Air (2110 2584)

AIR 2008 SUPREME COURT 1702 "K. L. E. Society v.
Siddalingesh"
(From : Karnataka)*
Coram : 2 Dr. A. PASAYAT AND AFTAB ALAM, JJ.
Criminal Appeal No. 427 of 2008 (arising out of SLP (Cri.) No. 63 of 2007), D/- 3 -3
-2008.
K. L. E. Society and Ors. v. Siddalingesh.
(A) Criminal P.C. (2 of 1974), S.482 - INHERENT POWERS - Inherent powers -
Exercise of - To be cautions and careful - Court not to function as Court of appeal or of
revision. (Para 8)
(B) Criminal P.C. (2 of 1974), S.482 - COMPLAINT - MISAPPROPRIATION -
BREACH OF TRUST - CHEATING - INDUSTRIAL DISPUTE - SALARIES -
Quashing of complaint - Complaint by peon of College u/S.403, u/S.405, u/S.415 IPC -
Allegation that College society had deducted certain amount from his pay on pretext of
returning it at time of leaving job - Peon also filing petition u/S.33-C of I. D. Act for
salary on ground that lesser amounts were paid and signatures for higher amounts were
taken - No mention made about any deductions - Facts clearly show that peon in his
complaint has tried to make out a case that deduction was made with an object -
Ingredients of S.403, S.405 and S.415 IPC do not exist in complaint - Complaint liable to
be quashed.
Cri. Petn. No. 2795 of 2006, D/-04-12-2006 (Kant), Reversed. (Paras 7, 12)
Cases Referred : Chronological Paras
2004 AIR SCW 6185 : AIR 2005 SC 9 : 2005 Cri LJ 92 (Ref.) 11
(1997) 2 SCC 397 (Ref.) 11
1996 AIR SCW 1229 : AIR 1996 SC 2983 : 1996 Cri LJ 1878 : 1996 All LJ 601 (Ref.)
11
1995 AIR SCW 4100 : AIR 1996 SC 309 (Ref.) 11
AIR 1992 SC 604 : 1992 Cri LJ 527 (Rel. on) 10
AIR 1990 SC 494 (Ref.) 11
AIR 1964 SC 1 : 1964 (1) Cri LJ 1 (Ref.) 11
AIR 1960 SC 866 (Rel. on) 9
Basava Prabhu S. Patil, V. N. Raghupathy, B. Subrahmanya Prasad, Narayan P. Kengasur,
for Appellants; Ms. Kiran Suri, for Respondent.
* Cri. Petn. No. 2795 of 2006, D/- 4-12-2006 (Kant).
Judgement
1. Dr. ARIJIT PASAYAT, J. :-Leave granted.
2. Challenge in this appeal is to the order passed by the learned Single Judge of the
Karnataka High Court dismissing the application filed before it in terms of Section 482 of
the Code of Criminal Procedure, 1973 (in short 'Cr.P.C.'). Prayer in the application before
the High Court was for quashing the proceedings in C.C.No.273/2006 including the
complaint on the file of learned Judicial Magistrate First Class, Gulbarga.
3. Background facts in a nutshell are as under :
Respondent was appointed as a Peon in K.L.E. Society's Women Arts and Commerce
College in the year 1992 of which the appellant No. 3 was the Principal at the relevant
point of time. Appellant No. 2 was the Secretary at the relevant point of time and the
Society was represented by its Chairman, Board of Management. He resigned from
service on 17-12-2003. The complaint was filed on 13-1-2006 alleging commission of
offence punishable under Sections 403, 405 and 415 read with Section 34 of the Indian
Penal Code, 1860 (in short 'IPC'). The learned Judicial Magistrate took cognizance and
issued process. The same was questioned by the appellants. The stand before the High
Court was that the complaint was misconceived, no offence was made out even on
indepth scrutiny of the complaint. In fact, the respondent had filed petition in terms of
Section 33 (C) (2) of the Industrial Disputes Act, 1947 (in short 'ID' Act) and also filed
writ petition claiming parity in salary which was disposed of by giving the direction to
consider the respondents' case. In
@page-SC1703
the petition in terms of Section 33-(C)(2) of the ID Act the respondent had stated that
lesser amounts were paid and signatures for higher amounts were taken. The said petition
is pending. In the writ petition before the High Court there was no mention about any
deduction. It is stated in the complaint that the complainant was given to understand that
certain amounts were being deducted for repayment at the time of retirement or cessation
of his job. In the notice issued on 23-11-2004, there is no mention about this aspect. It
was, therefore, submitted that the complaint was nothing but an abuse of process of law.
4. The complainant-respondent resisted the stand by stating that the offences are clearly
spelt out.
5. The High Court dismissed the petition holding as follows :
"The respondent lodged a private complaint against the petitioner on 13-1-2006 along
with six supporting documents. After perusing the complaint, the documents and the
sworn statement of the respondent, process is issued against the petitioners for the
aforesaid offences. This petition is filed for quashing the proceedings."
6. Learned counsel for the appellants reiterated the stand taken before the High Court. On
the other hand, respondent also reiterated the stand taken before the High Court.
7. One thing is clear on reading of High Court's reasoning that the High Court came to
the conclusion that deductions were made without any rhyme and reason and without any
basis. That was not the case of the complainant. On the other hand, it tried to make out a
case that the deduction was made with an object. That obviously, was the foundation to
substantiate claim of entrustment. On a close reading of the complaint it is clear that the
ingredients of Sections 403, 405 and 415 do not exist. The statement made in the
complaint runs contrary to the averments made in the petition in terms of Section 33-(C)
(2).
