub Divisional Officer had exercised the original jurisdiction while ordering to omit the entry. The appeal arising therefrom under section 44 of the Code ought to have been entertained by the Collector. That was not done. In the alternate, it is submitted that in any case, neither the complaint nor the appeal could have have been entertained by the Sub Divisional Officer after 19 years of the transaction to the grave prejudice of the respondent No.5 and that too at the instance of the petitioner who had full knowledge of the transaction. Moreso, there was no application for condonation of delay in view of section 47 of the Code providing period of limitation for preferring an appeal. Learned senior counsel also contends that the mutation / revenue entry recorded on 02/04/1994 in favour of respondent No.5 could not have been omitted, unless; the sale deed dated 01/03/1994 executed in favour of respondent No.5 was set aside by the Court of competent jurisdiction since by virtue of the registered sale deed, the rights transferred in favour of respondent No.5 are crystallized and protected under section 54 of the Transfer of Property Act. He submits that even otherwise, W.P.No.15591/2020 the dispute / claim in respect to the record of rights as raised by the petitioner could have been addressed only by the civil Court of competent jurisdiction as provided for under section 111 of the Code. To bolster his submissions relied upon the following judgments: (i) A bunch of writ appeal and writ petitions, lead case being The State of M.P., and another Vs. Chaitanya Realcon Pvt. Ltd., WA No.23/2017 decided on 22/04/2017; (ii) Full Bench judgment reported in 2010(45) MPLJ 178, Ranveer Singh Vs. State of M.P., 7. Heard. 8. The Madhya Pradesh Revenue Code is a social welfare legislation made for protection of ownership rights of landless persons, particularly; various classes of weaker section; a constitutional obligation under Article 39(b) and 46 of the Constitution of India. Economic empowerment of such class of persons in fact is a step to achieve economic democracy, as agricultural land gives economic status to the tiller. The prevention of their exploitation due to ignorance or indigency is a constitutional duty of the State under section 46 of the Constitution of India. Sub-section (7-b) of section 165 of the Code was inserted vide Act No.15 of 1980 which contemplates that a 'government lessee' who subsequently becomes bhumiswami of such land shall not transfer such land without the permission of a revenue officer not below the rank of Collector as quoted above. The said section is further amended vide amending Act No.17 of 1992 with effect from 28/10/1992 and a corresponding amendment is incorporated as section 158(3) quoted above. A joint reading of both the provisions do suggest that a 'bhumiswami' who holds the right by virtue of lease granted to him by the State Government or the Collector under section 158 of the Code shall not transfer the land so leased or allotted without prior permission of a revenue officer not below the rank of Collector. W.P.No.15591/2020 9. The primary question emerging from rival contentions advanced by learned senior counsels is to determine the character of sale dated 01/03/1994 in the eyes of law; void or voidable?. 10. The expressions \"void\" and \"voidable\" have been subject matter of consideration on innumerable occasions by Courts. Law is now well settled. A transaction from its very inception being in violation of law is a nullity and, therefore, void ab initio. As a matter of fact, a declaration in that behalf is not required by a Court of law; whereas in contrast, a transaction which otherwise is good act in the eyes of law, unless; avoided is a voidable act, i.e., if a suit is filed for a declaration that a document is fraudulent and/or forged and fabricated and a party who alleges so is obliged to prove it; seeking a declaration in that behalf in a Court of law. In other words, where legal effect of a document cannot be taken away without setting aside the same, it cannot be treated to be void but would obviously be voidable [Judgments of Hon'ble Supreme Court in the cases of Dhurandhar Prasad Singh Vs. Jai Prakash University and others, (2001) 6 SCC 534 relied upon. De Smith, Woolf and Jewell in their treatise Judicial Review of Administrative Action, fifth edition, paragraph 5-044, has summarised the concept of void and voidable as follows: \"Behind the simple dichotomy of void and voidable acts (invalid and valid until declared to be invalid) lurk terminological and conceptual problems of excruciating complexity. The problems arose from the premise that if an act, order or decision is ultra vires in the sense of outside jurisdiction, it was said to be invalid, or null and void. If it is intra vires it was, of course, valid. If it is flawed by an error perpetrated within the area of authority or jurisdiction, it was usually said to be voidable; that is, valid till set aside on appeal or in the past quashed by certiorari for error of law on the face of the record.\" W.P.No.15591/2020 In the instant case, the lease was originally granted to Kishanlal in the year 1966-67 after coming into force of the Code and after his death, the name of his heir Narayan Jatav was entered by way of succession vide entry No.40/93-94 on 30/12/1993. Bhumiswami right was recorded on 10/01/1994 in favour of Narayan Jatav the father of the present petitioner. The sale deed in favour of respondent No.5 was executed on 01/03/1994. In the considered opinion of this Court, the bar or prohibition as contained under sub-section 7(b) of section 165 of the Code is with reference to the date of transfer and not the date of grant of patta. The contention advanced to the contrary and as concluded by the Commissioner in the impugned order dated 09/09/2020 (Annexure P/1) is misconceived and misdirected. Hence, rejected. Therefore, the offending sale deed dated 01/03/1994 without prior permission of the Collector was void ab initio. The sale deed dated 01/03/1994 since has been held to be void for which no declaration in that behalf is required from a Court of law, the question of limitation as raised by learned senor counsel for the respondent No.5 is of no consequence and pales into insignificance. Hence, rejected. In the judgment reported in 2002(2) MPLJ 480 Mulayam Singh and another Vs. Budhawa Chamar and others; a division Bench in an authoritative pronouncement of law has ruled as under: \"It is not in dispute that no permission from the Collector was obtained and the sale was made without the permission of Collector. The respondent cannot transfer his land even though he is declared Bhumiswami, without the permission of the Collector. Transfer was made without such permission, so the appellants will not get any legal rights. In the circumstances, the Additional Collector has rightly held that the sale was in contravention of the provisions of section 165(7-B) of the Code and is void. Mutation effected on the basis of sale was set aside and the land was directed to be recorded in the name of the respondent No.1.\" The view of this Court in the matter of alienation of land without permission under section 165(7b) of the Code finds W.P.No.15591/2020 support from the judgment of the Hon'ble Supreme Court in the case of Keshabo and another Vs. State of M.P., and others, (1996) 7 SCC 765 and a division Bench of this Court in the case of Mulayam Singh and another (supra). At this stage it is appropriate to reiterate the legal connotation of word \"bhumiswami\" as perceived by a Full Bench of this Court in the case of Ramgopal Kanhaiyalal Vs. Chetu Batte AIR 1976 MP 160 and held as under: \"14. It must be remembered that a Bhumiswami has a title though he is not the \"Swami\" of the \"Bhumi\" which he holds, in the sense of absolute ownership of land vests in the State Government, yet, he is a Bhumiswami. He is not a mere lessee. His rights are higher and superior. They are akin to those of a proprietor in the sense that they are transferable and heritable, and he cannot be deprived of his possession, except by due process of law and under statutory provisions, and his rights cannot be curtailed except by legislation.\" as affirmed by Hon'ble Supreme Court in (2000) 3 SCC 668 Rohini Prasad and others Vs. Kasturchand and another & (2005) 10 SCC 124 Hukum Singh (Dead) by LR., and others Vs. State of M.P., as well as by a division Bench of this Court reported in 2012(2) MPLJ 363 Savina Park Resorts and Tours Pvt. Limited Vs. State of M.P., and others. Since, the ownership of land covered under the Code vests in the State Government. The revenue authorities under the Code have exclusive jurisdiction in respect of matters enlisted in section 257 of the Code and the jurisdiction of the civil Court is ousted in that behalf. The cancellation of an entry in the revenue record on a complaint or otherwise in relation to transfer of land without permission of the Collector under sub-section 7(b) of section 165 of the Code cannot be construed substitution of name in revenue record arising out of inter se competitive claims of two parties over a entry / claim. This exercise, therefore, has rightly been carried out by a revenue officer under section 257(1)(f) of the Code. Section 111 of the Code provides jurisdiction of the civil W.P.No.15591/2020 Court to decide a dispute inter se between two private parties relating to any right recorded in the record of rights, where the State government is not a party. This provision has no application in the facts and circumstances of the case. The Sub Divisional Officer on a complaint by the petitioner has cancelled / omitted the entry No.74 dated 02/04/1994 recorded in favour of respondent No.5 by order dated 07/08/2014 (Annexure P/3) on the premise that the sale in favour of respondent No.5 vide sale deed dated 01/03/1994 was contrary to section 165(7-b) of the Code and also bearing in mind the general directions issued by the Collector on 13/01/2012. The contention of learned senior counsel for the respondent No.5 is that unless; appeal was preferred against the entry made in revenue record on 02/04/1994 (supra), the Sub Divisional Officer had no jurisdiction to cancel or omit the entry vide order dated 07/08/2014 is held to be misconceived for the reason that the Sub Divisional Officer upon acquisition of knowledge of void transaction,viz., sale deed dated 01/03/1994 has cancelled / omitted the entry with due notice to the respondent No.5. Records of rights can always can be corrected if prohibited in law or polluted by a void act in the eyes of law. Consequently, there was no illegality in the order of the Sub Divisional Officer dated 07/08/2014 (Anneuxre P/3) amending / omitting the entry at sl.No.74 on 02/04/1994 made pursuant to the sale deed dated 01/03/1994 in favour of respondent No.5 while exercising the power under section 257(1)(f) of the Code. 11. Now the following two questions arise for consideration: (i) Whether on the facts and in the circumstances of the case, the name of petitioner should be continued in the revenue record?; and (ii) Whether, he is entitled for restoration of possession of the land in question? 12. The demeanour and conduct of the petitioner is relevant to answer these questions. The petitioner is a witness to the agreement to sell dated 30/12/1993 between Narayan Jatav and Jai Prakash (respondent No.5). The sale deed executed on W.P.No.15591/2020 01/03/1994 by Narayan Jatav in favour of respondent No.5 was well within the knowledge of the petitioner. Thereafter, in the year 2012, a complaint was made by the petitioner with an ulterior motive to achieve the collateral purpose for his own benefit. Nevertheless, the cacellation or omission of entry in favour of respondent No.5 based on void sale deed dated 01/03/1994 by the Sub Divisional Officer shall not enure benefit to the petitioner. 13. Though the provisions of Transfer of Property Act (for short, 'the T.P.Act\") under Chapter V are not applicable in absence of notification by the State Government in the official gazette to the contrary as provided under section 117 of the T.P. Act, however, principles underlying provisions of T.P. Act have been made applicable for agricultural leases on touchstone of justice, equity and good conscience. In particular, the provision as to the 'forfeiture' contained under section 111(g)(2) of T.P.Act has been so applied by various High Courts. The Madras High Court in the case of Umar Pulavar Vs. Dawood Rowther, AIR 1947 Mad. 68 has held as under: \"It is for the purpose of attenuating the rigour of the law as thus interpreted and applied in such decisions that Section 111(g) was amended in 1929 and it was made clear that even in the case of forfeiture by denial of the landlord's title a notice in writing determining the lease must be given. The principle so embodied in the section as a result of this amendment becomes, so to say, a principal of justice, equity and good conscience which must be held to govern even agricultural leases, though under Section 117 of the Act they are exempt from the operation of the chapter. To hold that with reference to agricultural leases previous notice determining the tenancy is not necessary is to ignore the policy of the Act as disclosed by the amendment which was intended to afford all tenants greater protection than what was afforded by the decisions which interpreted Section 111(g) as it originally stood. It is reasonably clear that if notice is necessary with reference to non-agricultural leases it is still more necessary in the case of agricultural leases where larger interests are at stake, generally speaking, and where in the absence of a proper notice to quit the right to the standing crops raised by the tenants might itself become a subject of dispute as between them and the landlord.\" Relied upon by Bombay High Court in the case of Tatya W.P.No.15591/2020 Savla And Ors. vs Yeshwant Kondiba And Ors., AIR 1951 Bom. 283 & Andhra Pradesh High Court in the case of Cheekati Kuriminaidu & Ors vs. Karri Padmanabham Bhukta and othrs, AIR 1964 And. Pra. 539. 14. A lease / patta was granted to late Kishanlal in the year 1966-67 for providing means of livelihood; a landless person for his economic empowerment through ploughing and cultivating the field. To ensure protection against exploitation due to ignorance or indigency, section 165(7-b) was inserted in the year 1980 with further amendment vide amending Act No.17 of 1992 with effect from 28/10/1992. Therefore, conscious transfer of land on 01/03/1994 by Narayan Jatav in favour of respondent No.5 to which petitioner is also party (witness for agreement to sell dated 30/12/1993) setting up title in a third person in violation of section 165(7-b) of the Code; renders the lease liable for determination by forfeiture, in view of sub-clause (2) of clause (g) of section 111 of the T.P.Act. For ready reference the said clause is quoted below: 111. Determination of lease. A lease of immovable property determines.- ... ... ... (g) by forfeiture:- ... ... ... (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; 15. In the obtaining facts and circumstances, the petitioner has lost the status of landless person. The technical objection / contention of the learned senior counsel for the petitioner is that the lis between the parties does not embrace such eventuality and after setting aside the impugned order, the consequences flowing therefrom shall enure benefit to the petitioner. The argument advanced is in despair and devoid of substance. The conduct and demeanour of the petitioner & obtaining facts and circumstances do attract the maxim; \"Nullus commodum capere ptest de injuria sua propria\" (No man can take advantage of his own wrong), it is one of the salient tenets of equity. Hence, the petitioner is not held entitled to secure the assistance of the Court of law for enjoying the fruit of his own W.P.No.15591/2020 wrong. The Hon'ble Supreme Court in the case of Ashok Kapil Vs. Sana Ullah (Dead) and others, (1996) 6 SCC 342 held in paragraphs 7 and 12 as under: \"7. If the crucial date is the date of allotment order, the structure was not a building as defined in the Act. But can the respondent be assisted by a court of law to take advantage of the mischief committed by him? The maxim \"\"Nullus commodum capere ptest de injuria sua propria\" (No man can take advantage of his own wrong) is one of the salient tenets of equity. Hence, in the normal course, the respondent cannot secure the assistance of a court of law for enjoying the fruit of his own wrong. 12. The upshot is, if the District Magistrate has commenced exercising jurisdiction under Section 16 of the U.P.Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, in respect of a building which answered the description given in the definition in Section 3(i), he would well be within his jurisdiction to proceed further notwithstanding the intervening development that the building became roofless. We are inclined to afford such a liberal interpretation to prevent a wrongdoer from taking advantage of his own wrong.\" The Hon'ble Supreme Court in the case of Eureka Forbes Limited Vs. Allahabad Bank and others, (2010) 6 SCC 193 has observed as under: \"66. The maxim \"Nullus commodum capere ptest de injuria sua propria\" has a clear mandate of law that, a person who by manipulation of a process frustrates the legal right of others, should not be permitted to take advantage of his wrong or manipulations. In the present case, Respondents 2 and 3 and the appellant have acted together while disposing off the hypothecated goods, and now, they cannot be permitted to turn back to argue, that since the goods have been sold, liability cannot be fastened upon Respondents 2 and 3 and in any case on the appellant. .....\" Therefore, in exercise of the equitable jurisdiction under Article 226 of the Constitution of India and regard being had to the concept of justice, equity and good conscience, it is considered apposite to direct the respondent / State to issue notice to the petitioner as against termination of lease drawing analogy under sub-clause (2) of clause (g) of section 111 of the T.P.Act. For restoration of possession, the State is also directed to initiate the W.P.No.15591/2020 action against respondent No.5 by due process of law. Let the entire exercise be completed within a period of six months from today. 16. Resultantly, the order passed by the Commissioner dated 09/09/2020 (Annexure P/1) is set aside. Writ petition stands allowed in part with the aforesaid directions. No order as to cost. (Rohit Arya) Judge 19-01-2021 Sh SEHAR HASEEN Digitally signed by SEHAR HASEEN DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH INDORE, ou=HIGH COURT OF MADHYA PRADESH BENCH INDORE, postalCode=452001, st=Madhya Pradesh, 2.5.4.20=900ec6fc757798eaeb3df7a32860bd3298415a4d1c2 d91436213f2568c8f27da, serialNumber=e7dbba955b262c04b8413251ce7fb6f0b7dba6 10c57f1559c08bf6c6f5dd40d4, cn=SEHAR HASEEN Date: 2021.01.19 18:34:34 +05'30'", "spans": [{"start": 2, "end": 19, "label": "CASENO"}, {"start": 65, "end": 92, "label": "CASENO"}, {"start": 93, "end": 109, "label": "APP"}, {"start": 233, "end": 241, "label": "A.COUNSEL"}, {"start": 273, "end": 284, "label": "A.COUNSEL"}, {"start": 320, "end": 338, "label": "R.COUNSEL"}, {"start": 395, "end": 404, "label": "R.COUNSEL"}, {"start": 436, "end": 447, "label": "R.COUNSEL"}, {"start": 685, "end": 695, "label": "DATE"}, {"start": 794, "end": 832, "label": "PREC"}, {"start": 971, "end": 981, "label": "DATE"}, {"start": 1016, "end": 1026, "label": "DATE"}, 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{"id": "13024806", "text": "1 REPORTABLE IN THE SUPREME COURT OF INDIA (CRIMINAL APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 329 OF 2021 [@ SPECIAL LEAVE PETITION (CRL.) NO. 2531 OF 2021] (ARISING OUT OF S.L.P. (CRL.) DIARY NO. 20318 OF 2020) APARNA BHAT & ORS. \u2026APPELLANT (S) VERSUS STATE OF MADHYA PRADESH & ANR. \u2026.RESPONDENT(S) JUDGEMENT S. RAVINDRA BHAT, J. A woman cannot be herself in the society of the present day, which is an exclusively masculine society, with laws framed by men and with a judicial system that judges feminine conduct from a masculine point of view.\u201d \u2013 Henrik Ibsen 1. Leave granted. The appellants are public-spirited individuals, concerned about the adverse precedent set by the imposition of certain bail conditions in a case involving a sexual offence against a woman; they impugn a part of the judgment of the Madhya Pradesh High Court1 that imposed these bail conditions. With the consent Signature Not Verified Digitally signed by of counsel for the parties, the appeal was heard finally. The appellants also filed an DEEPAK SINGH Date: 2021.03.18 16:24:26 IST Reason: 1 In Vikram v. The State of Madhya Pradeshin MCRC 23350/ 2020, dated 30.7.2020 application2, seeking directions that all the High Courts and trial Courts be directed to refrain from making observations and imposing conditions in rape and sexual assault cases, at any stage of judicial proceedings, that trivialize the trauma undergone by survivors and adversely affect their dignity. Certain intervenors also preferred an application in support of the appeal, seeking clear directions to all Courts to refrain from imposing \u201cirrelevant, freaky or illegal bail conditions\u201d. 2. Ibsen, the prescient nineteenth century author, made a powerful statement (quoted as the epigram at the beginning of this judgment); sadly, even today, in the twenty first century, after 70 years as a republic with the goal of equality for all, many courts seem to be oblivious of the problem. In a sense, this judgment is not as much about only the merits of the impugned conditions of the bail order, but is meant to address a wider canvas of (what appears to be) entrenched paternalistic and misogynistic attitudes that are regrettably reflected at times in judicial orders and judgments. 3. The brief facts of the case are that on 20.04.2020 at about 2.30 a.m., the accused-applicant, a neighbour of the complainant, entered her house and caught hold of the complainant\u2019s hand, and allegedly attempted to harass her sexually. Accordingly, Crime No. 133/2020 was registered at Police Station, Bhatpachlana, District-Ujjain for the offences punishable under sections 452, 354A3, 323 and 506 of the Indian Penal Code (IPC). The case was investigated and a charge sheet was filed. The accused filed an application under Section 438 of Code of Criminal Procedure, 1973 (hereafter \u201cCrPC\u201d) seeking pre-arrest bail. The High Court, by the impugned 2Crl. M.P No. 102226/2020 3Section 354A reads as follows: \u201c354A. Sexual harassment and punishment for sexual harassment.