8. Exercise of power under Section 482 of the Code in a case of this nature is the
exception and not the rule. The Section does not confer any new powers on the High
Court. It only saves the inherent power which the Court possessed before the enactment
of the Code. It envisages three circumstances under which the inherent jurisdiction may
be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of
the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible
nor desirable to lay down any inflexible rule which would govern the exercise of inherent
jurisdiction. No legislative enactment dealing with procedure can provide for all cases
that may possibly arise. Courts, therefore, have inherent powers apart from express
provisions of law which are necessary for proper discharge of functions and duties
imposed upon them by law. That is the doctrine which finds expression in the section
which merely recognizes and preserves inherent powers of the High Courts. All courts,
whether civil or criminal possess, in the absence of any express provision, as inherent in
their constitution, all such powers as are necessary to do the right and to undo a wrong in
course of administration of justice on the principle "quando lex aliquid alicui concedit,
concedere videtur et id sine quo res ipsae esse non potest" (when the law gives a person
anything it gives him that without which it cannot exist). While exercising powers under
the section, the court does not function as a court of appeal or revision. Inherent
jurisdiction under the section though wide has to be exercised sparingly, carefully and
with caution and only when such exercise is justified by the tests specifically laid down
in the section itself. It is to be exercised ex debito justitiae to do real and substantial
justice for the administration of which alone courts exist. Authority of the court exists for
advancement of justice and if any attempt is made to abuse that authority so as to produce
injustice, the court has power to prevent abuse. It would be an abuse of process of the
court to allow any action which would result in injustice and prevent promotion of
justice. In exercise of the powers court would be justified to quash any proceeding if it
finds that initiation/continuance of it amounts to abuse of the process of court or quashing
of these proceedings would otherwise serve the ends of justice. When no offence is
disclosed by the complaint, the court may examine the question of fact. When a
complaint is sought to be quashed, it is permissible to look into the materials to assess
what the complainant has alleged and whether any offence is made out even if the
allegations are accepted in toto.
9. In R. P. Kapur v. State of Punjab (AIR
@page-SC1704
1960 SC 866) this Court summarized some categories of cases where inherent power can
and should be exercised to quash the proceedings.
(i) where it manifestly appears that there is a legal bar against the institution or
continuance e.g. want of sanction;
(ii) where the allegations in the first information report or complaint taken at its face
value and accepted in their entirely do not constitute the offence alleged;
(iii) where the allegations constitute an offence, but there is no legal evidence adduced or
the evidence adduced clearly or manifestly fails to prove the charge.
10
. In dealing with the last case, it is important to bear in mind the distinction between a
case where there is no legal evidence or where there is evidence which is clearly
inconsistent with the accusations made, and a case where there is legal evidence which,
on appreciation, may or may not support the accusations. When exercising jurisdiction
under Section 482 of the Code, the High Court would not ordinarily embark upon an
enquiry whether the evidence in question is reliable or not or whether on a reasonable
appreciation of it accusation would not be sustained. That is the function of the trial
Judge. Judicial process should not be an instrument of oppression, or, needless
harassment. Court should be circumspect and judicious in exercising discretion and
should take all relevant facts and circumstances into consideration before issuing process,
lest it would be an instrument in the hands of a private complainant to unleash vendetta to
harass any person needlessly. At the same time the section is not an instrument handed
over to an accused to short-circuit a prosecution and bring about its sudden death. The
scope of exercise of power under Section 482 of the Code and the categories of cases
where the High Court may exercise its power under it relating to cognizable offences to
prevent abuse of process of any court or otherwise to secure the ends of justice were set
out in some detail by this Court in State of Haryana v. Bhajan Lal (1992 Supp (1) 335). A
note of caution was, however, added that the power should be exercised sparingly and
that too in rarest of rare cases. The illustrative categories indicated by this Court are as
follows : "(1) Where the allegations made in the first information report or the complaint,
even if they are taken at their face value and accepted in their entirety do not prima facie
constitute any offence or make out a case against the accused. AIR 1992 SC 604
(2) Where the allegations in the first information report and other materials, if any,
accompanying the FIR do not disclose a cognizable offence, justifying an investigation
by police officers under Section 156(1) of the Code except under an order of a Magistrate
within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence
collected in support of the same do not disclose the commission of any offence and make
out a case against the accused.
(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute
only a non-cognizable offence, no investigation is permitted by a police officer without
an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently
improbable on the basis of which no prudent person can ever reach a just conclusion that
there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or
the Act concerned (under which a criminal proceeding is instituted) to the institution and
continuance of the proceedings and/or where there is a specific provision in the Code or
Act concerned, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the
proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on
the accused and with a view to spite him due to private and personal grudge."
11
. As noted above, the powers possessed by the High Court under Section 482 of the Code
are very wide and the very plentitude of the power requires great caution in its exercise.
Court must be careful to see that its decision in exercise of this power is based on sound
principles. The inherent power should not be exercised to stifle a legitimate prosecution.
The High Court being the highest court of a State should normally refrain from giving a
prima facie decision in 1993 AIR SCW 248
AIR 1990 SC 494
1991 AIR SCW 1034
1995 AIR SCW 4100
1999 AIR SCW 679
1996 AIR SCW 1229
1999 AIR SCW 3607
1999 AIR SCW 881
2002 AIR SCW 286
2004 AIR SCW 6185
@page-SC1705
a case where the entire facts are incomplete and hazy, more so when the evidence has not
been collected and produced before the Court and the issues involved, whether factual or
legal, are of magnitude and cannot be seen in their true perspective without sufficient
material. Of course, no hard-and-fast rule can be laid down in regard to cases in which
the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at
any stage. (See: Janata Dal v. H. S. Chowdhary (1992 (4) SCC 305), and Raghubir Saran
(Dr.) v. State of Bihar (AIR 1964 SC 1). It would not be proper for the High Court to
analyse the case of the complainant in the light of all probabilities in order to determine
whether a conviction would be sustainable and on such premises arrive at a conclusion
that the proceedings are to be quashed. It would be erroneous to assess the material
before it and conclude that the complaint cannot be proceeded with. In a proceeding
instituted on complaint, exercise of the inherent powers to quash the proceedings is called
for only in a case where the complaint does not disclose any offence or is frivolous,
vexatious or oppressive. If the allegations set out in the complaint do not constitute the
offence of which cognizance has been taken by the Magistrate, it is open to the High
Court to quash the same in exercise of the inherent powers under Section 482 of the
Code. It is not, however, necessary that there should be meticulous analysis of the case
before the trial to find out whether the case would end in conviction or acquittal. The
complaint has to be read as a whole. If it appears that on consideration of the allegations
in the light of the statement made on oath of the complainant that the ingredients of the
offence or offences are disclosed and there is no material to show that the complaint is
mala fide, frivolous or vexatious, in that event there would be no justification for
interference by the High Court. When an information is lodged at the police station and
an offence is registered, then the mala fides of the informant would be of secondary
importance. It is the material collected during the investigation and evidence led in court
which decides the fate of the accused person. The allegations of mala fides against the
informant are of no consequence and cannot by themselves be the basis for quashing the
proceedings. (See: Dhanalakshmi v. R. Prasanna Kumar (1990 Supp SCC 686), State of
Bihar v. P. P. Sharma (AIR 1996 SC 309), Rupan Deol Bajaj v. Kanwar Pal Singh Gill
(1995 (6) SCC 194), State of Kerala v. O. C. Kuttan (AIR 1999 SC 1044), State of U.P. v.
O. P. Sharma (1996 (7) SCC 705), Rashmi Kumar v. Mahesh Kumar Bhada (1997 (2)
SCC 397), Satvinder Kaur v. State (Govt. of NCT of Delhi) (AIR 1996 SC 2983) and
Rajesh Bajaj v. State NCT of Delhi (1999 (3) SCC 259, State of Karnatakav. M.
Devendrappa and Another (2002 (3) SCC 89) and Zandu Pharmaceutical Works Ltd. v.
Mohd. Sharaful Haque and Anr. (2005 (1) SCC 122).
12. When the factual scenario is examined in the background of the legal principles set
out above, the inevitable conclusion is that the complaint was nothing but an abuse of the
process of law. We, therefore, allow this appeal and set aside the proceedings in
C.C.No.273/2006 pending before learned Judicial Magistrate First Class, Gulbarga.
13. We make it clear that we have not expressed any opinion on the merits so far as the
petition under Section 33-(C)(2) of the ID Act is concerned, which is stated to be
pending.
Appeal allowed.
AIR 2008 SUPREME COURT 1705 "State of Maharashtra v. Bhaurao Punjabrao
Gawande"
(From : Bombay)*
Coram : 2 C. K. THAKKER AND ALTAMAS KABIR, JJ.
-2008.
State of Maharashtra and Ors. v. Bhaurao Punjabrao Gawande.
(A) Constitution of India, Art.226 - WRITS - PREVENTIVE DETENTION - Powers of
Court - Preventive detention - Setting aside of order at pre-execntion stage - Not
permissible.
2007 (2) AIR Bom R (NOC) 255, Reversed.
An order of detention passed by a Detaining Authority under the relevant 'preventive
@page-SC1706
detention' law cannot be set aside by a Writ Court at the pre-execution or pre-arrest stage
unless the Court is satisfied that there are exceptional circumstances specified in 1992
Supp (1) SCC 496. The Court must be conscious and mindful of the fact that this is a
'suspicious jurisdiction' i.e. jurisdiction based on suspicion and an action is taken 'with a
view to preventing' a person from acting in any manner prejudicial to certain activities
enumerated in the relevant detention law. Interference by a Court of Law at that stage
must be an exception rather than a rule and such an exercise can be undertaken by a Writ
Court with extreme care, caution and circumspection. A detenu cannot ordinarily seek a
writ of mandamus if he does not surrender and is not served with an order of detention
and the grounds in support of such order. The instant case does not fall within the
category of exceptional cases and therefore setting aside the order of detention by the
High Court at the pre-execution and pre-arrest stage would therefore, liable to be set
aside.