\u2014 (1) A man committing any of the following acts\u2014 (i) physical contact and advances involving unwelcome and explicit sexual overtures; or (ii) a demand or request for sexual favours; or (iii) showing pornography against the will of a woman; or (iv) making sexually coloured remarks, shall be guilty of the offence of sexual harassment. (2) Any man who commits the offence specified in clause (i) or clause (ii) or clause (iii) of sub-section (1) shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both. (3) Any man who commits the offence specified in clause (iv) of sub-section (1) shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.\u201d order, even while granting bail to the applicant imposed the following condition which is under challenge in this petition. (i) \u201cThe applicant along with his wife shall visit the house of the complainant with Rakhi thread/ band on 3rd August, 2020 at 11:00 a.m. with a box of sweets and request the complainant -Sarda Bai to tie the Rakhi band to him with the promise to protect her to the best of his ability for all times to come. He shall also tender Rs. 11,000/- to the complainant as a customary ritual usually offered by the brothers to sisters on such occasion and shall also seek her blessings. The applicant shall also tender Rs. 5,000/- to the son of the complainant \u2013 Vishal for purchase of clothes and sweets. The applicant shall obtain photographs and receipts of payment made to the complainant and her son, and the same shall be filed through the counsel for placing the same on record of this case before this Registry. The aforesaid deposit of amount shall not influence the pending trial, but is only for enlargement of the applicant on bail.\u201d 4. The appellants submit that the expressions \u201cin the interest of justice\u201d, \u201csuch other conditions court considers necessary\u201d and \u201cas it may think fit\u201d as provided in the bare text of the Section 437(3)(c) as well as Section 438(2)(iv) of the CrPC, give discretion to the Courts to impose such other conditions as may be required in the facts of a particular case, but those conditions have to be in consonance with the other conditions in the provisions, the purpose of granting bail and no other consideration. 5. The appellants cite Kunal Kumar Tiwari v. State of Bihar4 and Sumit Mehta v. State (NCT of Delhi)5 and argue that this court\u2019s observations in those decisions must be followed by every court while considering and dealing with bail applications. They also rely on the observations made in para 18 of State of M.P v. Madanlal,6 and urge that in cases of sexual offences, the idea of compromise, especially in the form of marriage between the accused and the prosecutrix is abhorrent, and should not be considered a judicial remedy, as it would be antithetical to the woman\u2019s honour and dignity. Likewise, reliance was placed on Ramphal v. State of Haryana7, where the 4 (2018) 16 SCC 74 5 (2013) 15 SCC 570 6 (2015) 7 SCC 681 7Crl. A. No. 438/2011decided on 27.11.2019 court took note of the compromise between the survivor and accused, but found that such compromise is of no relevance when deciding on cases of rape and sexual assault. 6. The appellants brought to the notice of this Court, various decisions and orders where the observations made by the judges in offences against women including cases under the Protection of Children from Sexual Offences Act, 2012 (POCSO) were extraneous. The appellants submitted that the courts, in many cases, especially under the POCSO Act, granted bail on the plea that an agreement to marry had been reached between the accused and prosecutrix. Additionally, they also submitted that while adjudicating matters of sexual harassment and rape, judges have made shocking remarks on the character of the prosecutrix. 7. Reference is made to Ravi Jatav v. State of M.P8, where the High Court of Madhya Pradesh, while granting bail (to an accused of committing offences under Sections 376-D, 366, 506, 34 IPC) imposed conditions that the accused \u201cshall register himself as a Covid-19 Warrior\u201d and was to be assigned work of Covid-19 disaster management at the discretion of the District Magistrate. In Rakesh B. v. State of Karnataka9, the Karnataka High Court granted bail to an accused alleged to have committed offences under Sections 376, 420, 506 IPC and Section 66-B of the Information Technology Act, 2000 (\u201cIT Act\u201d), and made remarks on the survivor\u2019s conduct. The relevant extract is produced below: \u201cc) nothing is mentioned by the complainant as to why she went to her office at night, that is, at 11 PM; she has also not objected to consuming drinks with the petitioner and allowing him to stay with her till morning; the explanation offered by the complainant that after the perpetration of the act she was tired and fell asleep, is unbecoming of an Indian woman; that is not the way our women react when they are ravished;\u201d 8. The appellants submit that no observation/condition should be made in any judgment, or orders which reflects bias of the judge or affects the dignity of a woman 8 MCRC No. 13734/2020 order dated 19.05.2020 passed by Madhya Pradesh High Court. 9Crl. P. No. 2427/2020, order dated 22.06.2020 passed by High Court of Karnataka. or affects the conduct of the trial in a fair and unbiased manner. They highlight that the impugned order, while granting bail, imposed a condition that the applicant shall visit the house of the complainant. The appellants submit that this is unacceptable and no observation/condition should be made which permits the accused to meet/have access to the survivor and her family members. 9. The appellants also cite Mohan v. State10, where the Madras High Court had referred the case of rape of a minor to mediation and observed that the case was fit for attempting a compromise between the parties. Likewise, Samuvel v. Inspector of Police11is cited, where the High Court of Madras referred to mediation, a case of rape where the prosecutrix was a minor and had become a mother of a child as a consequence of rape, because the accused agreed to marry her. It is urged that no observation/condition should be made which initiates or encourages compromise that disparages and downgrades an otherwise heinous crime thus indicating that such offences are remediable by way of a compromise/ by marriage. 10. Sopikul Sk. @ Safikul Islam v. State,12 an order of the High Court of Calcutta in a POCSO case granting bail is cited; here, relief was given to the accused since the prosecutrix had attained majority and the accused intended to marry her. Further, in the case of Gyanaranjan Behera v. State of Odisha,13 the Orissa High Court in a POCSO case granted interim bail to the accused for the purpose of marrying the prosecutrix. In Suraj Kushwah v. State of M.P,14the Madhya Pradesh High Court granted temporary bail to the accused for a crime under sections 376 (2)(n), 506 IPC read with Sections 3(1) (W-II), 3(2)(V), 3(2)(v-a) of the SC/ST (Prevention of Atrocities) Act, 1989 for the purpose of solemnizing marriage with the prosecutrix. The appellants submit that in POCSO and rape cases, no observation/condition 10 M.P No. 2/2014 in Crl. A No. 402/2014 order dated 18.06.2015 11Crl. O.P. No. 1881/2015. 12 CRM No. 2961/2020 Order dated 16.04.2020 of the Calcutta High Court 13 BLAPL No. 2596/2020 Order dated 02.06.2020, passed by Orissa High Court. 14 CRA No. 3353/2020 Order dated 02.09.2020 passed by the Madhya Pradesh High Court should be made, which takes note of the fact that the survivor has attained majority and that the accused has offered to marry her. 11. Vikas Garg v. State of Haryana15, by the High Court of Punjab is cited, where the court granted bail to three persons accused of committing offences under Sections 376D, 376(2)(n), 376, 292, 120-B, 506 IPC and Section 67 of the IT Act, and made observations regarding the prosecutrix\u2019s \u201ccasual relationships\u201d,\u201cpromiscuous attitude\u201d, \u201cvoyeuristic mind\u201d, etc. The appellants submit that no observation/condition should be made which grants bail on the ground that the victim is of \u201cloose character\u201d or is \u201chabituated to sexual intercourse.\u201d 12. Counsel for the Intervenors submitted that under sections 437(2) and 438, the power to impose conditions have been expressed in very wide terms by using the phrase \u201cany condition.\u201d Recently, High Courts while granting bail under these sections have started imposing irrelevant conditions. The Intervenors have annexed around twenty-three orders in which such conditions for bail were imposed. They argue that the conditions that can be imposed under the law are clearly laid down by the Supreme Court in the case of Munish Bhasin v. State16 and reiterated in Parvez Noordin Lokhandwalla v. State of Maharashtra.17 Accordingly, it is clear that imposing conditions like rendering community service in COVID hospitals or in any other institution, plantation of trees, contributing to any particular charity relief fund, etc. is impermissible in law. The Intervenors further submit that the accused, during pendency of the trial are presumed innocent and their guilt is as yet to be adjudicated by the Court. Imposition of conditions like compulsive community service, etc. is violative of the right to equality and personal liberty, including procedure established by law in the Indian Constitution. 13. The Intervenors also submit that the Court while deciding a bail application, cannot assume the role of a social reformer or fund raiser for charities and impose 15Cr. M. No. 23962/2017, order dated 13.09.2017 passed by the Punjab and Haryana High Court 16(2009) 4 SCC 45 17(2020) 10 SCC 77 conditions which have no nexus with the offense or relevance with the object of the bail provisions. 14. It was submitted that in IA No. 102226/2020, the appellants have brought to the notice of this Court, several other instances in which similar directions have been made by High Courts and Trial Courts across the country. Such wide prevalence necessitates the urgent intervention of this Court to firstly, declare that such remarks are unacceptable and have the potential to cause grave harm to the prosecutrix and the society at large, secondly, reiterate that judicial orders have to conform to certain judicial standards, and thirdly, take necessary steps to ensure that this does not happen in the future. 15. It was further submitted that this Court should intervene and issue directions or guidelines on bail and anticipatory bail to ensure that courts impose only those conditions as are permissible in law. Further, this Court was urged to issue directions on gender sensitization of the bar and the bench, particularly with regard to judicial empathy for the prosecutrix. 16. The learned Attorney General, who had been issued notice in this matter, made his submissions in support of the appeal; he also filed a detailed note suggesting the steps that should be taken to sensitize all stakeholders, especially courts, while dealing with offences against women. Highlighting the observations made in Kunal Kumar (supra), Sumit Mehta (supra), State of Punjab v. Gurmit Singh18 and Sakshi v. State19, the learned Attorney General submitted that while relying upon the observations made in the above-mentioned cases, the court may highlight that in cases of crimes against women, the following additional considerations may be kept in mind: i. Bail conditions should not mandate or even permit contact between the accused and the victim. 18 (1996) 2 SCC 384 19 (2004) 5 SCC 518 ii. Bail conditions must seek to protect the complainant from any harassment by the accused. iii. Where considered necessary, the complainant/prosecutrix may be heard on whether there is any peculiar circumstance which may require additional conditions for her protection. iv. Wherever bail is granted, the complainant may immediately be informed that the accused has been granted bail. v. Bail conditions must be free from stereotypical or patriarchal notions on women and their place in society, and must strictly be in accordance with the requirements of the CrPC. vi. The Courts while adjudicating a case, should not suggest or entertain any notions (or encourage any step) towards compromises between the prosecutrix and the accused to get married, as it is beyond their powers and jurisdiction. 17. On gender equality and gender sensitization, the Attorney General argued that to achieve the goal of gender justice, it is imperative that judicial officers, judges, and members of the bar are made aware of gender prejudices that hinder justice. Accordingly, he submitted that the foremost aspect to facilitate a gender sensitive approach, is to train judges to exercise their discretion and avoid the use of gender- based stereotypes while deciding cases pertaining to sexual offences. Secondly, judges should have sensitivity to the concerns of the survivor of sexual offences. 18. Reliance was placed on the Bangkok General Guidance for Judges on Applying a Gender Perspective in South East Asia, by the International Commission of Jurists. It was pointed out that the following stereotypes are often encountered in the course of judicial decision-making and should be avoided: - i. Women are physically weak; ii. Women cannot make decisions on their own; iii. Men are the head of the household and must make all the decisions related to family; iv. Women should be submissive and obedient; v. Good women are sexually chaste; vi. Every woman wants to be a mother; vii. Women should be the ones in charge of their children; viii. Being alone at night or wearing certain clothes make women responsible for being attacked; ix. Women are emotional and often overreact or dramatize hence it is necessary to corroborate their testimony; x. Testimonial evidence provided by women who are sexually active may be suspected when assessing \u201cconsent\u201d in sexual offence cases; and xi. Lack of evidence of physical harm in sexual offense case means consent was given. 19. The Attorney General submitted that training for gender sensitization for judges at all levels of the judiciary should mandatorily be conducted at regular intervals by the National Judicial Academy and State Judicial Academies. He emphasized that any directions towards gender sensitization should include judges of all levels of the judiciary. Further, the counsel urged that courses on gender sensitization should be included in the curriculum of law schools, and the All-India Bar Exam should include questions on gender sensitization as well. In addition to this, he recommended that a detailed curriculum may be prepared with the help of subject matter experts by each High Court, to be a part of the syllabus for the Judicial Services Exams and training for inducted judges. Nature of the beast20: the problem 20. Women often experience obstacles in gaining access to mechanisms of redress, including legal aid, counselling services and shelters. They are re-victimized and exposed to further risk of violence through the denial of redress in the context of informal trials or negotiations between families and community leaders. The payment of financial compensation by the perpetrator or his family for acts of violence against women, in lieu of legal remedies, was a recurrent concern vis-\u00e0-vis the formal and informal justice systems. Violence against women in India is systematic and occurs in 20 A phrase that means the traits inherent to a thing or situation, especially a negative or difficult one (See https://idioms.thefreedictionary.com/the+nature+of+the+beast) the public and private spheres. It is underpinned by the persistence of patriarchal social norms and inter- and intra-gender hierarchies. Women are discriminated against and subordinated not only on the basis of sex, but on other grounds too, such as caste, class, ability, sexual orientation, tradition and other realities.21 21. Gender violence is most often unseen and is shrouded in a culture of silence. The causes and factors of violence against women include entrenched unequal power equations between men and women that foster violence and its acceptability, aggravated by cultural and social norms, economic dependence, poverty and alcohol consumption, etc. In India, the culprits are often known to the woman; the social and economic \"costs\" of reporting such crimes are high. General economic dependence on family and fear of social ostracization act as significant disincentives for women to report any kind of sexual violence, abuse or abhorrent behaviour. Therefore, the actual incidence of violence against women in India is probably much higher than the data suggests, and women may continue to face hostility and have to remain in environments where they are subject to violence. This silence needs to be broken. In doing so, men, perhaps more than women have a duty and role to play in averting and combating violence against women. 22. Unlike many other victims of interpersonal crimes such as theft, robbery or muggings, survivors of sexual assault are vulnerable to being blamed for their attack, and thus victim-blaming (overtly or in more subtle forms) in sexual assault cases has been the focus of several writings. Myths and stereotypes \u201cunderlie and fuel sexual violence against women and inform negative societal reactions\u201d.22 Joanne Conaghan points out pertinently that \u201cremoving the doctrinal debris of a legally instituted gendered hierarchical order does not necessarily get rid of deeply ingrained social 21Report of the Special Rapporteur on Violence against Women, its Causes and Consequences, on her Mission to India (22 April to 1 May, 2013) A/HRC/26/38/Add.1 (accessible at www.ohchr.org \u203a Documents \u203a A-HRC-26-38-Add1_en) 22 Shannon Sampert, \"Let Me Tell You a Story: English-Canadian Newspapers and Sexual Assault Myths\" (2010) 22:2 Canadian Journal of Women and the Law 301 at 304; also Janice Du Mont, and Deborah Parmis; \"Judging Women: The Pernicious Effects of Rape Mythology\u201d (1999) 19:1-2 Canadian Woman Studies 102 at 102 and cultural attitudes which law has long endorsed and which continue to infuse the criminal justice process, albeit in more covert, less accessible forms.\u201d23 23. Sexual violence is varied in degree. At the highest (or, rather most aggravated) level, is rape with or without attendant violence. However, there are a substantial number of incidents which fall within the rubric of sexual violence, that amount to offences under various penal enactments. These outlaw behaviours such as stalking, eve-teasing, shades of verbal and physical assault, and harassment. Social attitudes typically characterize this latter category of crimes as \u201cminor\u201d offences. Such \u201cminor\u201d crimes are, regrettably not only trivialised or normalized, rather they are even romanticized and therefore, invigorated in popular lore such as cinema. These attitudes \u2013 which indulgently view the crime through prisms such as \u201cboys will be boys\u201d and condone them, nevertheless have a lasting and pernicious effect on the survivors. 24. The United Nations Organisation has defined \u201cviolence against women\u201d as \u201cany act of gender based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life.\u201d24 The effect of offensive behaviour against women, which laws criminalize- 23 Joanne Conaghan, Law and Gender (Oxford: Oxford University Press, 2013) at 113 24The Declaration on the Elimination of Violence Against Women (also \u2018DEVAW). Articles 1 and 2 read as follows: \u201cArticle One: For the purposes of this Declaration, the term \u201cviolence against women\u201d means any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life. Article Two: Violence against women shall be understood to encompass, but not be limited to, the following: (a) Physical, sexual and psychological violence occurring in the family, including battering, sexual abuse of female children in the household, dowry-related violence, marital rape, female genital mutilation and other traditional practices harmful to women, non-spousal violence and violence related to exploitation; (b) Physical, sexual and psychological violence occurring within the general community, including rape, sexual abuse, sexual harassment and intimidation at work, in educational institutions and elsewhere, trafficking in women and forced prostitution; (c) Physical, sexual and psychological violence perpetrated or condoned by the State, wherever it occurs.\u201d physical, verbal, or other acts which threaten or give them acute discomfort, undermining their dignity, self-worth and respect, is to silence or subdue the survivor. 25. In The Standard of Social Justice as a Research Process 25 two scholars of psychology made a strong indictment of the (contextually, Canadian) criminal justice process: \u201cThe more general indictment of the current criminal justice process is that the law and legal doctrines concerning sexual assault have acted as the principle [sic] systemic mechanisms for invalidating the experiences of women and children. Given this state of affairs, the traditional view of the legal system as neutral, objective and gender- blind is not defensible. Since the system is ineffective in protecting the rights of women and children, it is necessary to re-examine the existing doctrines which reflect the cultural and social limitations that have preserved dominant male interests at the expense of women and children.\u201d Previous rulings 26. In Kunal Kumar Tiwari v. State of Bihar (supra), this court while dealing with Section 437(3)(c), Cr. PC (general conditions of bail) observed as follows: \u201c9. There is no dispute that Sub-clause (c) of Section 437(3) allows Courts to impose such conditions in the interest of justice. We are aware that palpably such wordings are capable of accepting broader meaning. But such conditions cannot be arbitrary, fanciful or extend beyond the ends of the provision. The phrase 'interest of justice' as used under the Sub-clause (c) of Section 437(3) means \"good administration of justice\" or \"advancing the trial process\" and inclusion of broader meaning should be shunned because of purposive interpretation.\u201d 27. In Sumit Mehta v. State (NCT of Delhi) (supra) this court, with respect to the conditions that can be imposed validly under section 438(2) of the CrPC, observed that: \u201c11. While exercising power under Section 438 of the Code, the Court is duty bound to strike a balance between the individual's right to 25(1997), 38 Can. Psychology 91, K. E. Renner, C. Alksnis and L. Park at p. 100 personal freedom and the right of investigation of the police. For the same, while granting relief Under Section 438(1), appropriate conditions can be imposed Under Section 438(2) so as to ensure an uninterrupted investigation. The object of putting such conditions should be to avoid the possibility of the person hampering the investigation. Thus, any condition, which has no reference to the fairness or propriety of the investigation or trial, cannot be countenanced as permissible under the law. So, the discretion of the Court while imposing conditions must be exercised with utmost restraint.\u201d 28. It was urged that the observations made in Kunal Kumar and Sumit Mehta ought to be followed while imposing bail conditions. The appellants relying upon the observations made in para 18 of State of M.P v. Madanlal,26 submit that in cases of sexual offences, the concept of compromise, especially in the form of marriage between the accused and the prosecutrix shall not be thought of, as any such attempt would be offensive to the woman\u2019s dignity. \u201c18. \u2026We would like to clearly state that in a case of rape or attempt of rape, the conception of compromise under no circumstances can really be thought of. These are crimes against the body of a woman which is her own temple. These are offences which suffocate the breath of life and sully the reputation. And reputation, needless to emphasise, is the richest jewel one can conceive of in life. No one would allow it to be extinguished. When a human frame is defiled, the \u201cpurest treasure\u201d, is lost. Dignity of a woman is a part of her non- perishable and immortal self and no one should ever think of painting it in clay. There cannot be a compromise or settlement as it would be against her honour which matters the most. It is sacrosanct. Sometimes solace is given that the perpetrator of the crime has acceded to enter into wedlock with her which is nothing but putting pressure in an adroit manner; and we say with emphasis that the Courts are to remain absolutely away from this subterfuge to adopt a soft approach to the case, for any kind of liberal approach has to be put in the compartment of spectacular error. Or to put it differently, it would be in the realm of a sanctuary of error.\u201d 26 (2015) 7 SCC 681 29. The decision in Ramphal v. State of Haryana27 by order dated 27.11.2019, took note of the compromise between the survivor and accused persons but found that such compromise is of no relevance when deciding on rape and cases of sexual assault. \u201cIt is brought to our notice that during the pendency of the appeals, both the appellants have paid Rs. 1.5 lakhs each in favor of the prosecutrix and she has accepted the same willingly for getting the matter compromised. However, it is imperative to emphasize that we do not accept such compromise in matters relating to the offence of rape and similar cases of sexual assault. Hence, the aforesaid compromise is of no relevance in deciding this matter. On merits, we do not find any ground to interfere in as much as the evidence of the prosecutrix is coupled with the medical evidence which clearly proves that the offence of rape has been committed. Therefore, the Trial Court and the High Court have rightly convicted the accused/appellants.\u201d 30. Empirically, the statistics regarding certain kinds of crimes against women have not shown any significant decline. In states and union territories, 32033 rape cases (under Section 376 IPC) were registered in 2019; 4038 cases of attempt to rape were registered the same year (under Section 376 read with Section 511, IPC). As many as 88,387 cases under Section 354 IPC were registered the same year, whereas 6939 cases were registered under Section 509 (outraging the modesty of a woman) in 2019. In all, a total of 4, 05,861 crimes against women were reported in 2019 (as against 359849 in 2017 and 378236 in 2018). The statistic for a relatively new species of offensive activities, cybercrimes that are women-centric, such as Transmitting of Sexually Explicit Material (Sec. 67A/67B, Information Technology Act), Blackmailing Defamation/Morphing/creating Fake Profile etc) registered in 2019, were 1645. POCSO offences, where girl children were victims, reported in 2019 were 46,005.28 The role of the courts and law enforcement agencies as neutral authorities, under a duty to ensure fairness 27Crl. A. No. 438/2011 28https://ncrb.gov.in/sites/default/files/CII%202019%20Volume%201.pdf 31. The role of all courts is to make sure that the survivor can rely on their impartiality and neutrality, at every stage in a criminal proceeding, where she is the survivor and an aggrieved party. Even an indirect undermining of this responsibility cast upon the court, by permitting discursive formations on behalf of the accused, that seek to diminish his agency, or underplay his role as an active participant (or perpetrator) of the crime, could in many cases, shake the confidence of the rape survivor (or accuser of the crime) in the impartiality of the court. The current attitude regarding crimes against women typically is that \u201cgrave\u201d offences like rape are not tolerable and offenders must be punished. This, however, only takes into consideration rape and other serious forms of gender-based physical violence. The challenges Indian women face are formidable: they include a misogynistic society with entrenched cultural values and beliefs, bias (often sub-conscious) about the stereotypical role of women, social and political structures that are heavily male- centric, most often legal enforcement structures that either cannot cope with, or are unwilling to take strict and timely measures. Therefore, reinforcement of this stereotype, in court utterances or orders, through considerations which are extraneous to the case, would impact fairness. 32. Academic writings highlight that a judgment at all levels has a number of distinct audiences, each of which engages with it in a different way. The parties to the case and their counsel will be interested in how the judge resolves their specific dispute - what the law gives to or requires of them. At the same time, in a legal system where judgments of courts set precedents, and in particular within a common law system, judgments have significance beyond their authoritative resolution of a specific dispute\u2014particularly in the Supreme Court. Thus, the judge is not only communicating to the parties their rights and liabilities in the context of the specific dispute being litigated; the judge is also addressing the broader legal community\u2014 other lawyers, judges, legal academics, law students\u2014and indeed the public at large.29 33. Using rakhi tying as a condition for bail, transforms a molester into a brother, by a judicial mandate. This is wholly unacceptable, and has the effect of diluting and eroding the offence of sexual harassment. The act perpetrated on the survivor constitutes an offence in law, and is not a minor transgression that can be remedied by way of an apology, rendering community service, tying a rakhi or presenting a gift to the survivor, or even promising to marry her, as the case may be. The law criminalizes outraging the modesty of a woman. Granting bail, subject to such conditions, renders the court susceptible to the charge of re-negotiating and mediating justice between confronting parties in a criminal offence and perpetuating gender stereotypes. 34. The Inter-American Commission on Human Rights has noted that judicial stereotyping \u201cis a common and pernicious barrier to justice, particularly for women victims and survivors of violence. Such stereotyping causes judges to reach a view about cases based on preconceived beliefs, rather than relevant facts and actual enquiry.\u201d30 Furthering of rape myths and stereotypes by the judiciary, limits the emancipatory potential of the law. 35. \u2018Judicial stereotyping\u2019 refers to the practice of judges ascribing to an individual specific attributes, characteristics or roles by reason only of her or his membership in a particular social group (e.g. women). It is used, also, to refer to the practice of judges perpetuating harmful stereotypes through their failure to challenge them, for example by lower courts or parties to legal proceedings.31 Stereotyping 29Erica Rackley, The Art and Craft of Writing Judgements in Hunter, Rosemary and McGlynn, Clare and Rackley, Erika, eds. FEMINIST JUDGMENTS: FROM THEORY TO PRACTICE, Hart Publishing, Oxford. 30 Inter-American Commission on Human Rights, Access to Justice for Women Victims of Sexual Violence: Education and Health, OEA/Ser.L/V/II. Doc. 65 (2011) ; Simone Cusack, Eliminating Judicial Stereotyping, Paper submitted to the Office of the High Commissioner for Human Rights (2014). 31 Simone Cusack, Eliminating Judicial Stereotyping, Paper submitted to the Office of the High Commissioner for Human Rights (2014), p. 2. excludes any individualized consideration of, or investigation into, a person\u2019s actual circumstances and their needs or abilities.32 36. There have been notable rulings by the CEDAW33 Committee in this regard. In V.K. v. Bulgaria34, the Committee observed that: \u2018stereotyping affects women\u2019s right to a fair trial and that the judiciary must be careful not to create inflexible standards based on preconceived notions of what constitutes domestic or gender-based violence\u2019. 37. In Karen Tayag Vertido v. The Philippines35, the CEDAW Committee stressed that court should not create \u201cinflexible standards\u201d of what women should be or have done, when confronted with a situation of rape. 38. Judges can play a significant role in ridding the justice system of harmful stereotypes. They have an important responsibility to base their decisions on law and facts in evidence, and not engage in gender stereotyping. This requires judges to identify gender stereotyping, and identify how the application, enforcement or perpetuation of these stereotypes discriminates against women or denies them equal access to justice. Stereotyping might compromise the impartiality of a judge\u2019s decision and affect his or her views about witness credibility or the culpability of the accused person.36As a judge of the Canadian Supreme Court remarked: \u201cMyths and stereotypes are a form of bias because they impair the individual judge\u2019s ability to assess the facts in a particular case in an open-minded fashion. In fact, judging based on myths and stereotypes is entirely incompatible with keeping an open mind, because myths 32Supra, p. 17. 33The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), was adopted in 1979 by the UN General Assembly; it is sometimes described as an international bill of rights for women. The CEDAW Committee is set up under Article 17 of CEDAW. 34V.K. v. Bulgaria, Communication No. 20/2008, UN Doc. CEDAW/C/49/D/20/2008 (2011) (CEDAW) 35Karen Tayag Vertido v. The Philippines, Communication No. 18/2008, UN Doc. CEDAW/C/46/D/18/2008 (2010) (CEDAW), para. 8.4. 36 Simone Cusack, Eliminating Judicial Stereotyping, Paper submitted to the Office of the High Commissioner for Human Rights (2014), p. 22. and stereotypes are based on irrational predisposition and generalization, rather than fact.\u201d37 39. The stereotype of the ideal sexual assault victim disqualifies several accounts of lived experiences of sexual assault. Rape myths38 undermine the credibility of those women who are seen to deviate too far from stereotyped notions of chastity, resistance to rape, having visible physical injuries, behaving a certain way, reporting the offence immediately, etc. In the words of the Supreme Court of Canada, in R v. Seaboyer,39 \u201cThe woman who comes to the attention of the authorities has her victimization measured against the current rape mythologies, i.e., who she should be in order to be recognized as having been, in the eyes of the law, raped; who her attacker must be in order to be recognized, in the eyes of the law, as a potential rapist; and how injured she must be in order to be believed.\u201d 40. The Bangalore Principles of Judicial Conduct, 2002, were from a meeting of Chief Justices of Asian and African countries, and endorsed by the UN Commission on Human Rights, the ECOSOC and the Commission on Crime Prevention and Criminal Justice. The Bangalore Principles provide that: \u201c2.4 A judge shall not knowingly, while a proceeding is before, or could come before, the judge, make any comment that might reasonably be expected to affect the outcome of such proceeding or impair the manifest fairness of the process. Nor shall the judge make any comment in public or otherwise that might affect the fair trial of any person or issue. ******** 5.1 A judge shall be aware of, and understand, diversity in society and differences arising from various sources, including but not limited to race, colour, sex, religion, national origin, caste, disability, age, 37 The Honourable Madame Justice Claire L\u2019Heureux-Dub\u00e9, \u2018Beyond the Myths: Equality, Impartiality, and Justice\u2019 (2001) 10(1) Journal of Social Distress and the Homeless 87, 88. 38 Explained in R. v. Osolin, [1993] 4 S.C.R. 595 (a Canadian case) as opinions improperly forming the background for considering evidentiary issues in sexual assault trials. These include the false concepts that: women cannot be raped against their will; only \u201cbad girls\u201d are raped; anyone not clearly of \u201cgood character\u201d is more likely to have consented. 39R v. Seaboyer, [1991] 2 S.C.R. 577, 650 (L\u2019Heureux-Dub\u00e9 & Gonthier JJ, dissenting in part) (Canada, Supreme Court). marital status, sexual orientation, social and economic status and other like causes (\"irrelevant grounds\"). 5.2 A judge shall not, in the performance of judicial duties, by words or conduct, manifest bias or prejudice towards any person or group on irrelevant grounds.\u201d 41. This court held, in State of Punjab v. Gurmit Singh & Ors.40 that: \u201cThe trial court not only erroneously disbelieved the prosecutrix, but quite uncharitably and unjustifiably even characterised her as a girl \u201cof loose morals\u201d or \u201csuch type of a girl\u201d. \u2026 We must express our strong disapproval of the approach of the trial court and its casting a stigma on the character of the prosecutrix. The observations lack sobriety expected of a judge. \u2026 The courts are expected to use self- restraint while recording such findings which have larger repercussions so far as the future of the victim of the sex crime is concerned and even wider implications on the society as a whole \u2013 where the victim of crime is discouraged \u2013 the criminal encouraged and in turn crime gets rewarded!\u2019 ***** \u201cLanguage is 'a medium of social action' not 'merely a vehicle of communication' and the written judicial opinion is the primary, if not the sole, medium in which judges within our judicial system execute language.\u201d41 ***** \u2026the text of judicial decisions and opinions constitutes the law by which our common law system abides and the basis on which judges, lawyers, and citizens make reasoned legal judgments about future action.\u201d42 42. This Court therefore holds that the use of reasoning/language which diminishes the offence and tends to trivialize the survivor, is especially to be avoided under all circumstances. Thus, the following conduct, actions or situations are hereby deemed irrelevant, e.g. - to say that the survivor had in the past consented to such or similar acts or that she behaved promiscuously, or by her acts or clothing, provoked the alleged action of the accused, that she behaved in a manner unbecoming of chaste or 40State of Punjab v. Gurmit Singh & Ors., 1996 SCC (2) 384. 41 Rachael K. Hinkle et al., A Positive Theory and Empirical Analysis of Strategic Word Choice in District Court Opinions, 4 J. OF LEGAL ANALYSIS 407, 408 (2012). 42Ibid, at p. 409. \u201cIndian\u201d women, or that she had called upon the situation by her behavior, etc. These instances are only illustrations of an attitude which should never enter judicial verdicts or orders or be considered relevant while making a judicial decision; they cannot be reasons for granting bail or other such relief. Similarly, imposing conditions that implicitly tend to condone or diminish the harm caused by the accused and have the effect of potentially exposing the survivor to secondary trauma, such as mandating mediation processes in non-compoundable offences, mandating as part of bail conditions, community service (in a manner of speaking with the so-called reformative approach towards the perpetrator of sexual offence) or requiring tendering of apology once or repeatedly, or in any manner getting or being in touch with the survivor, is especially forbidden. The law does not permit or countenance such conduct, where the survivor can potentially be traumatized many times over or be led into some kind of non-voluntary acceptance, or be compelled by the circumstances to accept and condone behavior what is a serious offence. 43. The instances spelt out in the present judgment are only illustrations; the idea is that the greatest extent of sensitivity is to be displayed in the judicial approach, language and reasoning adopted by the judge. Even a solitary instance of such order or utterance in court, reflects adversely on the entire judicial system of the country, undermining the guarantee to fair justice to all, and especially to victims of sexual violence (of any kind from the most aggravated to the so-called minor offences). 44. Having regard to the foregoing discussion, it is hereby directed that henceforth: (a) Bail conditions should not mandate, require or permit contact between the accused and the victim. Such conditions should seek to protect the complainant from any further harassment by the accused; (b) Where circumstances exist for the court to believe that there might be a potential threat of harassment of the victim, or upon apprehension expressed, after calling for reports from the police, the nature of protection shall be separately considered and appropriate order made, in addition to a direction to the accused not to make any contact with the victim; (c) In all cases where bail is granted, the complainant should immediately be informed that the accused has been granted bail and copy of the bail order made over to him/her within two days; (d) Bail conditions and orders should avoid reflecting stereotypical or patriarchal notions about women and their place in society, and must strictly be in accordance with the requirements of the Cr. PC. In other words, discussion about the dress, behavior, or past \u201cconduct\u201d or \u201cmorals\u201d of the prosecutrix, should not enter the verdict granting bail; (e) The courts while adjudicating cases involving gender related crimes, should not suggest or entertain any notions (or encourage any steps) towards compromises between the prosecutrix and the accused to get married, suggest or mandate mediation between the accused and the survivor, or any form of compromise as it is beyond their powers and jurisdiction; (f) Sensitivity should be displayed at all times by judges, who should ensure that there is no traumatization of the prosecutrix, during the proceedings, or anything said during the arguments, and (g) Judges especially should not use any words, spoken or written, that would undermine or shake the confidence of the survivor in the fairness or impartiality of the court. 45. Further, courts should desist from expressing any stereotype opinion, in words spoken during proceedings, or in the course of a judicial order, to the effect that (i) women are physically weak and need protection; (ii) women are incapable of or cannot take decisions on their own; (iii) men are the \u201chead\u201d of the household and should take all the decisions relating to family; (iv) women should be submissive and obedient according to our culture; (v) \u201cgood\u201d women are sexually chaste; (vi) motherhood is the duty and role of every woman, and assumptions to the effect that she wants to be a mother; (vii) women should be the ones in charge of their children, their upbringing and care; (viii) being alone at night or wearing certain clothes make women responsible for being attacked; (ix) a woman consuming alcohol, smoking, etc. may justify unwelcome advances by men or \u201chas asked for it\u201d; (x) women are emotional and often overreact or dramatize events, hence it is necessary to corroborate their testimony; (xi) testimonial evidence provided by women who are sexually active may be suspected when assessing \u201cconsent\u201d in sexual offence cases; and (xii) lack of evidence of physical harm in sexual offence case leads to an inference of consent by the woman. 46. As far as the training and sensitization of judges and lawyers, including public prosecutors goes, this court hereby mandates that a module on gender sensitization be included, as part of the foundational training of every judge. This module must aim at imparting techniques for judges to be more sensitive in hearing and deciding cases of sexual assault, and eliminating entrenched social bias, especially misogyny. The module should also emphasize the prominent role that judges are expected to play in society, as role models and thought leaders, in promoting equality and ensuring fairness, safety and security to all women who allege the perpetration of sexual offences against them. Equally, the use of language and appropriate words and phrases should be emphasized as part of this training. 47. The National Judicial Academy is hereby requested to devise, speedily, the necessary inputs which have to be made part of the training of young judges, as well as form part of judges\u2019 continuing education with respect to gender sensitization, with adequate awareness programs regarding stereotyping and unconscious biases that can creep into judicial reasoning. The syllabi and content of such courses shall be framed after necessary consultation with sociologists and teachers in psychology, gender studies or other relevant fields, preferably within three months. The course should emphasize upon the relevant factors to be considered, and importantly, what should be avoided during court hearings and never enter judicial reasoning. Public Prosecutors and Standing Counsel too should undergo mandatory training in this regard. The training program, its content and duration shall be developed by the National Judicial Academy, in consultation with State academies. The course should contain topics such as appropriate court-examination and conduct and what is to be avoided. 48. Likewise, the Bar Council of India (BCI) should also consult subject experts and circulate a paper for discussion with law faculties and colleges/universities in regard to courses that should be taught at the undergraduate level, in the LL.B program. The BCI shall also require topics on sexual offences and gender sensitization to be mandatorily included in the syllabus for the All India Bar Examination. 49. Before parting, this Court expresses its gratitude for the valuable suggestions and the assistance rendered by the learned Attorney General pursuant to the notice issued. We also appreciate the submissions made on behalf of the appellant(s) and the intervenor(s). 50. Each High Court should, with the help of relevant experts, formulate a module on judicial sensitivity to sexual offences, to be tested in the Judicial Services Examination. 51. In the light of the above, the bail conditions in the impugned judgment, extracted at para 3 above, are set aside, and expunged from the record. 