2007 (2) AIR Bom R (NOC) 255, Reversed. (Paras 16, 58, 59)
Normally and as a general rule, an order of detention can be challenged by the detenu
after such order as also the grounds of detention have been received by him and the order
is executed. In exceptional cases, however, a High Court or Supreme Court may exercise
extraordinary powers to protect a person against an illegal invasion of his right to
freedom by protecting him while still he is free by issuing an appropriate writ, direction
or order including a writ in the nature of mandamus questioning an order of detention and
restraining the authorities from interfereing with the right of liberty of an individual
against whom such order is made. (Para 36)
The record shows that many cases had been filed earlier against the detenu under the
Essential Commodities Act, 1955. The writ petitioner was indulging in illegal activities of
black marketing of kerosene, which was an essential commodity. Those cases had been
registered in 2002, 2003, 2005 and 2006. Thus, the action was taken on the basis of past
conduct of the detenu having reasonable prognosis of future behaviour and there was 'live
link' between the activities of the detenu and the action of preventive detention to reach
subjective satisfaction by the Detaining authority. It has come on record that the detenu
was called upon to execute a bond for good behaviour under Ss. 110 nd 111 of the Code
of Criminal Procedure, 1973. It is, therefore, clear that the authorities had taken steps
under the relevant law. But even otherwise, such questions may become relevant and can
be considered after the order of detention is executed. Similarly, if the detenu was
illtreated when he was in custody in connection with any case registered against him
under the 1955 Act, or there was custodial violence, it would not affect detention of the
writ petitioner. Whether there was such custodial violence and whether police officers
had abused their position can indeed be gone into by a competent authority or by a Court
of Law. That circumstance, however, will not make the order of detention invalid or for a
'wrong purpose'. Externment proceedings initiated against the detenu under S. 59 of the
Bombay Police Act, 1951 also would not make the action assailable. Therefore, this was
not a case in which interference was warranted at pre-execution stage. It cannot also be
said that two parallel and simultaneous proceedings were not permissible in law. (Paras
43, 44, 46, 49)
(B) Prevention of Black Marketing and Maintenance of Supplies of Essential
Commodities Act (7 of 1980), S.3 - ESSENTIAL COMMODITIES - PREVENTIVE
DETENTION - POLICE OFFICERS - Preventive detention - Powers of detaining
authority, Commissioner of Police - Detenu had made allegations of custodial violence by
police authorities while he was in custody in earlier case - Enquiry - Detaining authority
need not wait for directing his detention till inquiry was conducted and report submitted -
It cannot also be said that two parallel and simultaneous proceedings were not
permissible in law. (Paras 44, 46)
(1999) 2 AC 38 : (1997) 1 WLR 503 18
1994 AIR SCW 2652 : AIR 1994 SC 2179 (Ref.) 17
1994 AIR SCW 4975 (Ref.) 50
@page-SC1707
(1992) 3 SCC 512 (Ref.) 51

1992 Supp (1) SCC 496 (Ref.) 9, 15, 38, 42, 50, 51, 55, 58
(1990)1 SCC 328 (Ref.) 37
AIR 1987 Guj 253 : 1988 Cri LJ 685 (FB) 37
AIR 1982 SC 710 : 1982 Cri LJ 340 (Ref.) 17, 30
AIR 1982 SC 1143 : 1982 Cri LJ 1191 (Ref.) 29
1981 Cri LJ 767 (Bom) 37
AIR 1979 SC 541 : 1979 Cri LJ 462 (Ref.) 29
AIR 1976 SC 1207 : 1976 Cri LJ 945 (Ref.) 30
AIR 1975 SC 550 : 1975 Cri LJ 446 (Ref.) 28
AIR 1974 SC 806 : 1974 Cri LJ 690 (Ref.) 30
AIR 1974 SC 816 : 1974 Cri LJ 699 (Ref.) 47
AIR 1974 SC 1161 : 1974 Cri LJ 817 (Ref.) 46, 47
AIR 1974 SC 2154 : 1974 Cri LJ 1479 (Ref.) 27
AIR 1973 SC 770 : 1973 Cri LJ 590 (Ref.) 47
AIR 1972 SC 1660 (Ref.) 30
AIR 1972 SC 2256 : 1973 Lab IC 486 (Ref.) 47
AIR 1972 SC 2561 (Ref.) 47
(1971) 1 SCR 690 (Ref.) 25
AIR 1966 SC 1441 : 1966 Cri LJ 1076 (Ref.) 52
AIR 1959 SC 725 (Ref.) 37
AIR 1952 SC 196 (Ref.) 28
1942 AC 284 : (1941)3 All ER 388 24
(1927) 3 St Tr 1 22
(1923) 2 KB 361 : 1923 AC 603 21
1917 AC 260 : 86 LJKB 111928
(1890) 15 AC 506 : 60 LJQB 89 20
Manish Pitale, Ravindra Keshavrao Adsure, for Appellants; J.M. Gandhi, Satyajit A.
Desai, Mrs. Anagha S. Desai, Amol N. Suryawanshi, Venkateswara Rao Anumolu, for
Respondent.
* Cri. W. P. No. 372 of 2006, D/- 7-10-2006, reported in 2007 (2) AIR Bom R (NOC) 255
: 2007 All MR (Cri) 152.
Judgement
1. C. K. THAKKER, J. - Leave granted.
2. The present appeal is filed by the State of Maharashtra and others against the sole
respondent (original petitioner) against the judgment and order passed by the High Court
of Judicature at Bombay (Nagpur Bench) on October 17, 2006 in Writ Petition No. 372 of
2006. By the impugned order, the High Court (partly) allowed the petition filed by the
detenu-writ petitioner and set aside the order of detention dated July 27, 2006 passed by
the Commissioner of Police, (Nagpur City) under the Prevention of Black Marketing and
Maintenance of Supplies of Essential Commodities Act, 1980.
FACTUAL MATRIX
3. The case of the appellants is that one Bhaurao Punjabrao Gawande (detenu) was
running a business of transportation of petroleum products and had fleet of tankers for
carrying on the said occupation. He was indulging in illegal purchase and sale of blue
kerosene oil in black market since last five to six years. Certain cases were also registered
against the said Bhaurao under the Essential Commodities Act, 1955 (hereinafter referred
to as '1955 Act'). In view of continuous activities of Bhaurao in black-marketing of
essential commodity (Kerosene), the Commissioner of Police (appellant No.2 herein), in
exercise of power conferred on him by sub-section (1) read with Clause (b) of sub-section
(2) of the Prevention of Black Marketing and Maintenance of Supplies of Essential
Commodities Act, 1980 (hereinafter referred to as 'the Act') directed that the said Bhaurao
be detained. Grounds of detention were sought to be served to the detenu on the same
day.
4. According to the appellants, in accordance with sub-section (3) of Section 3 of the Act,
the order of detention passed by the Commissioner of Police was approved by the State
Government. The detenu somehow came to know about the order of detention being
passed against him and absconded himself. He, therefore, could not be detained, nor
served with the order or grounds of detention in support of the order.
WRIT PETITION
5. The detenu, without submitting to the order of detention and surrendering, filed Writ
Petition No. 372 of 2006 in the High Court of Bombay (Nagpur Bench) for an
appropriate writ, direction or order quashing and setting aside the order of detention dated
July 27, 2006 being illegal, unwarranted and vitiated by mala fide. Other reliefs were also
sought.