52. Before concluding, it would be appropriate to quote certain excerpts from the Canadian Commentaries on Judicial Conduct:43 43 Les \u00c9ditions Yvon Blais Inc, 1991, quoted by Rt. Hon\u2019ble Beverley Mclachlin, former Chief Justice of Canada, in her Speech Judging in a Democratic State https://www.scc-csc.ca/judges-juges/spe-dis/bm-2004-06-03-eng.aspx#fnb10 \u201c[T]he wisdom required of a judge is to recognize, consciously allow for, and perhaps to question, all the baggage of past attitudes and sympathies that fellow citizens are free to carry, untested, to the grave. True impartiality does not require that the judge have no sympathies or opinions; it requires that the judge nevertheless be free to entertain and act upon different points of view with an open mind.\u201d 53. Judges play \u2013 at all levels \u2013 a vital role as teachers and thought leaders. It is their role to be impartial in words and action, at all times. If they falter, especially in gender related crimes, they imperil fairness and inflict great cruelty in the casual blindness to the despair of the survivors. 54. The appeal is disposed of in the above terms; there shall be no order on costs. ............................................J [A. M. KHANWILKAR] ..................................................J [S. 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{"id": "16717267", "text": "1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO.1352 OF 2019 MS. X ...PETITIONER(S) VERSUS THE STATE OF JHARKHAND & ORS. ...RESPONDENT(S) J U D G M E N T ASHOK BHUSHAN, J. This writ petition has been filed by a rape victim invoking the jurisdiction of this Court under Article 32 of the Constitution. 2. This Court entertained the writ petition and while issuing notice on 29.11.2020 passed the following order: \u201cIssue notice. Mr. Tapesh Kumar Singh, learned standing counsel for the State of Jharkhand, accepts notice on behalf of respondent/State. Signature Not Verified Digitally signed by Rajni Mukhi Date: 2021.01.20 15:31:24 IST Let the respondent/State file an affidavit Reason: giving details of all proceedings initiated by the petitioner or against her and the status of those proceedings. We, however, observe that the respondent no.3/Home Secretary shall also ensure that the concerned police authorities are instructed to ensure protection of the petitioner. List after four weeks.\u201d 3. A counter-affidavit has been filed on behalf of the State of Jharkhand to which rejoinder has also been filed by the petitioner. The petitioner has also filed certain additional documents. 4. From the pleadings of the parties following facts emerged: The petitioner claims to be a Scheduled Tribe in the State of Jharkhand. The petitioner was born on 24.12.1984. On 31.03.1998, petitioner was taken away by one Basant Yadav. Petitioner\u2019s father, Rajender Badaik, lodged a complaint. Basant Yadav was apprehended on 02.04.1998. Father of the petitioner and Police of the concerned Police Station got the marriage of the petitioner solemnised with Basant Yadav. After one year of the marriage, one son was born, named Manish Yadav. Petitioner filed a complaint as well as case for maintenance against her husband, Basant Yadav. 5. The petitioner obtained divorce from Basant Yadav and the custody of son was given to Basant Yadav. On 08.06.2002, petitioner went to Dultonganj on asking of Basant Yadav to meet her son on which date she was raped by one Mohd. Ali and three other accused. Case No.162 of 2002 under Section 376/34 read with Section 3(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989was registered in which accused, Mohd. Ali was apprehended and put on trial. 6. The petitioner lodged an FIR against the DY. Inspector General of Police on 02.08.2005 under Section 376,376(2)(a)IPC and Section 3(1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,1989 on which on 03.08.2005 Case No.304 of 2005 was registered.The petitioner also lodged an FIR against an Inspector General of Police on which Sessions Trial No.257/2006 was registered. Certain other criminal cases got registered by the petitioner against different persons,some of which were filed under Section 376 IPC. In the Sessions Trial 11 of 2006, the accused Mohd Ali was convicted on 15.02.2014 with 10 years RI. 7. In the FIR lodged against Dy. Inspector General of Police final report was submitted which was accepted by the Court on 06.08.2007 insofar as FIR lodged against Inspector General of Police, Sessions Judge acquitted the Inspector General of Police by judgment and order dated 23.12.2017 against which criminal appeal has been filed in the High Court of Jharkhand. A criminal case was also lodged against the petitioner. 8. The petitioner\u2019s case in the writ petition is that she being the rape victim, whose identity was disclosed by the media and after knowing that the petitioner is a rape victim, no one is ready to give her accommodation even on rent. The petitioner in the writ petition invoked jurisdiction of this Court in the matter of rehabilitation of the petitioner. The petitioner also prays for direction to the respondent to protect the petitioner and her children\u2019s life. The petitioner after divorce from her first husband got married to one Rajesh Kujur with whom a son was also born. The petitioner has also lodged criminal case being No.56/2004 against her husband Rajesh Kujur which resulted in acquittal. 9. The petitioner has also filed a copy of the legal notice dated 09.08.2019 which was sent by the landlord of the petitioner asking the petitioner to vacate the premises on the ground of non-payment of rent. The petitioner sent a letter dated 05.12.2019 stating that the landlord had sealed the house on 04.12.2019. 10. In the counter-affidavit by the State, the State has given a tabular chart containing status of 7 criminal cases which were initiated by the petitioner. In paragraph 7 one of the cases mentioned in the chart is the case filed against Mohd. Ali, Mohd. Ali was convicted on 15.02.2014 under Section 376(2)(g) IPC and Section 3(1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. In other criminal cases either the accused were acquitted ortrial is pending in some cases. In two FIRs lodged by the petitioner, in the year 2018 under Section 354 A(ii) as well as under Section 376, 448 and 506 IPC respectively the investigation is said to be going on. 11. The petitioner has appeared in person. Shri Tapesh Kumar Singh, learned counsel has appeared for the State of Jharkhand. 12. The petitioner submits that due to the petitioner being rape victim she is not getting any help from family friends or society. She, with three children, has no means of survival and she is not able to give education to her children. The administration, media and society has compelled the petitioner to lead a life with no security, no job and no shelter in future. 13. Shri Tapesh Kumar, learned counsel appearing for the State submits that the petitioner has lodged various FIRs alleging rape against several persons. It is submitted that against the petitioner also an FIR was lodged at Palamau Sadar PoliceCase No.194 of 2002 for the commission of the offences under Section 25(1-b)a of Arms Act,on the basis ofa written report submitted by the Assistant Sub-Inspector of Police in which charge-sheet has also been filed. It is submitted that since 02.10.2019 an armed Lady Constable, namely, Suman Surin has been deputed with the writ petitioner for her security. 14. It is further submitted that the State has taken care of making security arrangement of the petitioner and in pursuance of the order dated 06.01.2020 another security personnel has been deputed with the writ petitioner. Learned counsel, however, submits that the Police authority may be permitted to review the security from time to time to take appropriate measures in that regard. Shri Singh further submits that the petitioner is in a habit of making false allegations against several persons and officers. A complaint has recently been submitted making allegations of offences under Section 376 IPC. It is submitted that the petitioner has vacated the earlier accommodation of Subodh Thakur. 15. We have heard the petitioner in person as well as learned counsel appearing for the State. 16. There can be no denial that the petitioner is a rape victim. Even if we do not take into consideration other criminal cases filed by the petitioner under Section 376 IPC, in Case No.162/2002 where allegation of rape was made on 08.06.2002 the accused, Mohd. Ali has been convicted under Section 376(2)(g) IPC for 10 years RI. The petitioner being a rape victim deserves treatment as rape victim by all the authorities. 17. A rape victim suffers not only a mental trauma but also discrimination from the society. We may refer to the judgment of this Court in Nipun Saxena and another vs. Union of India and others, (2019) 2 SCC 703, wherein following observations were made by this Court: \u201c12. A victim of rape will face hostile discrimination and social ostracisation in society. Such victim will find it difficult to get a job, will find it difficult to get married and will also find it difficult to get integrated in society like a normal human being. \u2026\u2026\u2026\u201d 18. The petitioner herself has brought on record few orders passed in Writ Petition (Cr.)No.229 of 2014 (Padma @ Shushma Badaik vs. The State of Jharkhand and others)filed by the petitioner before the High Court of Jharkhand where in the order dated 12/11.09.2015 statement on behalf of the Counsel for the State was recorded by the High Court that State is ready to provide free education to the children of the writ petitioner. Following is the statement recorded by the High court on 12/11.09.2015: \u201cCounsel for the State has submitted that State is ready to provide free education to the children of the writ petitioner. If she will give her consent, her children shall be admitted in the Govt. Boarding School at Gumla and the expenses shall be borne by the Government.\u201d 19. The petitioner has two sons and one daughter. Manish Yadav appears to have been born after one year of the marriage which took place in the year 1998, eldest son, thus, as on date is major, two children of the petitioner are still minor. 20. On an inquiry by the Court as to which authority is to ensure that the minor children of the petitioner are provided free education, learned counsel submitted that it is Deputy Commissioner, Ranchi who can take the appropriate measures to ensure that the minor children of the petitioner are provided free education. Learned counsel for the State has submitted that education upto the age of 14 years in the State of Jharkhand is free which is provided by the State. We, thus, are of the view that Deputy Commissioner shall take appropriate steps to ensure that minor children of the petitioner are provided free education in any Government Institution at Ranchi. 21. The petitioner has also raised grievance regarding her identity which has been disclosed by the media. The petitioner has annexed certain materials along with writ petition and the additional documents. Section 228-A of the Indian Penal Code which has been inserted in the Indian Penal Code by Amendment Act43 of 1983 with effect from 25.12.1983 makes disclosure of the identity of the victim is an offence. Section 228-A is as follows: \u201cSection 228A. Disclosure of identity of the victim of certain offences etc.\u2014(1) Whoever prints or publishes the name or any matter which may make known the identity of any person against whom an offence under section 376, section 376A, section 376B, section 376C or section 376D is alleged or found to have been committed (hereafter in this section referred to as the victim) shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine. (2) Nothing in sub-section (1) extends to any printing or publication of the name or any matter which may make known the identity of the victim if such printing or publication is\u2014 (a) by or under the order in writing of the officer-in-charge of the police station or the police officer making the investigation into such offence acting in good faith for the purposes of such investigation; or (b) by, or with the authorisation in writing of, the victim; or (c) where the victim is dead or minor or of unsound mind, by, or with the authorisation in writing of, the next of kin of the victim: Provided that no such authorisation shall be given by the next of kin to anybody other than the chairman or the secretary, by whatever name called, of any recognised welfare institution or organisation. Explanation.\u2014For the purposes of this sub- section, \u201crecognised welfare institution or organisation\u201d means a social welfare institution or organisation recognised in this behalf by the Central or State Government. (3) Whoever prints or publishes any matter in relation to any proceeding before a court with respect to an offence referred to in sub- section (1) without the previous permission of such Court shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine. Explanation.\u2014The printing or publication of the judgment of any High Court or the Supreme Court does not amount to an offence within the meaning of this section.\u201d 22. This Court in Nipun Saxena and another (supra) has occasion to consider Section 228-A wherein this Court in para 50.1 has issued following directions: \u201c50.1. No person can print or publish in print, electronic, social media, etc. the name of the victim or even in a remote manner disclose any facts which can lead to the victim being identified and which should make her identity known to the public at large.\u201d 23. The law with regard to Section 228A is well established, all including the media, both print and electronic have to follow the law. 24. With regard to the payment of compensation to the petitioner as a rape victim, along with additional documents the petitioner has brought on record materials to indicate that the decision was taken by the District Legal Services Authority, Ranchi to pay compensation of Rs.1,00,000/- by letter dated 06.03.2017. The letter of the Secretary, District Legal Services Authority, Ranchi has been brought on record by the petitioner herself. The grant of compensation has been considered under the Jharkhand Victim Compensation Scheme, 2012 as amended in 2016. 25. There is a statutory scheme already enforced in the State of Jharkhand framed under Section 357A of the Code of Criminal Procedure Code, 1973,which provides procedure for grant of compensation. The petitioner had already made application to seek compensation under the above Scheme and payment of compensation has already been made. 26. The next grievance which has been highlighted by the petitioner is the petitioner\u2019s inability to get any rented accommodation in Ranchi due to she being a rape victim. In the counter-affidavit filed by the State, it is clear that the petitioner has lived at several/different places but due to the dispute with the landlord she has to leave the premises. There are various Central as well as State Schemes for providing residential accommodation to persons living below poverty line and other deserving cases, the Deputy Commissioner, Ranchi may consider the case of the petitioner for allotment of any housing accommodation under Prime Minister Awas Yojna or any other Scheme of the Centre or the State. 27. In view of the foregoing discussion, we dispose of this writ petition with the following directions: (1) The Deputy Commissioner, Ranchi is directed to take measure to ensure that minor children of the petitioner are provided free education in any of the Government Institutions in District Ranchi where the petitioner is residing till they attain the age of 14 years. (2) The Deputy Commissioner, Ranchi may also consider the case of the petitioner for providing house under Prime Minister Awas Yojna or any other Central or State Scheme in which petitioner could be provided accommodation. (3) The Senior Superintendent of Police, Ranchi and other competent authority shall review the Police security provided to the petitioner from time to time and take such measures as deem fit and proper. (4) The District Legal Services Authority, Ranchi on representation made by the petitioner shall render legal services to the petitioner as may be deemed fit to safeguard the interest of the petitioner. ......................J. ( ASHOK BHUSHAN ) ......................J. ( R. SUBHASH REDDY ) ......................J. ( M.R. 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{"id": "1304109", "text": "REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1919 of 2010 Anversinh @ Kiransinh Fatesinh Zala ..... Appellant(s) VERSUS State of Gujarat .....Respondent(s) JUDGMENT Surya Kant, J: This criminal appeal has been heard through video conferencing. The appellant\u00adAnversinh impugns the judgment pronounced by the High Court of Gujarat dated 28.07.2009 by which his conviction under Section 376 of the Indian Penal Code, 1860 (\u201cIPC\u201d) was overturned, but the charge of kidnapping under Sections 363 and 366 of IPC was upheld and consequential sentence of rigorous imprisonment of five years was maintained. FACTS 2. The complainant \u00ad Kiransinh Jalamsinh (PW\u00ad1) when came back Signature Not Verified from work on the night of 14.05.1998, he was informed by his wife Digitally signed by Vishal Anand Date: 2021.01.13 14:27:22 IST Reason: that their eldest sixteen\u00adyear\u00adold daughter (PW\u00ad3; hereinafter, Page | 1 \u201cprosecutrix\u201d) had not returned home. Educated till Class VII, the prosecutrix worked as a maid; sweeping and mopping a few hours every noon and evening. The complainant\u00adfather made enquiries at her workplace where he learnt from a watchman that his daughter hadn\u2019t come for her second shift and that she was last seen coming out of the vacant Bungalow No. 4 of the Ramjani Society with the appellant. It was learnt upon enquiry that the appellant had left for his home in Surpur with the prosecutrix. The complainant rushed to the appellant\u2019s home with his uncle and brother\u00adin\u00adlaw but could not trace the prosecutrix\u2019s whereabouts. After returning to Ahmedabad, a police complaint was registered on 16.05.1998. The police were able to locate both the appellant and the prosecutrix to a farm near Modasa, from where they were brought back to Ahmedabad on 21.05.1998. After medical examination and seizure of her clothes, the prosecutrix was reunited with her family. 3. The prosecution examined eight witnesses and adduced twelve documents in order to prove their case that the minor prosecutrix was forcibly taken by the appellant with the intention of marriage and later subjected to sexual intercourse against her will. The prosecutrix\u2019s father (PW\u00ad1) corroborated the version of events noted above and testified that his daughter who was aged around 15 years had been taken from his custody without his consent. He additionally deposed Page | 2 that he was informed by the prosecutrix\u2019s friend, Rekha, that she had communicated a message from a boy to the prosecutrix asking her to come to \u2018Sardarnagar\u2019. PW\u00ad2, an assistant teacher at the prosecutrix\u2019s primary school, brought the school records and testified that her date of birth at the time of admission was recorded as 08.02.1982. The prosecutrix (PW\u00ad3) identified the appellant and deposed that she had been caught by him on her way to work and was forcibly taken in an auto\u00adrickshaw to a nearby bus stand from where she was transported by bus to the appellant\u2019s village. She further claimed to have repeatedly been raped and pressurised into performing marriage with the appellant. The prosecutrix nevertheless admitted during cross\u00ad examination to being in love with the appellant, having had consensual sexual intercourse with him on a prior date and also having met him outside her home on previous occasions. It further emerged that during her alleged kidnapping, she was seated with other passengers on the back seat of the autorickshaw whereas the appellant was on the front seat. She admitted to spending a week at the appellant\u2019s village where both went to work together and were living akin to husband and wife. PW\u00ad4 and PW\u00ad6 who were panch witnesses to the recording of the FIR, physical condition of the prosecutrix and seizure of the prosecutrix\u2019s clothes, both turned hostile and discarded the prosecution\u2019s version. PW\u00ad5, being a Doctor Page | 3 at the Civil Hospital, proved the medical record and injury certificates showing that the prosecutrix had indeed been subjected to sexual intercourse. Finally, PW\u00ad7, was the police officer who registered the FIR and PW\u00ad8 deposed being the Investigating Officer of the case. 4. It is pertinent to mention that the Investigating Officer (PW\u00ad8) admitted in his cross\u00adexamination that there was no reference to Rekha\u2019s statement in the FIR; that the prosecutrix had not stated that the appellant caught her on way to work and that she had been forcefully abducted, or that her modesty was outraged. Instead, PW\u00ad8 disclosed that the prosecutrix in her statement under Section 161 of the Code of Criminal Procedure, 1973 (\u201cCrPC\u201d) claimed to know the appellant for a month prior to the occurrence, and of having a regular physical relationship in a damaged bungalow near her place of work. After they were caught by the guard while coming out of such bungalow, they had run away to Surpur where they started labour work on the farm of one Bhikabhai to earn a livelihood and co\u00adhabit as husband and wife. Besides these oral depositions, the prosecution also produced documents in the form of birth certificate, medical papers, FSL report, police and other records. 5. At the stage of recording statement under Section 313 of the CrPC on 01.11.2002, the appellant stated his age as 23 years and claimed to be innocent. The legal aid counsel, engaged from the Page | 4 defence side, controverted the prosecution\u2019s imputations and resultant conclusions. A parallel version was projected wherein both appellant and the prosecutrix were allegedly in love and had consensual physical relations since long before the date of the incident. It was claimed that the prosecutrix had run away solely and completely on her own accord; and had wished to marry the appellant without any enticement on his side. A catena of case laws was cited to show that neither charges of kidnapping nor rape were made out in such cases of love affairs. 6. The learned Additional Sessions Judge vide his order dated 16.12.2002 held that the testimony of the prosecutrix unequivocally established that she had been raped three to four times by the appellant, thus meriting his conviction under Section 376 of IPC. It was further observed that although there was a love affair but considering the fact that the prosecutrix was 16 years, 3 months and 6 days old at the time of occurrence and was thus minor, her consent was wholly irrelevant for the charge of kidnapping. In light of the prosecutrix\u2019s claim of forcible abduction and discovery along with the appellant, it was also held that the appellant had enticed and lured the minor girl with the intention to have intercourse and marriage, and thus all the ingredients of Sections 363 and 366 of IPC were well established. Considering the serious nature of the offence, the trial Page | 5 Court awarded sentence of one\u00adyear rigorous imprisonment and fine of Rs 1,000 (or simple imprisonment of two months in lieu thereof) for offence under Section 363; five years rigorous imprisonment and fine of Rs 5,000 (or simple imprisonment of three months in lieu thereof) for offence under Section 366; and ten years rigorous imprisonment and fine of Rs 10,000 (or simple imprisonment of six months in lieu thereof) for offence under Section 376 of IPC. 7. The appellant assailed his conviction before the High Court claiming that the parties were in love owing to which the prosecutrix had left her parents\u2019 home and gone with him at her own free will. Additionally, she never raised any protest or alarm despite numerous opportunities to do so and thus none of the constituents of \u2018kidnapping\u2019 or \u2018rape\u2019 was established. 8. The High Court in its order under appeal observed that the factum of the prosecutrix being in love with the accused having been established beyond any doubt coupled with the fact that they used to meet frequently, the appellant could not be held guilty of committing \u2018rape\u2019 and his consequential conviction and sentence under Section 376 IPC was set aside. However, there being no evidence suggesting that the prosecutrix had consented to be taken from her parents\u2019 lawful custody and given her undisputable minority, the appellant\u2019s conviction under Sections 363 and 366 of IPC was sustained. Page | 6 CONTENTIONS OF PARTIES 9. The appellant being aggrieved by his conviction under the charge of kidnapping has approached this Court re\u00adasserting his innocence. Learned counsel for the appellant highlighted that the High Court has acknowledged that there was a love affair, frequent meetings, and consensual relationship between the parties, which merited the appellant\u2019s acquittal under Section 376 IPC. But in the very same breath, the High Court has also held that the prosecutrix did not willingly leave her parents\u2019 custody and had not consented to be taken for marriage. These two findings were canvassed as being mutually contradictory. Reliance was placed on the judgment of this Court in S. Varadarajan v. State of Madras,1 to drive home the point that voluntary abandonment of home by a minor girl would not amount to kidnapping, and that in the absence of some active involvement, the appellant could not be said to have \u2018taken\u2019 or \u2018enticed\u2019 the prosecutrix. 10. In contrast, learned State Counsel supported the impugned judgment of conviction. He emphasised on the concurrent findings of the Courts below read with the plain language of the Statute (IPC) and re\u00aditerated that consent of a girl below 18 years could be no excuse in a case of \u2018kidnapping\u2019 within the meaning of Section 361 IPC. ANALYSIS (1965) 1 SCR 243. Page | 7 I. Whether a consensual affair can be a defence against the charge of kidnapping a minor? 11. Having given our thoughtful consideration to the rival submissions, it appears to us that although worded succinctly, the impugned judgment does not err in appreciating the law on kidnapping. It would be beneficial to extract the relevant parts of Sections 361 and 366 of IPC which define \u2018Kidnapping from Lawful Guardianship\u2019 and consequential punishment. These provisions read as follows: \u201c361. Kidnapping from lawful guardianship.\u2014Whoever takes or entices any minor under [sixteen] years of age if a male, or under [eighteen] years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship. Explanation.\u2014The words \u201clawful guardian\u201d in this section include any person lawfully entrusted with the care or custody of such minor or other person. xxx 366. Kidnapping, abducting or inducing woman to compel her marriage, etc.\u2014Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term Page | 8 which may extend to ten years, and shall also be liable to fine; [and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid].\u201d 12. A perusal of Section 361 of IPC shows that it is necessary that there be an act of enticing or taking, in addition to establishing the child\u2019s minority (being sixteen for boys and eighteen for girls) and care/keep of a lawful guardian. Such \u2018enticement\u2019 need not be direct or immediate in time and can also be through subtle actions like winning over the affection of a minor girl. 2 However, mere recovery of a missing minor from the custody of a stranger would not ipso\u00adfacto establish the offence of kidnapping. Thus, where the prosecution fails to prove that the incident of removal was committed by or at the instigation of the accused, it would be nearly impossible to bring the guilt home as happened in the cases of King Emperor v. Gokaran3 and Emperor v. Abdur Rahman4. 13. Adverting to the facts of the present case, the appellant has unintentionally admitted his culpability. Besides the victim being recovered from his custody, the appellant admits to having established Thakorlal D Vadgama v. State of Gujarat, (1973) 2 SCC 413, \u00b6 10. AIR 1921 Oudh 226. AIR 1916 All 210. Page | 9 sexual intercourse and of having an intention to marry her. Although the victim\u2019s deposition that she was forcefully removed from the custody of her parents might possibly be a belated improvement but the testimonies of numerous witnesses make out a clear case of enticement. The evidence on record further unequivocally suggests that the appellant induced the prosecutrix to reach at a designated place to accompany him. 14. Behind all the chaff of legalese, the appellant has failed to propound how the elements of kidnapping have not been made out. His core contention appears to be that in view of consensual affair between them, the prosecutrix joined his company voluntarily. Such a plea, in our opinion, cannot be acceded to given the unambiguous language of the statute as the prosecutrix was admittedly below 18 years of age. 15. A bare perusal of the relevant legal provisions, as extracted above, show that consent of the minor is immaterial for purposes of Section 361 of IPC. Indeed, as borne out through various other provisions in the IPC and other laws like the Indian Contract Act, 1872, minors are deemed incapable of giving lawful consent. 5 Section 361 IPC, particularly, goes beyond this simple presumption. It bestows the ability to make crucial decisions regarding a minor\u2019s physical safety upon his/her guardians. Therefore, a minor girl\u2019s infatuation Satish Kumar Jayanti Lal Dabgar v. State of Gujarat, (2015) 7 SCC 359, \u00b6 15. Page | 10 with her alleged kidnapper cannot by itself be allowed as a defence, for the same would amount to surreptitiously undermining the protective essence of the offence of kidnapping. 16. Similarly, Section 366 of IPC postulates that once the prosecution leads evidence to show that the kidnapping was with the intention/knowledge to compel marriage of the girl or to force/induce her to have illicit intercourse, the enhanced punishment of 10 years as provided thereunder would stand attracted. 17. The ratio of S. Varadarajan (supra), although attractive at first glance, does little to aid the appellant\u2019s case. On facts, the case is distinguishable as it was restricted to an instance of \u201ctaking\u201d and not \u201centicement\u201d. Further, this Court in S. Varadarajan (supra) explicitly held that a charge of kidnapping would not be made out only in a case where a minor, with the knowledge and capacity to know the full import of her actions, voluntarily abandons the care of her guardian without any assistance or inducement on part of the accused. The cited judgment, therefore, cannot be of any assistance without establishing: first, knowledge and capacity with the minor of her actions; second, voluntary abandonment on part of the minor; and third, lack of inducement by the accused. 18. Unfortunately, it has not been the appellant\u2019s case that he had no active role to play in the occurrence. Rather the eye\u00adwitnesses have Page | 11 testified to the contrary which illustrates how the appellant had drawn the prosecutrix out of the custody of her parents. Even more crucially, there is little to suggest that she was aware of the full purport of her actions or that she possessed the mental acuities and maturity to take care of herself. In addition to being young, the prosecutrix was not much educated. Her support of the prosecution version and blanket denial of any voluntariness on her part, even if presumed to be under the influence of her parents as claimed by the appellant, at the very least indicates that she had not thought her actions through fully. 19. It is apparent that instead of being a valid defence, the appellant\u2019s vociferous arguments are merely a justification which although evokes our sympathy, but can\u2019t change the law. Since the relevant provisions of the IPC cannot be construed in any other manner and a plain and literal meaning thereof leaves no escape route for the appellant, the Courts below were seemingly right in observing that the consent of the minor would be no defence to a charge of kidnapping. No fault can thus be found with the conviction of the appellant under Section 366 of IPC. II. Whether the punishment awarded is just, and ought there be leniency given the unique circumstances? 20. Having held so, we feel that there are many factors which may not be relevant to determine the guilt but must be seen with a Page | 12 humane approach at the stage of sentencing. The opinion of this Court in State of Madhya Pradesh v. Surendra Singh6 on the need for proportionality during sentencing must be re\u00ademphasised. This Court viewed that: \u201c13. We again reiterate in this case that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. The court must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment. Meagre sentence imposed solely on account of lapse of time without considering the degree of the offence will be counterproductive in the long run and against the interest of the society.\u201d [emphasis supplied] 21. True it is that there cannot be any mechanical reduction of sentence unless all relevant factors have been weighed and whereupon the Court finds it to be a case of gross injustice, hardship, or palpably capricious award of an unreasonable sentence. It would thus depend upon the facts and circumstances of each case whether a superior Court should interfere with, and resultantly enhance or reduce the (2015) 1 SCC 222. Page | 13 sentence. Applying such considerations to the peculiar facts and findings returned in the case in hand, we are of the considered opinion that the quantum of sentence awarded to the appellant deserves to be revisited. 22. We say so for the following reasons: first, it is apparent that no force had been used in the act of kidnapping. There was no pre\u00ad planning, use of any weapon or any vulgar motive. Although the offence as defined under Section 359 and 361 of IPC has no ingredient necessitating any use of force or establishing any oblique intentions, nevertheless the mildness of the crime ought to be taken into account at the stage of sentencing. 23. Second, although not a determinative factor, the young age of the accused at the time of the incident cannot be overlooked. As mentioned earlier, the appellant was at the precipice of majority himself. He was no older than about eighteen or nineteen years at the time of the offence and admittedly it was a case of a love affair. His actions at such a young and impressionable age, therefore, ought to be treated with hope for reform, and not punitively. 24. Third, owing to a protracted trial and delays at different levels, more than twenty\u00adtwo years have passed since the incident. Both the victim and the appellant are now in their forties; are productive members of society and have settled down in life with their respective Page | 14 spouses and families. It, therefore, might not further the ends of justice to relegate the appellant back to jail at this stage. 25. Fourth, the present crime was one of passion. No other charges, antecedents, or crimes either before 1998 or since then, have been brought to our notice. The appellant has been rehabilitated and is now leading a normal life. The possibility of recidivism is therefore extremely low. 26. Fifth, unlike in the cases of State of Haryana v. Raja Ram7 and Thakorlal D. Vadgama v. State of Gujarat 8, there is no grotesque misuse of power, wealth, status or age which needs to be guarded against. Both the prosecutrix and the appellant belonged to a similar social class and lived in geographical and cultural vicinity to each other. Far from there being an imbalance of power; if not for the age of the prosecutrix, the two could have been happily married and cohabiting today. Indeed, the present instance is an offence: mala prohibita, and not mala in se. Accordingly, a more equitable sentence ought to be awarded. 27. Given these multiple unique circumstances, we are of the opinion that the sentence of five years\u2019 rigorous imprisonment awarded by the Courts below, is disproportionate to the facts of the this case. The concerns of both the society and the victim can be (1973) 1 SCC 544. (1973) 2 SCC 413. Page | 15 respected, and the twin principles of deterrence and correction would be served by reducing the appellant\u2019s sentence to the period of incarceration already undergone by him. CONCLUSION 28. In light of the above discussion, we are of the view that the prosecution has established the appellant\u2019s guilt beyond reasonable doubt and that no case of acquittal under Sections 363 and 366 of the IPC is made out. However, the quantum of sentence is reduced to the period of imprisonment already undergone. The appeal is, therefore, partly allowed in the above terms and the appellant is consequently set free. The bail bonds are discharged. \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026.. J. (N.V. RAMANA) .\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026 J. (S. ABDUL NAZEER) ..\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026...J. (SURYA KANT) NEW DELHI DATED : 12.01.2021 Page | 16", "spans": [{"start": 106, "end": 141, "label": "APP"}, {"start": 168, "end": 184, "label": "RESP"}, {"start": 213, "end": 223, "label": "JUDGE"}, {"start": 306, "end": 315, "label": "APP"}, {"start": 355, "end": 376, "label": "COURT"}, {"start": 383, "end": 393, "label": "DATE"}, {"start": 443, "end": 466, "label": "STAT"}, {"start": 469, "end": 472, "label": "STAT"}, {"start": 550, "end": 553, "label": "STAT"}, {"start": 674, "end": 693, "label": "APP"}, {"start": 765, "end": 775, "label": "DATE"}, {"start": 844, "end": 854, "label": "DATE"}, {"start": 1650, "end": 1660, "label": "DATE"}, {"start": 1805, "end": 1815, "label": "DATE"}, {"start": 2728, "end": 2738, "label": "DATE"}, {"start": 4553, "end": 4585, "label": "STAT"}, {"start": 4588, "end": 4592, "label": "STAT"}, {"start": 5192, "end": 5196, "label": "STAT"}, {"start": 5200, "end": 5210, "label": "DATE"}, {"start": 5950, "end": 5960, "label": "DATE"}, {"start": 6142, "end": 6145, "label": "STAT"}, {"start": 6683, "end": 6686, "label": "STAT"}, {"start": 7228, "end": 7231, "label": "STAT"}, {"start": 7285, "end": 7295, "label": "COURT"}, {"start": 7609, "end": 7619, "label": "COURT"}, {"start": 7943, "end": 7946, "label": "STAT"}, {"start": 8180, "end": 8183, "label": "STAT"}, {"start": 8422, "end": 8432, "label": "COURT"}, {"start": 8606, "end": 8609, "label": "STAT"}, {"start": 8644, "end": 8654, "label": "COURT"}, {"start": 8903, "end": 8936, "label": "PREC"}, {"start": 9368, "end": 9371, "label": "STAT"}, {"start": 9506, "end": 9509, "label": "STAT"}, {"start": 9913, "end": 9916, "label": "STAT"}, {"start": 11491, "end": 11494, "label": "STAT"}, {"start": 12187, "end": 12210, "label": "PREC"}, {"start": 12216, "end": 12239, "label": "PREC"}, {"start": 12446, "end": 12503, "label": "PREC"}, {"start": 13541, "end": 13544, "label": "STAT"}, {"start": 13607, "end": 13610, "label": "STAT"}, {"start": 13635, "end": 13660, "label": "STAT"}, {"start": 13730, "end": 13733, "label": "STAT"}, {"start": 13933, "end": 14002, "label": "PREC"}, {"start": 14229, "end": 14232, "label": "STAT"}, {"start": 14528, "end": 14542, "label": "PREC"}, {"start": 14761, "end": 14775, "label": "PREC"}, {"start": 16301, "end": 16304, "label": "STAT"}, {"start": 16640, "end": 16643, "label": "STAT"}, {"start": 16961, "end": 17002, "label": "PREC"}, {"start": 18419, "end": 18435, "label": "CASENO"}, {"start": 18910, "end": 18913, "label": "STAT"}, {"start": 20296, "end": 20324, "label": "PREC"}, {"start": 20330, "end": 20370, "label": "PREC"}, {"start": 21151, "end": 21167, "label": "CASENO"}, {"start": 21169, "end": 21185, "label": "CASENO"}, {"start": 21586, "end": 21589, "label": "STAT"}, {"start": 21849, "end": 21860, "label": "JUDGE"}, {"start": 21879, "end": 21894, "label": "JUDGE"}, {"start": 21915, "end": 21925, "label": "JUDGE"}, {"start": 21945, "end": 21955, "label": "DATE"}]}
{"id": "26913217", "text": "[REPORTABLE] IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 3767 OF 2010 THE STATE OF BIHAR & ORS. \u2026APPELLANT(S) VERSUS ARBIND JEE \u2026RESPONDENT(S) J U D G M E N T Hrishikesh Roy, J. 1. This appeal is directed against the judgment and order dated 29.9.2008 of the Patna High Court in LPA No. 245 of 2008. 2. The father of the respondent was working as a Home guard and after he died in harness, the respondent applied for Signature Not Verified compassionate Digitally signed by Rajni Mukhi appointment. The concerned Committee Date: 2021.09.28 13:32:22 IST Reason: recommended the respondent and others whereafter the order dated 20.11.1985 was issued by the Commandant, Bihar Home Guard forwarding the name of the respondent as one of the persons shortlisted for appointment on compassionate basis. The appointment was conditional upon physical fitness certificate issued by the Civil Surgeon and it was made clear that appointment of the enlisted persons will be effective only after due satisfaction of their capability, educational qualification etc. 3. The recommended persons appeared in the Home Guard Headquarter as directed, but the respondent was denied appointment as he was found deficient in the physical standards. Thus aggrieved, the respondent moved and obtained relief from the Patna High Court for appointment in Class IV post. As the respondent was shortlisted for the post of Adhinayak Lipik, he challenged the High Court order through SLP(C) No. 6437 of 1993. The resultant Civil Appeal No. 220 of 1996 was allowed by the Supreme Court with the following direction:- \u201c\u2026.We, therefore, allow this appeal and direct the respondents to appoint the appellant to the post of \u2018Adhinayak Lipik\u2019 in the Homeguard Department, State of Bihar within one month from the date of communication of this order.\u201d 4. Following the above direction of the Supreme Court, the respondent was appointed on 27.2.1996 by the order No. 108 of 1996 dated 10.2.1996 issued by the Commandant of the Bihar Home Guard Bn., Patna. Six years after joining service, an application was made on 10.9.2002 by the respondent claiming seniority from 5.12.1985 but the authorities rejected the claim on 20.11.2002 on the ground that the respondent was appointed on 27.2.1996 on direction of the Supreme Court and that he was not borne in service as on 5.12.1985. The rejection order was then challenged and the Patna High Court in the respondent\u2019s CWJC no. 6683/2003 directed the authority to consider the respondent\u2019s seniority from 5.12.1985. 5. The above order passed by the learned Single Judge was challenged by the State and the Division Bench on 29.9.2008 while dismissing the LPA no. 245 of 2008 noted that the respondent was denied appointment, (as proposed on 20.11.1985), on the ground that he did not conform to the physical standards applicable to a Constable and eventually the Supreme Court directed appointment of the respondent as Adhinayak Lipik in the Home Guard Department. Therefore, the appointment should relate back to the date of the initial order on 20.11.1985. With this observation, the State\u2019s LPA was dismissed by the order impugned in this appeal. 6. We have heard Mr. Abhinav Mukerji, learned counsel appearing for the appellants. The respondent is represented by Mr. Satvik Misra, learned counsel. 7. The issue to be answered here is whether the respondent is entitled to claim seniority in service from a retrospective date i.e. 20.11.1985 as was ordered by the High Court or whether he is entitled for seniority from the date he entered service. 8. It is important to bear in mind that the order No. 1169/1985, whereby the respondent along with few others were shortlisted for compassionate appointment, did not materialize and was in fact refused for the respondent as he failed to meet the physical standards. Eventually, following the direction issued by this Court on 2.1.1996 to appoint the respondent within one month from the date of communication of the Supreme Court\u2019s order, the respondent was appointed on 10.2.1996. The respondent joined service without demur and made no claim for any retrospective effect to his appointment, until addressing the representation on 10.9.2002, to claim seniority from 5.12.1985. 9. In the previous round before this Court, the respondent was concerned about securing appointment as Adhinayak Lipik and direction was issued to appoint him, specifying the time limit of one month. But there was no direction for allowing retrospective benefit to the appointee. In such circumstances, the High Court in our view should not have travelled beyond the order passed by this Court to hold in favour of the respondent that his seniority should be counted from 5.12.1985 although he entered service a decade later only on 10.2.1996. Moreover, the respondent even after entering service did not immediately claim the benefit of retrospective appointment, and only on 10.9.2002 he applied to the Commandant to claim seniority from 5.12.1985 which claim was however rejected by the Authority on 20.11.2002. 10. As earlier noted, the respondent entered service only on 10.2.1996 and yet under the impugned judgment, the High Court directed counting of his seniority from 20.11.1985 when he was not borne in service. The jurisprudence in the field of service law would advise us that retrospective seniority cannot be claimed from a date when an employee is not even borne in service. It is also necessary to bear in mind that retrospective seniority unless directed by court or expressly provided by the applicable Rules, should not be allowed, as in so doing, others who had earlier entered service, will be impacted. 