COUNTER AFFIDAVIT
6. An affidavit in reply was filed by the Detaining Authority, inter alia, contending that
the petition filed by the detenu was not maintainable at law. The detenu got the
information about the order of detention, absconded himself and the order of detention
@page-SC1708
could not be served upon him. The order was, therefore, affixed at a conspicuous place at
the residence of the detenu on July 30, 2006 and a panchanama was drawn by the Police
Inspector of Sakkardara Police Station, Nagpur. Since the detenu was not available,
grounds of detention along with relevant documents also could not be served upon him. It
was stated that the order of detention was approved by the State Government. Moreover,
the entire proceedings of detention were submitted to the Advisory Board constituted
under Section 10 of the Act as required by law. The Government decided the period of
detention only after the opinion of the Advisory Board under Section 12 of the Act.
7. On merits, it was contended on behalf of the Detaining Authority that the detenu was
indulging in black marketing of kerosene oil which was an 'essential commodity' and
several cases had been registered against him. It was also stated that the detenu had
executed a bond under the Code of Criminal Procedure, 1973 for good behaviour. In spite
of all these steps, the detenu continued to indulge in black marketing activities of
essential commodity and the Detaining Authority was satisfied that "with a view to
preventing him from acting in any manner prejudicial to the maintenance of supplies of
essential commodities to the community", it was necessary to detain him and accordingly
the order was passed. It was, therefore, submitted that the petition was liable to be
dismissed, particularly when the detenu absconded and the order of detention along with
grounds of detention and other documents could not be personally served and could not
be executed.
HIGH COURT JUDGMENT
8. The High Court, by the impugned order, held that the detenu was not entitled to know
the grounds on which the order of detention had been passed, unless he surrendered. The
Court, however, proceeded to state that it perused the grounds of detention with a view to
satisfy itself about the legality of the order of detention. The Court noted that the
authorities made the record available to the Court and the Court had 'carefully' examined
it. The Court then concluded;
"We find that the present petition can be entertained at pre-execution stage".
9. The High Court considered the relevant provisions of the Act as also the Maharashtra
Kerosene Dealers' Licensing Order, 1966 and the Kerosene (Restriction on Use and
Fixation of Ceiling Price) Order, 1993. It observed that if the cases instituted against the
detenu were taken into consideration by the Detaining Authority, it could not be said that
the Detaining Authority could not have reached 'subjective satisfaction' on that basis and
as such the order could not be challenged. The High Court also conceded that normally, a
Court would not interfere with the order of detention at pre-execution stage. It, however,
held that the present case was covered by one of the exceptions laid down in Addl.
Secretary to the Government of India and Ors. v. Smt. Alka Subhash Gadia and Anr.,
1992 Supp (1) SCC 496 and hence the petition was maintainable and the detenu was
entitled to relief. The High Court accordingly set aside the order of detention. The
legality of said order is questioned by the Authorities in the present appeal.
PREVIOUS ORDERS
10. On February 12, 2007, when the matter was placed for admission hearing, notice was
issued and was made returnable within three weeks. On August 13, 2007, four weeks
time was sought by the detenu for filing counter affidavit. The Court, however, passed the
following order;
"The matter relates to grant of relief by the High Court under Article 226 of the
Constitution at pre-arrest stage. This Court had issued notice on February 12, 2007.
On the facts and in the circumstances of the case, in our opinion, we should not grant four
weeks' time as prayed for. Two weeks' time is granted, as a last chance, for filing counter
affidavit.
List thereafter".
11. Affidavit-in-reply was thereafter filed. On December 13, 2007, the Registry was
directed to list the matter for final hearing in the first week of February, 2008 on a non-
miscellaneous day and that is how the matter is before us.
12. We have heard learned counsel for the parties.
APPELLANTS' SUBMISSIONS
13. The learned counsel for the appellants strenuously contended that the High Court was
wholly in error in exercising jurisdiction under Article 226 of the Constitutuion
@page-SC1709
against an order of detention at a pre-execution stage. It was submitted that the
preliminary objection raised by the Detaining Authority was well founded that the High
Court should not have entertained the writ petition and set aside the order of detention
before the order could be executed against the detenu. It was also submitted that an
important factor which ought to have been taken into consideration by the High Court
that the order could not be served upon the detenu, was a material factor. The detenu
absconded himself and successfully avoided service of order of detention, grounds of
detention and relevant documents in support of the order. The authorities were, therefore,
constrained to affix the order at a conspicuous place of residence of the detenu. The said
factor was crucial and the High Court should have refused to exercise jurisdiction in
favour of the detenu.
14. On merits, it was contended that several cases had been instituted against the detenu
under the 1955 Act and consistent conduct of the detenu revealed that he continued to
indulge in black marketing activities. If it is so, a preventive action under the Act was
called for and such action could not have been interfered with by the High Court. It was
also submitted that the High Court was not right in observing that the detenu was ill-
treated when he was arrested in connection with Grime No. 3022 of 2006 at Police
Station, Wadi (Nagpur) and there was 'custodial violence' by police authorities. But, even
if it is assumed to be true, the detenu could have taken appropriate action in accordance
with law. That, however, does not make order of detention vulnerable. The counsel also
contended that the High Court was not right that no other steps had been considered by
the authorities. In fact, the detenu was directed to execute a bond of good behaviour and
such bond was also executed by him. It was, therefore, submitted that the order passed by
the High Court deserves to be set aside by allowing the Detaining Authority to execute
the order of detention against the detenu and by granting liberty to the detenu to
challenge the order by taking appropriate action in accordance with law against such
detention.
RESPONDENTS SUBMISSION
15. Learned counsel for the respondent-detenu, on the other hand, supported the order of
the High Court. He submitted that normally a High Court or this Court, in exercise of
extraordinary powers under Article 226 or 32 of the Constitution does not interfere with
an order of detention at pre-execution stage. But, there is no restriction, limitation or
prohibition on the power of the Court in exercising constitutional powers. It is a self-
imposed limitation by Courts themselves. In an appropriate case, however, if the Court is
satisfied that the order is ex facie illegal, void, without jurisdiction or actuated by mala
fides, the Court has jurisdiction to grant relief to the detenu even if the order is not
executed and the person is not served with such order. In the case on hand, the learned
counsel submitted, the High Court was satisfied that one of the exceptions carved out by
this Court in Alka Subhash Gadia had been made out and the Court exercised the power
which cannot be said to be illegal or contrary to law. It was also submitted that when it
was alleged by the detenu that there was 'custodial violence' by police authorities, such
complaint and the requisite materials should have been placed before the Detaining
Authority and the Detaining Authority was bound to consider them. If no such material
was placed before the authority or was placed but not considered by the Detaining
Authority, there was non-application of mind on the part of the authority and it can be
concluded that the order was passed for a 'wrong purpose' and was liable to be set aside.
Finally, it was submitted that the order of detention was set aside by the High Court on
October 17, 2006 and no allegation had been made by the appellants that subsequent to
the said order, the detenu has indulged in black-marketing activities. Hence, even if this
Court is convinced that the High Court was not right in exercising jurisdiction at pre-
execution stage, this Court may not interfere with the decision of the High Court.
WHETHER HIGH COURT WAS RIGHT IN QUASHING ORDER OF DETENTION?
16. Having heard learned counsel for the parties and having given anxious consideration
to the facts and circumstances of the case, we are clearly of the view that the High Court
exceeded its jurisdiction in entertaining the writ-petition and in quashing and setting aside
the order of detention at pre-execution stage. It cannot be gainsaid that the order of
detention has been made against the detenu in exercise of power under the Act since the
Detaining Authority was satisfied that detention of the writ-petitioner
@page-SC1710
was necessary "with a view to preventing him from acting in any manner prejudicial to
the maintenance of supplies of commodities to the community" i.e. selling of kerosene in
black market, true it is that such order must be 'preventive' and not 'punitive' in nature.
But the Court must be conscious and mindful that the satisfaction of the Detaining
Authority is 'subjective' in nature and the Court cannot substitute its 'objective' opinion
for the subjective satisfaction of Detaining Authority for coming to the conclusion
whether the activities of the detenu were or were not prejudicial to the maintenance of
supplies of essential commodities to the society. It would, therefore, be appropriate if we
consider the concept of and relevant principles governing 'preventive detention'.
PERSONAL LIBERTY : PRECIOUS RIGHT
17
. There can be no doubt that personal liberty is a precious right. So did the Founding
Fathers believe because, while their first object was to give unto the people a Constitution
whereby a Government was established, their second object, equally important, was to
protect the people against the Government. That is why, while conferring extensive
powers on the Government like the power to declare an emergency, the power to suspend
the enforcement of Fundamental Rights or the power to issue Ordinances, they assured to
the people a Bill of Rights by Part III of the Constitution, protecting against executive
and legislative despotism those human rights which they regarded as 'fundamental'. The
imperative necessity to protect those rights is a lesson taught by all history and all human
experience. Our Constitution makers had lived through bitter years and seen an alien
government trample upon human rights which the country had fought hard to preserve.
They believed like Jefferson that "an elective despotism was not the government we
fought for." And therefore, while arming the Government with large powers to prevent
anarchy from within and conquest from without, they took care to ensure that those
powers were not abused to mutilate the liberties of the people [vide A.K. Roy v. Union of
India, (1982) 1 SCC 271; Attorney General for India v. Amritlal Pranjivandas, (1994) 5
SCC 54]. AIR 1982 SC 710
1994 AIR SCW 2652
18. It has been observed in R. v. Home Secretary, (1999) 2 AC 38 : (1997) 1 WLR 503,
"The imposition of what is in effect a sub-stantial term of imprisonment by the exercise
of executive discretion, without trial, lies uneasily with ordinary concepts of the rule of
law".
HABEAS CORPUS : FIRST SECURITY OF CIVIL LIBERTY
19. The celebrated writ of habeas corpus has been described as "a great constitutional
privilege" or "the first security of civil liberty". The writ provides a prompt and effective
remedy against illegal detention. By this writ, the Court directs the person or authority
who has detained another person to bring the body of the prisoner before the Court so as
to enable the Court to decide the validity, jurisdiction or justification for such detention.
The principal aim of the writ is to ensure swift judicial review of alleged unlawful
detention on liberty or freedom of the prisoner or detenu.
20. In Cox v. Hakes, (1890) 15 AC 506 : 60 LJQB 89, Lord Halsbury propounded:
"For a period extending as far back as our legal history, the writ of habeas corpus has
been regarded as one of the most important safeguards of the liberty of the subject. If
upon the return to that writ it was adjudged that no legal ground was made to appear
justifying detention, the consequence was immediate release from custody. If release was
refused, a person detained might make a fresh application to every judge or every Court
in turn, and each Court or Judge was bound to consider the question independently and
not to be influenced by the previous decisions refusing discharge. If discharge followed,
the legality of that discharge could never be brought in question. No writ of error or
demurrer was allowed."
21. In R v. Secretary of State for Home Affairs; ex parte O'Brien, (1923) 2 KB 361 : 1923
AC 603 : 92 LJKB 797, Scrutton, LJ observed: "The law in the country has been very
zealous of any infringement of personal liberty. This case is not to be exercised less
vigilantly, because the subject whose liberty is in question may not be particularly
meritorious. It is indeed one test of belief in principles if you apply them to cases with
which you have no sympathy at all. You really believe in freedom of speech, if you are
willing to allow it to men whose opinion seem to you wrong and even dangerous; and the
subject is entitled only to be deprived of his liberty by due process of law, although that
due process if taken will probably send him
@page-SC1711
to prison. A man undoubtedly guilty of murder must yet be released if due forms of law
have not been followed in his conviction. It is quite possible, even probable, that the
subject in this case is guilty of high treason: he is still entitled only to be deprived of his
liberty by due process of law".