11. To challenge the conferment of retrospective seniority, the learned counsel for the appellant has cited Shitla Prasad Shukla vs. State of UP and Ors.1 where this court speaking through Justice M. P. Thakkar rightly held that: \u201c10. \u2026\u2026The late comers to the regular stream cannot steal a march over the early arrivals in the regular queue. On principle the appellant cannot therefore succeed. What is more in matters of seniority the Court does not exercise jurisdiction akin to appellate jurisdiction against the determination by the competent authority, so long as the competent authority has acted bona fide and acted on principles of fairness and fair play. In a matter where there is no rule or regulation governing the situation or where there is one, but is not violated, the Court will not overturn the determination unless it would be unfair not to do so\u2026\u201d 1 (1986)(Supp.) SCC 185 12. The principles enunciated in Shitla Prasad Shukla (supra) are applicable to the case at hand. The compassionate appointment of the respondent is not being questioned here but importantly he is claiming seniority benefit for 10 years without working for a single day during that period. In other words, precedence is being claimed over other regular employees who have entered service between 1985 to 1996. In this situation, the seniority balance cannot be tilted against those who entered service much before the respondent. Seniority benefit can accrue only after a person joins service and to say that benefits can be earned retrospectively would be erroneous. Such view was expressed in many cases and most recently in Ganga Vishan Gujrati And Ors. Vs. State of Rajasthan and Ors. 2. Justice Dr. D. Y. Chandrachud speaking for the Court opined as under:- \u201c41. A consistent line of precedent of this Court follows the principle that retrospective seniority cannot be granted to an employee from a date when the employee was not borne on a cadre. Seniority amongst members of the same grade has to be counted from the date of initial entry into the grade. This principle emerges from the decision of the Constitution Bench of this Court in Direct 2 (2019) 16 SCC 28 Recruit Class II Engineering Officers\u2019 Association v State of Maharashtra3. The principle was reiterated by this Court in State of Bihar v Akhouri Sachindra Nath4 and State of Uttaranchal v Dinesh Kumar Sharma.5\u201d 13. The learned counsel for respondent relies on C. Jayachandran vs. State of Kerala6, to argue for retrospective seniority. The bench speaking through Justice Hemant Gupta in the context of a diligent litigant observed that: \u201c41 \u2026\u2026..The appellant has submitted the representation on 11-4-2012 i.e. within 1 year and 2 months of his joining and submitted reminder on 18-9-2014. It is the High Court which has taken time to take a final call on the representation of the appellant and other direct recruits. The appellant was prosecuting his grievances in a legitimate manner of redressal of grievances. Therefore, it cannot be said that the claim of the appellant was delayed as he has not claimed the date of appointment as 30-3-2009. The appellant having been factually appointed vide communication dated 22-12-2010, he could not assume or claim to assume charge prior to such offer of appointment. The appellant has to be granted notional seniority from the date the other candidates were appointed in pursuance of the same select list prepared on the basis of the common appointment process.\u201d 3 (1990) 2 SCC 715. 4 1991 Supp. (1) SCC 334. 5 (2007) 1 SCC 683. 6 (2020) 5 SCC 230 As can be seen from the above extracted passage, the benefit of notional seniority was claimed within 1 year from date of actual appointment. This was also a case where the contesting parties were recruited through a common competitive process. But the present is not a case of recruitment by selection and is a compassionate appointment made on this court\u2019s order. The court\u2019s direction to the State was to appoint within 1 month without specifying that the appointment should have a retrospective effect. The respondent never raised any claim for relating his appointment to an earlier date from this Court. Post appointment, he never raised any grievance within reasonable time, for fixing his date of appointment as 20.11.1985. Six years later, only on 10.9.2002, he made a representation and the same was rejected with the observation that on 1.8.1985, the respondent was yet to enter service. Proceeding with these facts, it is clearly discernible that the respondent has slept over his rights, and never earlier pointedly addressed his present claim either to the Supreme Court (in the earlier round) or to the State, soon after his appointment. Moreover, his was a compassionate appointment without any element of competitive recruitment where the similarly recruited has stolen a march over him. Therefore, the ratio in C. Jayachandran (supra) will be of no assistance to the respondent as that case is distinguishable on facts. 14. The records here reflects that the State have faithfully implemented the direction issued by this Court and appointed the respondent. Moreover, the action of the authorities in determination of the respondent\u2019s seniority from the date of entering service is found to be consistent with the applicable laws. There could be individual cases where a bunch of applicants are recruited through a common competitive process but for one reason or another, one of them is left out while others get appointed. When the denial of analogous appointment is founded to be arbitrary and legally incorrect, the benefit of notional seniority may be conferred on the deprived individual. However, the present is not a case of that category. 15. Supported by our above discussion, we are of the considered opinion that the High Court was in error in granting retrospective seniority to the respondent. The appeal is accordingly allowed and the impugned orders passed by the High Court are set aside and quashed. With this order the case is disposed of leaving the parties to bear their own cost. \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026J. [R. SUBHASH REDDY] \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026J. [HRISHIKESH ROY] NEW DELHI SEPTEMBER 28, 2021", "spans": [{"start": 20, "end": 42, "label": "COURT"}, {"start": 106, "end": 120, "label": "APP"}, {"start": 149, "end": 159, "label": "RESP"}, {"start": 191, "end": 205, "label": "JUDGE"}, {"start": 274, "end": 283, "label": "DATE"}, {"start": 291, "end": 307, "label": "COURT"}, {"start": 311, "end": 330, "label": "CASENO"}, {"start": 561, "end": 571, "label": "DATE"}, {"start": 658, "end": 668, "label": "DATE"}, {"start": 1323, "end": 1339, "label": "COURT"}, {"start": 1459, "end": 1469, "label": "COURT"}, {"start": 1484, "end": 1507, "label": "CASENO"}, {"start": 1523, "end": 1551, "label": "CASENO"}, {"start": 1571, "end": 1584, "label": "COURT"}, {"start": 1885, "end": 1898, "label": "COURT"}, {"start": 1932, "end": 1941, "label": "DATE"}, {"start": 1977, "end": 1986, "label": "DATE"}, {"start": 2108, "end": 2117, "label": "DATE"}, {"start": 2160, "end": 2169, "label": "DATE"}, {"start": 2212, "end": 2222, "label": "DATE"}, {"start": 2274, "end": 2283, "label": "DATE"}, {"start": 2304, "end": 2317, "label": "COURT"}, {"start": 2361, "end": 2370, "label": "DATE"}, {"start": 2420, "end": 2436, "label": "COURT"}, {"start": 2543, "end": 2552, "label": "DATE"}, {"start": 2662, "end": 2671, "label": "DATE"}, {"start": 2693, "end": 2712, "label": "CASENO"}, {"start": 2779, "end": 2789, "label": "DATE"}, {"start": 2901, "end": 2914, "label": "COURT"}, {"start": 3085, "end": 3095, "label": "DATE"}, {"start": 3209, "end": 3224, "label": "A.COUNSEL"}, {"start": 3309, "end": 3321, "label": "R.COUNSEL"}, {"start": 3472, "end": 3482, "label": "DATE"}, {"start": 3505, "end": 3515, "label": "COURT"}, {"start": 3634, "end": 3653, "label": "CASENO"}, {"start": 3916, "end": 3924, "label": "DATE"}, {"start": 4006, "end": 4019, "label": "COURT"}, {"start": 4061, "end": 4070, "label": "DATE"}, {"start": 4222, "end": 4231, "label": "DATE"}, {"start": 4257, "end": 4266, "label": "DATE"}, {"start": 4575, "end": 4585, "label": "COURT"}, {"start": 4740, "end": 4749, "label": "DATE"}, {"start": 4801, "end": 4810, "label": "DATE"}, {"start": 4945, "end": 4954, "label": "DATE"}, {"start": 5008, "end": 5017, "label": "DATE"}, {"start": 5071, "end": 5081, "label": "DATE"}, {"start": 5144, "end": 5153, "label": "DATE"}, {"start": 5195, "end": 5205, "label": "COURT"}, {"start": 5246, "end": 5256, "label": "DATE"}, {"start": 5802, "end": 5846, "label": "PREC"}, {"start": 5891, "end": 5904, "label": "JUDGE"}, {"start": 6619, "end": 6639, "label": "PREC"}, {"start": 7313, "end": 7333, "label": "PREC"}, {"start": 7390, "end": 7407, "label": "JUDGE"}, {"start": 7980, "end": 8019, "label": "PREC"}, {"start": 8025, "end": 8067, "label": "PREC"}, {"start": 8120, "end": 8155, "label": "PREC"}, {"start": 8231, "end": 8243, "label": "JUDGE"}, {"start": 8355, "end": 8364, "label": "DATE"}, {"start": 8438, "end": 8447, "label": "DATE"}, {"start": 8459, "end": 8469, "label": "COURT"}, {"start": 8796, "end": 8805, "label": "DATE"}, {"start": 8878, "end": 8888, "label": "DATE"}, {"start": 9190, "end": 9212, "label": "CASENO"}, {"start": 9216, "end": 9232, "label": "CASENO"}, {"start": 9973, "end": 9983, "label": "DATE"}, {"start": 10010, "end": 10019, "label": "DATE"}, {"start": 10101, "end": 10109, "label": "DATE"}, {"start": 10324, "end": 10337, "label": "COURT"}, {"start": 10582, "end": 10597, "label": "PREC"}, {"start": 11500, "end": 11510, "label": "COURT"}, {"start": 11651, "end": 11661, "label": "COURT"}, {"start": 11798, "end": 11814, "label": "JUDGE"}, {"start": 11867, "end": 11885, "label": "DATE"}]}
{"id": "160214", "text": "REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 3203 OF 2008 [Arising out of SLP (Civil) No. 568 of 2007] Babulal Badriprasad Varma ...Appellant Versus Surat Municipal Corporation & Ors. ...Respondents JUDGMENT S.B. SINHA, J : 1. Leave granted. 2. Interpretation and/ or application of the provisions of the Gujarat Town Planning and Urban Development Act, 1976 (for short \"the Act\") and the Rules framed thereunder known as the Gujarat Town Planning and Urban Development Rules, 1979 (for short \"the Rules\") is in question in this appeal which arises out of a judgment and order dated 27.12.2006 passed by a Division Bench of the High Court of Gujarat at Ahmedabad in Letters Patent Appeal No. 1611 of 2006 arising out of a judgment and order dated 23.11.2006 passed by a learned Single Judge of the said Court in SCA No. 7092 of 2001. 3. Before embarking upon the issue involved in this appeal, we may notice the admitted fact of the matter. The Government of Gujarat in exercise of its power conferred upon it under Section 65 of the Act made a scheme in respect of the town of Umra, Surat on 1.06.1999. Plot Nos. 17/7 and 17/8 were owned by Respondent No. 4 herein. Appellant was a tenant under the said respondent in respect of Plot No. 17/8 admeasuring 1067 sq.m. He used to run a business of marble and stone therein. A road widening project was proposed in terms of the said scheme. Notices therefor were issued both to the appellant as also the respondent no. 4. Appellant objected thereto. He, however, did not pursue his case in regard to the proposal for widening of the road. For the said public purpose, viz., widening of the road, 867 sq. m. of land was taken over leaving only 200 sq. m. of land. With a view to give effect to the provisions of the Act and the Rules framed thereunder, proceedings were initiated for allotment of the said land in terms of the Act. 20% of the land was taken over without payment of any compensation. In respect of the proceedings initiated for the purpose of re-allotment of the land, despite a public notice, the appellant did not file any objection. He did not take any part in the proceedings therefor. Respondent No. 4 was allotted a final plot bearing No. 157 and the said 200 sq. m. of land of plot No. 17/8 has merged in final plot No. 165 owned by the respondent No. 3. The Scheme was notified in the year 1999. Respondent No. 1 herein which is the statutory agency in terms of the Act for the purpose of implementation of the Scheme issued a notice under Section 67 of the Act upon the respondent no. 4 on or about 15.01.2000. As he did not respond thereto, a notice under Section 68 of the Act was served on him on 31.03.2000 stating: \"As per the said approved preliminary scheme the plot No. 157 is allotted to you. And, its pole demarcations were done by the town planning officer at site. The said Final Plot/ Original Plot is allotted in lieu of your No. 17/7, 17/8 paiki land. And, the said land is now vested in the Municipal Corporation from 1.7.1999, and is of the ownership of the Municipal Corporation. Thereafter the notice below section 67 for the change in occupation was issued on 15.1.2000 to you. In spite of this you have not handed over the possession. Therefore, as per the Gujarat Town Planning and Urban Development Rules, 1979 rule 33 the undersigned in exercise of powers conferred below section 68(1) and 8(2) of the Bombay Provincial Municipalities Act and below the section 68 notice under the Gujarat Town Planning and Urban Development Act this is to inform you that as shown in the sketch on the reverse the premises marked should be vacated within 7 days from receipt of the notice and had over the possession to the Surat Municipal Corporation. If you fail to do so then on completion of the stipulated time limit as per the Rule 33 of the Gujarat Town Planning and Urban Development Rules, 1979 the said land and the occupation on the same will be summarily evicted and your occupation will be removed and if you obstruct/ interfere on it after taking away the possession you trespass then as provided under Rule 33 of the Gujarat Town Planning and Urban Development Rules, 1979 the action as per the section 188 of the Indian Penal Code will be initiated against you before the Criminal Court, pleased take note of the same.\" 5. The validity and/ or legality of the said notice was questioned by the appellant by filing a writ petition in the High Court of Gujarat inter alia contending that the purported final allotment of plot No. 165 in favour of the respondent no. 3 and allotment of final plot No. 157 in favour of the respondent no. 4 were made without issuing any notice as envisaged under Sections 52 and 53 of the Act. In the said writ petition, it was prayed: \"8. On the facts and circumstances mentioned herein above, the Petitioner prays to your Lordships that: (A) Be pleased to issue writ of Mandamus or writ in the nature of Mandamus or appropriate writ, order or direction, quashing and setting aside the impugned action of acquiring and demolishing the structures available on the land in question, i.e., Original Plot No. 17/A - R.S. No. 17/P, situated at Umra, Surat.\" 6. A learned Single Judge of the High Court dismissed the said writ petition inter alia opining that the interest of landlord and tenant being common and in absence of any inter se dispute between them even if any portion of the land which remained in possession of the tenant was included in the Scheme, the proper remedy would be to claim compensation to that extent, holding: \"18. It appears that in the said decision, the Apex Court while considering the scheme on the touch- stone of the mandatory procedure to be followed by the authority under the Bombay Town Planning Rules, has given directions to provide alternative accommodation based on the earlier decision in case of Jaswantsingh Mathurasingh and upheld the scheme. Such is not the issue in the present case nor there is any complaint by the tenant that any special notice was not served or that the mandatory procedure for finalization of the scheme is not followed. Further, it appears that if the interest of the landlord and of the tenant is common and in absence of any inter se dispute between the landlord and tenant, even if any portion of the land which is in possession of the tenant is included in the scheme, the proper remedy for the tenant would be to claim for compensation to that extent and if such compensation is not received by him, he may resort to proper remedy available for recovery of the compensation to the extent of the area in his occupation. At least on ground that the tenant is in occupation, it would not be a case for interference with the scheme which is sanctioned and made a part of the statute. Suffice it to say that the tenant will be at liberty to resort to appropriate proceedings against the landlord for the inter se rights and also for entitlement of the compensation. But if the area of original plot no. 17/8 is included in the final scheme and in exchange of the original plot held by Keshav Gramini of 17/8 and 17/7, the final plot is already allotted and as observed earlier it was even otherwise in the ownership of the original holder and it is only on account of inter se dispute the other persons are lawfully occupying the land, the tenant cannot insist that his landlord must be allotted the land of final plot no. 157 simultaneously, when he is to be evicted or deprived of the portion of the land of original plot no. 17/8. Therefore, in my view considering the peculiar facts and circumstances of the present case, the decision of the Apex Court in case of Mansukhlal (supra) cannot be made applicable to the present case.\" 7. A Division Bench of the High Court dismissed an intra-court appeal preferred thereagainst. 8. Mr. U.U. Lalit, learned senior counsel appearing on behalf of the appellant, in support of this appeal, inter alia would submit: (i) The provisions of Sections 52 and 81 being imperative in character, no acquisition of land is permissible without service of any notice upon the persons interested which would include a tenant in occupation and carrying on business thereon. (ii) A tenant having regard to the provisions of the Transfer of Property Act or otherwise having an interest in the property cannot be deprived therefrom without following the procedure established by law and without initiation of any proceedings for acquisition of land. (iii) The tenant's interest being distinct and separate could not have been held to be merged with the interest of the landlord, either for the purpose of allotment of a final plot or otherwise in favour of the landlord. (iv) Appellant having a right over the remaining 200 sq. m. of the land of original plot No. 17/8 should be allowed to continue thereupon and final allotment made in favour of the respondent no. 3 to that extent should be cancelled. Mr. Lalit in support of his contention strongly relied upon a decision of this Court in Mansukhlal Jadavji Darji and Others v. Ahmedabad Municipal Corporation and Others [(1992) 1 SCC 384] and Jaswantsingh Mathurasingh and Another v. Ahmedabad Municipal Corporation and Others [1992 Supp (1) SCC 5]. 9. Mr. Prashant G. Desai, learned counsel appearing on behalf of the respondent no. 1, on the other hand, would submit: (i) Public notices having been issued in terms of the Rule 26 of the Rules, an objection which would nullify the Scheme cannot be entertained at this stage. (ii) Respondent No. 1 Corporation merely being interested in the implementation of the Scheme is entitled to obtain vacant possession from him so as to enable it to deliver it to the respondent No. 3 in whose favour plot No. 165 has been finally allotted. (iii) The Scheme in terms of Sub-section (3) of Section 65 of the Act having become a part of the Act, validity thereof cannot be questioned at this stage as modification of the Scheme, if any, will have to undergo the entire process once over again which is not contemplated under the Act. 10. The Act was enacted to consolidate and amend the law relating to the making and execution of development plans and town planning schemes in the State of Gujarat. 11. It is not necessary for us to delve deep into the statutory scheme. Suffice it to say that Chapter IV of the Act deals with control of development and use of land included in the development plans. Chapter V of the Act provides for town planning schemes. Section 40 of the Act empowers the appropriate authority to make one or more schemes. A declaration of intention to make a scheme is to be notified whereafter a draft scheme may be published. Section 45 provides for reconstitution of the plots, sub-section (2) whereof inter alia enables allotment of a final plot from an original plot by transfer of any adjoining lands. Section 52 contemplates issuance of a notice in a prescribed manner and in the prescribed form. 12. Section 52 of the Act provides for the contents of preliminary and final scheme. It inter alia provides for giving of a notice by the Town Planning Officer as follows: \"(1) In a preliminary scheme, the Town Planning Officer shall,- (i) after giving notice in the prescribed manner and in the prescribed form to the persons affected by the scheme, define and demarcate the areas allotted to, or reserved for, any public purpose, or for a purpose of the appropriate authority and the final plots; (ii) after giving notice as aforesaid, determine in a case in which a final plot is to be allotted to persons in ownership in common, the shares of such persons;\" Further, Sub-section (3) of Section 65, Sections 67 and 68 of the Act read as under: \"65 - Power of Government to sanction or refuse to sanction the scheme and effect of sanction - (3) On and After the date fixed in such notification, the preliminary scheme or the final scheme, as the case may be, shall have effect as if it were enacted in this Act. 67 - Effect of preliminary scheme On the day on which the preliminary scheme comes into force- (a) all lands required by the appropriate authority shall, unless it is otherwise determined in such scheme, vest absolutely in the appropriate authority free from all encumbrances; (b) all rights in the original plots which have been re-constituted into final plots shall determine and the final plots shall become subject to the rights settled by the Town Planning Officer. 68 - Power of appropriate authority to evict summarily On and after the date on which a preliminary scheme comes into force, any person continuing to occupy any land which he is not entitled to occupy under the preliminary scheme shall, in accordance with the prescribed procedure, be summarily evicted by the appropriate authority.