(Emphasis supplied)
22. As early as in 1627, the following memorable observations were made by Hyde, C.J.
in Darnel. Re, (1927) 3 St Tr. 1 :
"Whether the commitment be by the King or others, this Court is a place where the King
doth sit in person, and we have power to examine it, and if it appears that any man hath
injury or wrong by his imprisonment, we have power to deliver and discharge him, if
otherwise, he is to be remanded by us to prison".
23. In Halsbury's Laws of England, (4th Edn., Vol.11, para 1454, p,789), it is stated :
"In any matter involving the liberty of the subject the action of the Crown or its ministers
or officials is subject to the supervision and control of the Judges on habeas corpus. The
Judges owe a duty to safeguard the liberty of the subject not only to the subjects of the
Crown, but also to all persons within the realm who are under the protection of the
Crown and entitled to resort to the courts to secure any rights which they may have, and
this whether they are alien friends or alien enemies. It is this fact which means the
prerogative writ of the highest constitutional importance, it being a remedy available to
the lowliest subject against the most powerful. The writ has frequently been used to test
the validity of acts of the executive and, in particular, to test the legality of detention
under emergency legislation. No peer or lord of Parliament has privilege of peerage or
Parliament against being compelled to render obedience to a writ of habeas corpus
directed to him".
24. In Greene v. Secretary of State for Home Affairs, (1941) 3 All ER 388 : 1942 AC 284,
Lord Wright observed :
"The inestimable value of the proceedings is that it is the most efficient mode ever
devised by any system of law to end unlawful detainments and to secure a speedy release
where the circumstances and the law so required".
25. The underlying object of the writ of habeas corpus has been succinctly explained by
Dua, J. in Sapmawia v. Deputy Commissioner, Aijal, (1971) 1 SCR 690, in the following
words :
"The writ of habeas corpus is a prerogative writ by which, the causes and validity of
detention of a person are investigated by summary procedure and if the authority having
his custody does not satisfy the court that the deprivation of his personal liberty is
according to the procedure established by law, the person is entitled to his liberty. The
order of release in the case of a person suspected of or charged with the commission of an
offence does not per se amount to his acquittal or discharge and the authorities are not, by
virtue of the release only on habeas corpus, deprived of the power to arrest and keep him
in custody in accordance with law for this writ is not designed to interrupt the ordinary
administration of criminal law".
PREVENTIVE DETENTION : MEANING AND CONCEPT
26. There is no authoritative definition of 'preventive detention' either in the Constitution
or in any other statute. The expression, however, is used in contradistinction to the word
'punitive'. It is not a punitive or penal provision but is in the nature of preventive action or
precautionary measure. The primary object of preventive detention is not to punish a
person for having done something but to intercept him before he does it. To put it
differently, it is not a penalty for past activities of an individual but is intended to pre-
empt the person from indulging in future activities sought to be prohibited by a relevant
law and with a view to preventing him from doing harm in future.
27
. In Hardhan Saha v. State of W.B., (1975) 3 SCC 198, explaining the concept of
preventive detention, the Constitution Bench on this Court, speaking through Ray, C.J.
stated; AIR 1974 SC 2154, Para 19
"The essential concept of preventive detention is that the detention of a person is not to
punish him for something he has done but to prevent him from doing it. The basis of
detention is the satisfaction of the executive of a reasonable probability of the likelihood
of the detenu acting in a manner similar to his past acts and preventing him by detention
from doing the same. A criminal conviction on the other hand is for an act already done
which can only be possible by a trial and legal evidence. There is no parallel between
prosecution in a Court of law and a detention order under the Act. One is
@page-SC1712
a punitive action and the other is a preventive act. In one case a person is punished to
prove his guilt and the standard is proof beyond reasonable doubt whereas in preventive
detention a man is prevented from doing something which it is necessary for reasons
mentioned in Section 3 of the Act to prevent".
28
. In another leading decision in Khudiram Das v. State of W.B., (1975) 2 SCR 832, this
Court stated : AIR 1975 SC 550, Para 8
"The power of detention is clearly a preventive measure. It does not partake in any
manner of the nature of punishment. It is taken by way of precaution to prevent mischief
to the community. Since every preventive measure is based on the principle that a person
should be prevented from doing something which, if left free and unfettered, it is
reasonably probable he would do, it must necessarily proceed in all cases, to some extent,
on suspicion or anticipation as distinct from proof. Patanjali Sastri, C.J., pointed out in
State of Madras v. V.G. Row AIR 1952 SC 196 : 1952 SCR 597 that preventive detention
is "largely precautionary and based on suspicion" and to these observations may be added
the following words uttered by the learned Chief Justice in that case with reference to the
observations of Lord Finlay in Rexv. Halliday, 1917 AC 260 namely, that "the court was
the least appropriate tribunal to investigate into circumstances of suspicion on which such
anticipatory action must be largely based". This being the nature of the proceeding, it is
impossible to conceive how it can possibly be regarded as capable of objective
assessment. The matters which have to be considered by the detaining authority are
whether the person concerned, having regard to his past conduct judged in the light of the
surrounding circumstances and other relevant material, would be likely to act in a
prejudicial manner as contemplated in any of sub-clauses (i), (ii) and (iii) of Clause (1) of
Subsection (1) of Section 3, and if so, whether it is necessary to detain him with a view to
preventing him from so acting. These are not matters susceptible of objective
determination and they could not be intended to be judged by objective standards. They
are essentially matters which have to be administratively determined for the purpose of
taking administrative action. Their determination is, therefore, deliberately and advisedly
left by the legislature to the subjective satisfaction of the detaining authority which by
reason of its special position, experience and expertise would be best fitted to decide
them. It must in the circumstances be held that the subjective satisfaction of the detaining
authority as regards these matters constitutes the foundation for the exercise of the power
of detention and the Court cannot be invited to consider the propriety or sufficiency of the
grounds on which the satisfaction of the detaining authority is based. The Court cannot,
on a review of the grounds, substitute its own opinion for that of the authority, for what is
made condition precedent to the exercise of the power of detention is not an objective
determination of the necessity of detention for a specified purpose but the subjective
opinion of the detaining authority, and if a subjective opinion is formed by the detaining
authority as regards the necessity of detention for a specified purpose, the condition of
exercise of the power of detention would be fulfilled. This would clearly show that the
power of detention is not a quasi-judicial power".