\" 13. Rules 26(1), 26(3) and 33 of the Rules read as under: \"26. Procedure to be followed by Town Planning Officer under section 51 and under sub-section (1) of section 52 - (1) For the purpose of preparing the preliminary scheme and final scheme the Town Planning Officer shall give notice in Form H of the date on which he will commence his duties and shall state the time, as provided in Rule 37 within which the owner of any property or right which is injuriously affected by the making of a Town Planning Scheme shall be entitled under section 82 to make a claim before him. Such notice shall be published in the Official Gazette and in one or more Gujarati newspapers circulated within the area of the appropriate authority and shall be pasted in prominent places at or near the areas comprised in the scheme and at the office of the Town Planning Officer. (3) The Town Planning Officer shall, before proceeding to deal with the matters specified in section 52, publish a notice in Form H in the Official Gazette and in one or more Gujarati newspapers circulating within the area of the appropriate authority. Such notice shall specify the matters which are proposed to be decided by the Town Planning Officer and State that all persons who are interested in the plots or are affected by any of the matters specified in the notice shall communicate in writing their objections to the Town Planning Officer within a period of twenty days from the publication of notice in the Official Gazette. Such notice shall also be posted at the officer of the Town Planning Officer and of the appropriate authority and the substance of such notice shall be pasted at convenient places in the said locality. 33. Procedure for eviction under Section 68. - (1) For eviction under section 68, the appropriate authority shall follow the following procedure, viz.: (a) The appropriate authority shall in the first instance serve a notice upon a person to be evicted requiring him, within such reasonable time as may be specified in the notice, to vacate the land. (b) If the person to be evicted fails to comply with the requirement of the notice, the appropriate authority shall depute any Officer or Servant to remove him. (c) If the person to be evicted resists or obstructs the officer or Servant deputed under clause (b) or if he re-occupies the land after eviction, the appropriate authority shall prosecute him under section 188 of the Indian Penal Code.\" 14. Before embarking upon the rival contentions, we may also notice that the provisions of the Bombay Town Planning Rules, 1955 (for short \"the Bombay Rules\") are in pari materia with `the Rules'. Rule 21 of the Bombay Rules provides for the Procedure to be followed by the Town Planning Officer. It makes it obligatory on the part of the officer to give notice of the date on which he will commence his duties and shall state therein the time, within which the owner of any property or rights which is injuriously affected by the making of the town planning scheme shall be advertised in one or more newspapers published in the regional language and circulating within the jurisdiction of the local authority and shall be posted in prominent places at or near the area comprised in the scheme and at the office of the Town Planning Officer. Sub-Rule (3) of Rule 21 of the Bombay Rules provides for serving of a Special notice of at least three clear days' upon the person interested in any plot or in any particular area comprised in the scheme, before the Town Planning Officer proceeds to deal in detail with the portion of the scheme relating thereto. Sub-Rule (4) makes it imperative upon the Town Planning Officer to \"give all persons affected by any particular (sic) of the scheme sufficient opportunity of stating their views and shall not give any decision till he has duly considered their representations, if any\". Sub-Rule (5) provides for recording a brief minute setting out the points at issue and the necessary particulars if during the proceedings, it appears to the Town Planning Officer that there are conflicting claims or any difference of opinion with regard to any part of the scheme. 15. Rules 26 of the Rules do not contemplate service of individual notice. It prescribes service of notice in Form H. A copy of the notice in the said Form is kept at the office of the Town Planning Officer during office hours. Any person affected by the proposal of the Town Planning Scheme is entitled to inspect the Scheme in the office where arrangements for explaining the scheme proposals are made. It furthermore provides that any person entitled to claim damages in terms of Section 82 of the Act should communicate the details of his claim to the Town Planning Officer. Section 81 of the Act enables the State to transfer of right from original to final plot or extinction of such right. A Town Planning Scheme, therefore, envisages calling for objection from the persons concerned for three purposes: (i) in regard to draft scheme; (ii) lodging of any claim for payment of compensation; (iii) participation in the matter of allotment of final plots. 16. We may, however, notice that Rule 21 of the Bombay Rules provides for notice under Sub-rule (3) thereof and a reasonable opportunity of hearing under Sub-Rule (5) thereof. Sub-rule (3) of Rule 21 of the Bombay Rules provides for issuance of a special notice upon the person interested in any plot or in any particular plot comprised in the Scheme. 17. We may also take notice of the decision of this Court in Mansukhlal Jadavji Darji (supra) wherein this Court opined that Sub-rule (3) of Rule 21 of the Bombay Rules was mandatory in nature, subject, of course, to the condition that on the crucial date, viz., when the Town Planning Scheme is notified in the official gazette, he, whether an owner or tenant or sub-tenant, must be in possession of the property. 18. In Jaswantsingh Mathurasingh (supra), it was reiterated that a tenant or a sub-tenant is a person interested and is entitled to notice. In that context, it was held: \"8. The question is whether the tenant or a sub- tenant is a person interested and is entitled to notice. It is obvious that under Section 105 of Transfer of Property Act, a lease creates right or an interest in enjoyment of the demised property and a tenant or a sub-tenant is entitled to remain in possession of the demised property until the lease is duly terminated and eviction takes place in accordance with law. Therefore, a tenant or a sub-tenant in possession of a tenement in the Town Planning Scheme is a person interested within the meaning of Rules 21(3) and (4) of the Rules. But he must be in possession of the property on the crucial date i.e. when the Town Planning Scheme is notified in the official Gazette. Every owner or tenant or a sub-tenant, in possession on that date alone shall be entitled to a notice and opportunity.\" 19. Rule 21(3), however, of the Bombay Rules has been amended in tune with Rule 26 of the Rules. Amended rules are in pari materia with Rule 26 of the Rules. 20. Appellant was a tenant in respect of plot No. 17/8. Plot No. 17/7 was not a plot contiguous thereto. They were separated not only by a road but also by various other plots. 21. It is also not in dispute that the appellant filed an objection in regard to the draft scheme but did not eventually pursue the same. The draft scheme was approved. 867 sq. m. of land had been acquired for public purpose out of the said plot No. 17/8. While the proceedings relating to allotment of final plot were in progress, he even did not file any objection thereto. If he intended to claim any interest in a portion of plot No. 17/8 either for the purpose of obtaining compensation for acquisition of a part of the land or to continue to have possession over 200 sq. m. of land in plot No. 17/8, it was obligatory on his part to take part in the proceedings. Whether irrespective of Rule 26 of the Rules which prescribes for issuance of a general public notice, any special notice upon the appellant was required to be served by the State or by the authority, in our opinion, cannot be gone into by us in these proceedings for the first time. Validity of Rule 26 of the Rules had never been questioned. It had also not been contended that the said Rule is ultra vires Section 52 of the Act. 22. A person interested in continuing to keep possession over a property and/ or a part of the amount of compensation must lay his claim before the appropriate authority at the appropriate stage. If in absence of any such claim filed by the appellant, the authorities have proceeded to finalise allotment of final plot in favour of the respondent Nos. 3 and 4 herein, it is too late in the day to contend that the entire scheme should be re-opened. We would consider the effect of Sub-section (3) of Section 65 of the Act a little later, but, we may at this juncture notice that the respondent No. 3 in whose favour plot No. 165 has been allotted which includes 200 sq. m. of land purported to be in possession of the appellant had nothing to do with the dispute between the appellant and his landlord the respondent no. 4. Respondent No. 4 was in possession of a contiguous plot. Respondent No. 4 was owner of both plot Nos. 17/7 and 17/8. He was, therefore, in his own right entitled to final allotment of some plot. 23. We would, however, assume that it was obligatory on the part of the State to serve a special notice upon the appellant. The question, however, would be : what would be the consequence of non-compliance thereof vis-`- vis the conduct of the appellant himself? 24. A person may waive a right either expressly or by necessary implication. He may in a given case disentitle himself from obtaining an equitable relief particularly when he allows a thing to come to an irreversible situation. 25. Different statutes provide for different manner of service of notice. The Bangalore Development Authority Act, 1976 provides that every person whose name appears in the assessment list or land revenue records shall be served with notice. [See Sureshchandra C. Mehta v. State of Karnataka and Others 1994 Supp (2) SCC 511] In West Bengal Housing Board etc. v. Brijendra Prasad Gupta and Others, etc. [AIR 1997 SC 2745], it was opined that the authority is not required to make a roaming enquiry as to who is the person entitled to notice. 26. We have referred to the said decisions only to show that the requirements in regard to the manner of service of notice varies from statute to statute and there exists a difference between the Bombay Rules and the Rules. 27. We are, however, not unmindful of the fact that a statute of town planning ex facie is not a statute for acquisition of a property. An owner of a plot is asked to part therewith only for providing for better facilities of which he would also be a beneficiary. Every step taken by the State does not involve application of the doctrine of eminent domain. In this case, the appellant did not oppose the draft scheme. It accepted that the State had a right to do so. Existence of a public purpose and increase in the valuation of the property was admitted. There exists a distinction in the action of the planning authority as regards vesting of a property in it and one so as to enable it to create a third party interest vis-`- vis for the purpose of re-allotment thereof. In the former case, the vesting of the land may be held to be an act of acquisition, whereas in the latter, it would be distribution of certain benefits having regard to the purpose sought to be achieved by a statute involving town planning. It was on that legal principle, this Court in State of Gujarat v. Shantilal Mangaldas & Ors. [1969 (3) SCR 341], opined that when a development is made, the owner of the property gets much more than what would have he got, if the same remained undeveloped in the process as by reason thereof he gets the benefit of living in a developed town having good town planning. 28. Section 67 of the Act provides that all lands required by the appropriate authority shall, unless it is otherwise determined in such scheme, vest absolutely in the appropriate authority free from all encumbrances with effect from the date on which the preliminary scheme comes into force. What would be the quantum of payment of compensation therefor is also provided in Section 82 of the Act. It is in the aforementioned situation, a claim is to be made before the authority whenever a notice in Form H is published. If a claim is not filed, the person, who is said to be injuriously affected, does so at its own peril. Had such a claim been filed, the authority before making final allotment could have considered the competing claims wherefor a large number of factors were required to be taken into consideration, viz., the location of the land, the area of the land, the nature of right, etc. 29. When a statute makes an elaborate provision as regards the formalities required to be undergone at every stage by the local authority, the State Government and other authorities concerned in preparing and making the final Town Planning Scheme, the same should be considered to be exhaustively. [See Maneklal Chhotalal & Ors. v. M.G. Makwana & Ors. [(1967) 3 SCR 65] In Maneklal Chhotalal (supra), it was held: \"49. Therefore, having due regard to the substantive and procedural aspects, we are satisfied that the Act imposes only reasonable restrictions, in which case, it is saved under Article 19(5) of the Constitution. The considerations referred to above will also show that the grievance of the petitioners that Article 14 is violated, is also not acceptable.\" [See also Bhikhubhai Vithlabhai Patel & Ors. v. State of Gujarat & Anr. 2008 (4) SCALE 278] 30. We are, however, not oblivious that in a given situation, a question may also arise as to whether the restrictions imposed by a statute are reasonable or not. 31. It is not a case where the State by its acts of omissions and commissions was unjustly enriching itself. It was a dispute between two private parties as regards the right to obtain final allotment; the principles underlying the same are not in dispute. What is in dispute is the distribution of quantum thereof between two competing claimants, viz., landlord and tenant. We do not mean to say that under no circumstances the appellant was entitled to allotment of a portion of the property or mandatory compensation in lieu thereof from the landlord. But, we intend to emphasise that he has lost his right to enforce the same in a public law forum. He has no enforceable claim against the State at this juncture. He may pursue his claim only against the respondent No. 4 in an appropriate proceedings wherein for certain purposes the State or the authorities may also be impleaded as a party. Even if he had a claim he would be deemed to have waived the same for the reasons stated hereinafter. 32. It is not in dispute that: (a) Appellant although filed an objection with regard to the draft scheme, did not choose to pursue it. (b) He did not file objections for re-allotment and did not participate in the proceedings following acquisition instituted by the authorities under the Act. In view of the above, the issue is whether it was open to him to assert his purported right to special notice in respect of the final allotment in the instant case given the fact that he did not pursue his objections to the draft scheme and subsequently did not object/participate during the proceedings for re-allotment. 33. It has been noticed by us hereinbefore that under Rule 26 of the Rules applicable in the instant case, as distinguished from the Bombay Rules (wherein special notice is required), no special notice is mandatorily required to be served. Assuming, however, that it was obligatory for the State to issue notice to the appellant, the question is whether the principle of waiver precludes him from claiming equitable relief in this case due to his earlier conduct which allowed the entire process of acquisition and allotment to become final. We are of the opinion that even if he had any such right, he waived the same. In Halsbury's Laws of England, Volume 16(2), 4th edition, para 907, it is stated: \"The expression `waiver' may, in law, bear different meanings. The primary meaning has been said to be the abandonment of a right in such a way that the other party is entitled to plead the abandonment by way of confession and avoidance if the right is thereafter asserted, and is either express or implied from conduct. It may arise from a party making an election, for example whether or not to exercise a contractual right... Waiver may also be by virtue of equitable or promissory estoppel; unlike waiver arising from an election, no question arises of any particular knowledge on the part of the person making the representation, and the estoppel may be suspensory only... Where the waiver is not express, it may be implied from conduct which is inconsistent with the continuance of the right, without the need for writing or for consideration moving from, or detriment to, the party who benefits by the waiver, but mere acts of indulgence will not amount to waiver; nor may a party benefit from the waiver unless he has altered his position in reliance on it\" As early as 1957, the concept of waiver was articulated in a case involving the late assertion of a claim regarding improper constitution of a Tribunal in Manak Lal v. Dr. Prem Chand [AIR 1957 SC 425] in the following terms: \"It is true that waiver cannot always and in every case be inferred merely from the failure of the party to take the objection. Waiver can be inferred only if and after it is shown that the party knew about the relevant facts and was aware of his right to take the objection. As Sir Johan Romilly M. R. has observed in Vyvyan v. Vyvyan [(1861) 30 Beav. 65, 74; 54 E.R. 813, 817] \"waiver or acquiescence, like election, presupposes that the person to be bound is fully cognizant of his rights, and, that being so, he neglects to enforce them, or chooses one benefit instead of another, either, but not both, of which he might claim\". In The Director of Inspection of Income Tax (Investigation), New Delhi and Another v. Pooran Mal & Sons and Another [(1975) 4 SCC 568] the issue was regarding waiver of benefits under a statute of limitation. It was stated: \"13. We may in this connection refer to the decision in Wilson v. McIntosh. In that case an applicant to bring lands under the Real Property Act filed his case in court under Section 21, more than three months after a caveat had been lodged, and thereafter obtained an order that the caveator should file her case, which she accordingly did. It was held that he had thereby waived his right to have the caveat set aside as lapsed under Section 23. The Privy Council held that the limitation of time contained in Section 23 was introduced for the benefit of the applicant, to enable him to obtain a speedy determination of his right to have the land brought under the provisions of the Act and that it was competent for the applicant to waive the limit of the three months, and that he did waive it by stating a case and applying for and obtaining an order upon the appellant to state her case both, which steps assumed and proceeded on the assumption of the continued existence of the caveat. They referred with approval to the decision in Phillips v. Martin where the Chief Justice said: \"Here there is abundant evidence of waiver, and it is quite clear that a man may by his conduct waive a provision of an Act of Parliament intended for his benefit. The caveator was not brought into Court in any way until the caveat had lapsed. And now the applicant, after all these proceedings have been taken by him, after doubtless much expense has been incurred on the part of the caveator, and after lying by and hoping to get a judgment of the Court in his favour, asks the Court to do that which but for some reasons known to himself he might have asked the Court to do before any other step in the proceedings had been taken. I think he is altogether too late. It is to my mind a clear principle of equity, and I have no doubt there are abundant authorities on the point, that equity will interfere to prevent the machinery of an Act of Parliament being used by a person to defeat equities which he has himself raised, and to get rid of a waiver created by his own acts.\" The legal principle emerging from these decisions is also stated in Craies on Statute Law (6th Edn.) at page 369 as follows: \"As a general rule, the conditions imposed by statutes which authorise legal proceedings are treated as being indispensable to giving the court jurisdiction. But if it appears that the statutory conditions were inserted by the legislature simply for the security or benefit of the parties to the action themselves, and that no public interests are involved, such conditions will not be considered as indispensable, and either party may waive them without affecting the jurisdiction of the court.\" [emphasis supplied] Applying the above principles to the present case, it must be held that the benefit of notice provided under the Act and Rules being for the benefit of the Appellant in which no public interests are involved, he has waived the same. 34. Significantly, a similar conclusion was reached in the case of Krishna Bahadur v. Purna Theatre [(2004) 8 SCC 229], though the principle was stated far more precisely, in the following terms: \"9. The principle of waiver although is akin to the principle of estoppel; the difference between the two, however, is that whereas estoppel is not a cause of action; it is a rule of evidence; waiver is contractual and may constitute a cause of action; it is an agreement between the parties and a party fully knowing of its rights has agreed not to assert a right for a consideration. 10. A right can be waived by the party for whose benefit certain requirements or conditions had been provided for by a statute subject to the condition that no public interest is involved therein. Whenever waiver is pleaded it is for the party pleading the same to show that an agreement waiving the right in consideration of some compromise came into being. Statutory right, however, may also be waived by his conduct.\" [Emphasis supplied] [See also Bank of India v. O.P. Swarnakar (2003) 2 SCC 721] 35. In Ramdev Food Products Pvt. Ltd. v. Arvindbhai Rambhai Patel and Ors. [2006 (8) SCALE 631], this Court observed: \"The matter may be considered from another angle. If the first respondent has expressly waived his right on the trade mark registered in the name of the appellant-Company, could he claim the said right indirectly? The answer to the said question must be rendered in the negative. It is well-settled that what cannot be done directly cannot be done indirectly. The term 'Waiver' has been described in the following words: \"Waiver is the abandonment of a right in such a way that the other party is entitled to plead the abandonment by way of confession and avoidance if the right is thereafter asserted, and is either express or implied from conduct. A person who is entitled to rely on a stipulation, existing for his benefit alone, in a contract or of a statutory provision may waive it, and allow the contract or transaction to proceed as though the stipulation or provision did not exist. Waiver of this kind depends upon consent, and the fact that the other party has acted upon it is sufficient consideration It seems that, in general, where one party has, by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, so as to alter his position, the party who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relationship as if no such promise or assurance had been made by him, but he must accept their legal relations subject to the qualification which he has himself so introduced, even though it is not supported in point of law by any consideration. [See 16 Halsbury's Laws (4th edn) para 1471] \" In this view of the matter, it may safely be stated that the appellant, through his conduct, has waived his right to an equitable remedy in the instant case. Such conduct precludes and operates as estoppel against him with respect to asserting a right over a portion of the acquired land in a situation where the scheme in question has attained finality following as a result of the appellant's inaction. 36. Mr. Lalit submits that his client is ready and willing to pay some reasonable amount to the respondent No. 3 in whose favour plot No. 165 has been finally allotted. Issuance of any such direction, in our opinion, is legally impermissible. 37. We, therefore, are of the opinion that in this case, no relief can be granted to the appellant. He may, however, take recourse to such remedy which is available with him in law including one by filing a suit or making a representation before the State. 38. For the reasons aforementioned, the appeal is dismissed. No costs. ...............................J. [S.B. Sinha] ................................J. [V.S. Sirpurkar] New Delhi; May 02, 2008", "spans": [{"start": 70, "end": 99, "label": "CASENO"}, {"start": 116, "end": 143, "label": "CASENO"}, {"start": 145, "end": 170, "label": "APP"}, {"start": 191, "end": 218, "label": "RESP"}, {"start": 347, "end": 394, "label": "STAT"}, {"start": 468, "end": 523, "label": "STAT"}, {"start": 625, "end": 635, "label": "DATE"}, {"start": 670, "end": 691, "label": "COURT"}, {"start": 708, "end": 746, "label": "CASENO"}, {"start": 789, "end": 799, "label": "DATE"}, {"start": 854, "end": 874, "label": "CASENO"}, {"start": 1135, "end": 1144, "label": "DATE"}, {"start": 2612, "end": 2622, "label": "DATE"}, {"start": 2713, "end": 2723, "label": "DATE"}, {"start": 3020, "end": 3041, "label": "RESP"}, {"start": 3047, "end": 3055, "label": "DATE"}, {"start": 3088, "end": 3109, "label": "RESP"}, {"start": 3193, "end": 3202, "label": "DATE"}, {"start": 3291, "end": 3346, "label": "STAT"}, {"start": 3439, "end": 3475, "label": "STAT"}, {"start": 3518, "end": 3565, "label": "STAT"}, {"start": 3745, "end": 3772, "label": "RESP"}, {"start": 3869, "end": 3924, "label": "STAT"}, {"start": 4153, "end": 4208, "label": "STAT"}, {"start": 4250, "end": 4267, "label": "STAT"}, {"start": 4309, "end": 4323, "label": "COURT"}, {"start": 4474, "end": 4495, "label": "COURT"}, {"start": 5253, "end": 5263, "label": "COURT"}, {"start": 5646, "end": 5656, "label": "COURT"}, {"start": 5775, "end": 5801, "label": "COURT"}, {"start": 7679, "end": 7689, "label": "COURT"}, {"start": 7701, "end": 7719, "label": "PREC"}, {"start": 7795, "end": 7805, "label": "COURT"}, {"start": 7869, "end": 7879, "label": "A.COUNSEL"}, {"start": 8292, "end": 8316, "label": "STAT"}, {"start": 8970, "end": 8975, "label": "A.COUNSEL"}, {"start": 9054, "end": 9154, "label": "PREC"}, {"start": 9159, "end": 9264, "label": "PREC"}, {"start": 9273, "end": 9290, "label": "R.COUNSEL"}, {"start": 15231, "end": 15248, "label": "STAT"}, {"start": 15346, "end": 15378, "label": "STAT"}, {"start": 15395, "end": 15407, "label": "COURT"}, {"start": 15463, "end": 15475, "label": "COURT"}, {"start": 16124, "end": 16136, "label": "COURT"}, {"start": 17967, "end": 17979, "label": "COURT"}, {"start": 18126, "end": 18138, "label": "COURT"}, {"start": 18332, "end": 18364, "label": "PREC"}, {"start": 18427, "end": 18439, "label": "COURT"}, {"start": 18693, "end": 18726, "label": "PREC"}, {"start": 19002, "end": 19026, "label": "STAT"}, {"start": 19735, "end": 19747, "label": "COURT"}, {"start": 19917, "end": 19930, "label": "CASENO"}, {"start": 22727, "end": 22768, "label": "STAT"}, {"start": 22896, "end": 22973, "label": "PREC"}, {"start": 22978, "end": 23070, "label": "PREC"}, {"start": 23387, "end": 23399, "label": "COURT"}, {"start": 24479, "end": 24544, "label": "PREC"}, {"start": 26007, "end": 26073, "label": "PREC"}, {"start": 26077, "end": 26103, "label": "PREC"}, {"start": 26485, "end": 26565, "label": "PREC"}, {"start": 28477, "end": 28489, "label": "COURT"}, {"start": 30267, "end": 30312, "label": "PREC"}, {"start": 30620, "end": 30639, "label": "JUDGE"}, {"start": 30656, "end": 30715, "label": "PREC"}, {"start": 30977, "end": 31104, "label": "PREC"}, {"start": 31250, "end": 31268, "label": "PREC"}, {"start": 31321, "end": 31338, "label": "STAT"}, {"start": 32234, "end": 32252, "label": "PREC"}, {"start": 32410, "end": 32420, "label": "AUTH"}, {"start": 33128, "end": 33138, "label": "AUTH"}, {"start": 34205, "end": 34256, "label": "PREC"}, {"start": 35171, "end": 35219, "label": "PREC"}, {"start": 35228, "end": 35316, "label": "PREC"}, {"start": 37471, "end": 37476, "label": "A.COUNSEL"}, {"start": 38069, "end": 38079, "label": "JUDGE"}, {"start": 38117, "end": 38131, "label": "JUDGE"}, {"start": 38144, "end": 38156, "label": "DATE"}]}
{"id": "90856652", "text": "REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION Civil Appeal No.2592 of 2022 (Arising out of Special Leave Petition (C) No.20047 of 2017) MRS. UMADEVI NAMBIAR ...APPELLANT(S) VERSUS THAMARASSERI ROMAN CATHOLIC DIOCESE REP BY ITS PROCURATOR DEVSSIA\u2019S SON REV. FATHER JOSEPH KAPPIL ...RESPONDENT(S) JUDGMENT V. Ramasubramanian 1. Their suit for partition having been decreed by the trial Court but reversed by the High Court in a regular first appeal, the plaintiffs have come up with the above appeal. Signature Not Verified 2. Digitally signed by Jayant Kumar Arora Date: 2022.04.02 We have heard Shri Dushyant A. Dave, learned senior counsel 12:06:46 IST Reason: for the appellant and Shri Thomas P. Joseph, learned counsel for the respondent. 3. The suit schedule property originally belonged to one Ullattukandiyil Sankunni. After his death, the property devolved upon his two daughters, one of whom is the appellant herein. The appellant herein executed a general Power of Attorney on 21.07.1971, registered as Document No.35 of 1971, in favour of her sister Smt. Ranee Sidhan. However, the said power was cancelled on 31.01.1985. But in the meantime, the appellant\u2019s sister was found to have executed four different documents in favour of certain third parties, assigning/releasing some properties. Therefore, the appellant first filed a suit in O.S.No.16 of 1986 followed by another suit in O.S.No.27 of 1988 against the assignees/releasees. Though a preliminary decree was passed in the second suit on 7.01.1989, the appellant came to know later that the assignees/releasees had sold the property to the respondent herein. 4. Therefore, the appellant filed yet another suit in O.S No.130 of 1989, seeking partition and separate possession of her half share in the suit property. The trial Court granted a preliminary decree in favour of the appellant. However, the regular appeal filed by the respondent herein was allowed by a Division Bench of the High Court by the judgment and decree impugned in this appeal. Therefore, the appellant has come up with the above appeal. 5. At the outset, it should be stated that the respondent herein did not dispute the fact that the suit schedule property originally belonged to the father of the appellant and her sister and that the appellant and her sister were entitled to equal shares in the property. But the respondent contested the suit on the grounds inter alia (i) that in view of two prior suits for partition, namely, O.S. No.16 of 1986 and O.S.No.27 of 1988, the suit was barred under Order II Rule 2 of CPC; (ii) that the general Power of Attorney executed by the appellant in favour of her sister, authorized the agent to sign all documents and present them for registration; (iii) that by virtue of the said power, the appellant\u2019s sister transferred the suit schedule properly to four persons, for the purpose of discharging the debts incurred in the family business; (iv) that those transferees, in turn, sold the property to the respondent herein for a valuable consideration; (v) that though the appellant was earlier residing in England, she came back to India and was staying in a house just 1 km. away from the plaint schedule property; (vi) that the appellant was therefore aware of all the transfers including the transfer in favour of the respondent and the development made by the respondent over the suit property; (vii) that, therefore, the appellant is guilty of acquiescence; and (viii) that the respondent has actually developed a commercial complex on the suit property and hence entitled at least to the value of improvements, in the event of a decree being passed. 6. The trial Court framed as many as 23 issues for consideration in the suit. The objection on the basis of Order II Rule 2 of CPC was rejected by the trial Court on the ground that the appellant\u2019s sister had committed a fraud and that the cause of action for the present suit was different from the cause of action for the previous suits. The contention that the appellant was guilty of acquiescence was rejected by the trial Court on a factual finding that the appellant was not aware of the transfer. On an examination of the recitals contained in the Power of Attorney, the trial Court came to the conclusion that the document did not confer any power to sell the property and that, therefore, the appellant\u2019s sister was not entitled to alienate the property. Since the original alienations made in 1981 and 1982 by the appellant\u2019s sister were null and void on account of lack of express power to sell, the subsequent sale made by those alienees in favour of the respondent herein was also held to be invalid. On the basis of these findings, the trial Court decreed the suit, as prayed for. 7. While reversing Judgment and decree of the trial Court, the High Court held: (i) that the failure of the appellant to seek the relief of setting aside the documents of transfer and/or recovery of possession of the property was fatal to her case; (ii) that though the principle behind Order II Rule 2 CPC may not be applicable to suits for partition, the appellant must be held to have had constructive notice of the alienations made by her sister, in view of Section 3 of the Transfer of Property Act, 1882 (hereinafter referred to as \u201cthe Act\u201d); (iii) that once constructive notice is attributed to the appellant, any relief for cancellation of the documents of alienation would have already become time barred, by the time the Power of Attorney was cancelled; (iv) that since the deed of general Power of Attorney filed as Exhibit A\u00ad1 did not contain any express power to sell the suit property, the transferee cannot be held to have exercised \u2018reasonable care\u2019 as required by the proviso to Section 41 of the Transfer of Property Act, 1882; and (v) that despite this fact, the appellant was not entitled to a decree for partition, in view of her failure to seek the cancellation of the alienations, in spite of having constructive notice of the alienations. 8. As could be seen from the judgments of the trial Court and the High Court, the deed of general Power of Attorney executed by the appellant in favour of her sister on 21.07.1971, did not specifically contain any power of sale. Therefore, the trial Court as well as the High Court held in no uncertain terms that the appellant\u2019s sister was not competent to sell the property to the predecessor\u00adin\u00ad interest of the respondent. However, the learned counsel appearing for the respondent argued, (i) that while construing a document, all punctuation marks should be given due weightage; (ii) that the deed of Power of Attorney was drafted by a doyen of the Bar; (iii) that Clause 22 of the deed of Power of Attorney conferred upon the agent, the power to execute and register all documents; (iv) that the power to execute a document and present the same for registration, should be understood to mean the power to execute documents requiring registration in the light of Section 49 of the Registration Act, 1908; and (v) that, therefore, a bonafide purchaser like the respondent should not be made to suffer. 9. But we do not agree with the above submissions of the learned counsel for the respondent. It remains a plain and simple fact that the deed of Power of Attorney executed by the appellant on 21.07.1971 in favour of her sister contained provisions empowering the agent: (i) to grant leases under Clause 15; (ii) to make borrowals if and when necessary with or without security, and to execute and if necessary, register all documents in connection therewith, under Clause 20; and (iii) to sign in her own name, documents for and on behalf of the appellant and present them for registration, under Clause 22. But there was no clause in the deed authorizing and empowering the agent to sell the property. The argument that the deed was drafted by a doyen of the Bar, is an argument not in favour of the respondent. This is for the reason that the draftsman has chosen to include, (i) an express power to lease out the property; and (ii) an express power to execute any document offering the property as security for any borrowal, but not an express power to sell the property. Therefore, the draftsman appears to have had clear instructions and he carried out those instructions faithfully. The power to sell is not to be inferred from a document of Power of Attorney. The trial Court as well as the High Court were ad idem on the finding that the document did not confer any power of sale. 10. In fact the High Court rejected even the refuge sought by the respondent under Section 41 of the Transfer of Property Act which reads as follows: \u201cTransfer by ostensible owner.\u00ad Where, with the consent, express or implied, of the persons interested in immoveable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorised to make it: Provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith.\u201d 11. The High Court has held and in our view rightly so, that if the respondent had exercised reasonable care as required by the proviso to Section 41, they could have easily found out that there was no power of sale. 12. Unfortunately after finding (i) that the Power of Attorney did not contain authorization to sell; and (ii) that the respondent cannot claim the benefit of Section 41 of the Act, the High Court fell into an error in attributing constructive notice to the appellant in terms of Section 3 of the Act. The relevant interpretation clause in Section 3 of the Act reads as follows: \u201cInterpretation Clause\u00ad xxxx xxx xxxx \u201ca person is said to have notice\" of a fact when he actually knows that fact, or when, but for wilful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it. Explanation I\u00adWhere any transaction relating to immoveable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration or, where the property is not all situated in one sub\u00addistrict, or where the registered instrument has been registered under sub\u00adsection (2) of section 30 of the Indian Registration Act, 1908 (16 of 1908), from the earliest date on which any memorandum of such registered instrument has been filed by any Sub\u00adRegistrar within whose sub\u00addistrict any part of the property which is being acquired, or of the property wherein a share or interest is being acquired, is situated: Provided that\u00ad\u00ad (1) the instrument has been registered and its registration completed in the manner prescribed by the Indian Registration Act, 1908 (16 of 1908) and the rules made thereunder, (2) the instrument or memorandum has been duly entered or filed, as the case may be, in books kept under section 51 of that Act, and (3) the particulars regarding the transaction to which the instrument relates have been correctly entered in the indexes kept under section 55 of that Act. Explanation II.\u00ad\u00adAny person acquiring any immoveable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof. Explanation III.\u00ad\u00adA person shall be deemed to have had notice of any fact if his agent acquires notice thereof whilst acting on his behalf in the course of business to which that fact is material: Provided that, if the agent fraudulently conceals the fact, the principal shall not be charged with notice thereof as against any person who was a party to or otherwise cognizant of the fraud.\u201d 13. Two things are important for the above interpretation clause to come into effect. They are: (i) wilful abstention from an enquiry or search; and (ii) gross negligence. Explanation I and Explanation II under the above interpretation clause are applicable to the person acquiring an immovable property, the transaction relating to which is required by law to be effected by a registered instrument. The High Court has turned the above interpretation clause upside down and held the Principal in relation to a deed of Power of Attorney, to have had constructive notice in terms of Section 3, of a sale effected by the agent. 14. The reasoning given by the High Court for holding that the appellant ought to have challenged the alienations, is that the appellant was out of possession. Here again, the High Court failed to appreciate that the possession of an agent under a deed of Power of Attorney is also the possession of the Principal and that any unauthorized sale made by the agent will not tantamount to the Principal parting with possession. 15. It is not always necessary for a plaintiff in a suit for partition to seek the cancellation of the alienations. There are several reasons behind this principle. One is that the alienees as well as the co\u00ad sharer are still entitled to sustain the alienation to the extent of the share of the co\u00adsharer. It may also be open to the alienee, in the final decree proceedings, to seek the allotment of the transferred property, to the share of the transferor, so that equities are worked out in a fair manner. Therefore, the High Court was wrong in putting against the appellant, her failure to challenge the alienations. 16. The learned counsel for respondent relied upon the decision of this Court in Delhi Development Authority vs. Durga Chand Kaushish1, in support of his argument about the rule of interpretation to be adopted while construing Exhibit A\u00ad1, the deed of general Power of Attorney. He also relied upon the Judgment of this Court in Syed Abdul Khader vs. Rami Reddy and Others2 for driving home the question as to how the deed of Power of Attorney should be construed. 17. We do not know how the ratio laid down in the aforesaid 1 (1973) 2 SCC 825 2 (1979) 2 SCC 601 decisions could be applied to the advantage of the respondent. As a matter of plain and simple fact, Exhibit A\u00ad1, deed of Power of Attorney did not contain a clause authorizing the agent to sell the property though it contained two express provisions, one for leasing out the property and another for executing necessary documents if a security had to be offered for any borrowal made by the agent. Therefore, by convoluted logic, punctuation marks cannot be made to convey a power of sale. Even the very decision relied upon by the learned counsel for the respondent, makes it clear that ordinarily a Power of Attorney is to be construed strictly by the Court. Neither Ramanatha Aiyar\u2019s Law Lexicon nor Section 49 of the Registration Act can amplify or magnify the clauses contained in the deed of Power of Attorney. 18. As held by this Court in Church of Christ Charitable Trust and Educational Charitable Society vs. Ponniamman Educational Trust3 the document should expressly authorize the agent, (i) to execute a sale deed; (ii) to present it for registration; and (iii) to admit execution before the Registering Authority. 3 (2012) 8 SCC 706 19. It is a fundamental principle of the law of transfer of property that \u201cno one can confer a better title than what he himself has\u201d (Nemo dat quod non habet). The appellant\u2019s sister did not have the power to sell the property to the vendors of the respondent. Therefore, the vendors of the respondent could not have derived any valid title to the property. If the vendors of the respondent themselves did not have any title, they had nothing to convey to the respondent, except perhaps the litigation. 20. Therefore, the appeal is allowed, the impugned judgment of the High Court is set aside and the Judgment and preliminary decree passed by the trial Court are restored. There will be no order as to costs. \u2026..\u2026\u2026\u2026\u2026....................J. (Hemant Gupta) .\u2026..\u2026\u2026\u2026......................J (V. Ramasubramanian) APRIL 1, 2022 NEW DELHI.", "spans": [{"start": 18, "end": 40, "label": "COURT"}, {"start": 70, "end": 98, "label": "CASENO"}, {"start": 115, "end": 158, "label": "CASENO"}, {"start": 165, "end": 180, "label": "APP"}, {"start": 288, "end": 301, "label": "RESP"}, {"start": 328, "end": 346, "label": "JUDGE"}, {"start": 434, "end": 444, "label": "COURT"}, {"start": 594, "end": 604, "label": "DATE"}, {"start": 624, "end": 640, "label": "A.COUNSEL"}, {"start": 713, "end": 729, "label": "R.COUNSEL"}, {"start": 1011, "end": 1021, "label": "DATE"}, {"start": 1145, "end": 1155, "label": "DATE"}, {"start": 1373, "end": 1390, "label": "CASENO"}, {"start": 1419, "end": 1436, "label": "CASENO"}, {"start": 1531, "end": 1540, "label": "DATE"}, {"start": 1706, "end": 1724, "label": "CASENO"}, {"start": 1979, "end": 1989, "label": "COURT"}, {"start": 2498, "end": 2516, "label": "CASENO"}, {"start": 2521, "end": 2538, "label": "CASENO"}, {"start": 2585, "end": 2588, "label": "STAT"}, {"start": 3794, "end": 3797, "label": "STAT"}, {"start": 4825, "end": 4835, "label": "COURT"}, {"start": 5065, "end": 5068, "label": "STAT"}, {"start": 5241, "end": 5271, "label": "STAT"}, {"start": 5777, "end": 5807, "label": "STAT"}, {"start": 6092, "end": 6102, "label": "COURT"}, {"start": 6195, "end": 6205, "label": "DATE"}, {"start": 6297, "end": 6307, "label": "COURT"}, {"start": 7012, "end": 7034, "label": "STAT"}, {"start": 7324, "end": 7334, "label": "DATE"}, {"start": 8430, "end": 8440, "label": "COURT"}, {"start": 8537, "end": 8547, "label": "COURT"}, {"start": 9148, "end": 9158, "label": "COURT"}, {"start": 9543, "end": 9553, "label": "COURT"}, {"start": 10472, "end": 10494, "label": "STAT"}, {"start": 10902, "end": 10924, "label": "STAT"}, {"start": 12285, "end": 12295, "label": "COURT"}, {"start": 12537, "end": 12547, "label": "COURT"}, {"start": 12682, "end": 12692, "label": "COURT"}, {"start": 13454, "end": 13464, "label": "COURT"}, {"start": 13632, "end": 13684, "label": "PREC"}, {"start": 13880, "end": 13923, "label": "PREC"}, {"start": 14087, "end": 14113, "label": "CASENO"}, {"start": 14961, "end": 15062, "label": "PREC"}, {"start": 15833, "end": 15843, "label": "COURT"}, {"start": 16004, "end": 16016, "label": "JUDGE"}, {"start": 16050, "end": 16068, "label": "JUDGE"}, {"start": 16070, "end": 16083, "label": "DATE"}]}