(Emphasis supplied)
29
. Recently, in Naresh Kumar Goyal v. Union of India, (2005) 8 SCC 276, the Court said;
2005 AIR SCW 5394, Para 9
"It is trite law that an order of detention is not a curative or reformative or punitive
action, but a preventive action, avowed object of which being to prevent the anti-social
and subversive elements from imperiling the welfare of the country or the security of the
nation or from disturbing the public tranquility or from indulging in smuggling activities
or from engaging in illicit traffic in narcotic drugs and psychotropic substances etc.
Preventive detention is devised to afford protection to society. The authorities on the
subject have consistently taken the view that preventive detention is devised to afford
protection to society. The object is not to punish a man for having done something but to
intercept before he does it, and to prevent him from doing so. It, therefore, becomes
imperative on the part of the detaining authority as well as the executing authority to be
very vigilant and keep their eyes skinned but not to turn a blind eye in securing the
detenue and executing the detention order because any indifferent attitude on the part of
the detaining authority or executing authority will defeat the very purpose of preventive
action and turn the 1992 AIR SCW 2173
AIR 1982 SC 1143
AIR 1979 SC 541
@page-SC1713
detention order as a dead letter and frustrate the entire proceedings. Inordinate delay, for
which no adequate explanation is furnished, led to the assumption that the live and
proximate link between the grounds of detention and the purpose of detention is
snapped". [See : P.U. Iqbal v. Union of India and Ors., (1992) 1 SCC 434; Ashok Kumar
v. Delhi Administration, (1982) 2 SCC 403 and Bhawarlal Ganeshmalji v. State of
Tamilnadu, (1979) 1 SCC 465].
PREVENTIVE DETENTION : NECESSARY EVIL
30
. Liberty of an individual has to be subordinated, within reasonable bounds, to the good

of the people. The framers of the Constitution were conscious of the practical need of
preventive detention with a view to striking a just and delicate balance between need and
necessity to preserve individual liberty and personal freedom on the one hand and
security and safety of the country and interest of the society on the other hand. Security
of State, maintenance of public order and services essential to the community, prevention
of smuggling and black marketing activities, etc. demand effective safeguards in the
larger interests of sustenance of a peaceful democratic way of life. In considering and
interpreting preventive detention laws, courts ought to show greatest concern and solitude
in upholding and safeguarding the Fundamental Right of liberty of the citizen, however,
without forgetting the historical background in which the necessityan unhappy necessity
was felt by the makers of the Constitution in incorporating provisions of preventive
detention in the Constitution itself. While no doubt it is the duty of the court to safeguard
against any encroachment on the life and liberty of individuals, at the same time the
authorities who have the responsibility to discharge the functions vested in them under
the law of the country should not be impeded or interfered with without justification [vide
A.K. Roy v. Union of India; Bhut Nath v. State of West Bengal, (1974) 3 SCR 315; State
of W.B. v. Ashok Dey, (1972) 2 SCR 434; ADM Jabalpur v. Shirakant Shukla, 1976 Supp
SCR 132]. AIR 1982 SC 710
AIR 1974 SC 806
AIR 1972 SC 1660
AIR 1976 SC 1207
SUBJECTIVE SATISFACTION : SCOPE OF JUDICIAL REVIEW

31. Subjective satisfaction being a condition precedent for the exercise of the power of
preventive detention conferred on the executive, the Court can always examine whether
the requisite satisfaction is arrived at by the authority; if it is not, the condition precedent
to the exercise of the power would not be fulfilled and the exercise of the power would be
bad.
32. A Court cannot go into correctness or otherwise of the facts stated or allegations
levelled in the grounds in support of detention. A Court of Law is 'the last appropriate
tribunal to investigate into circumstances of suspicion on which such anticipatory action
must be largely based.'
33. That, however, does not mean that the subjective satisfaction of Detaining Authority
is wholly immune from judicial reviewability. By judicial decisions, courts have carved
out areas, though limited, within which the validity of subjective satisfaction can be
tested judicially.
GROUNDS OF CHALLENGE
34. An order of detention can be challenged on certain grounds, such as, the order is not
passed by the competent authority, condition precedent for the exercise of power does not
exist; subjective satisfaction arrived at by the Detaining Authority is irrational, the order
is mala fide; there is non-application of mind on the part of the Detaining Authority in
passing the order; the grounds are, or one of the grounds is, vague, indefinite, irrelevant,
extraneous, non-existent or stale; the order is belated; the person against whom an order
is passed is already in jail; the order is punitive in nature; the order is not approved by
State/Central Government as required by law; failure to refer the case of the detenu to the
Board constituted under the statute; the order was quashed/revoked and again a fresh
order of detention was made without new facts, etc.
CHALLENGE TO DETENTION-ORDER PRIOR TO EXECUTION
35. A writ of habeas corpus may be prayed in case of actual detention or imprisonment of
a person if it is illegal or unconstitutional. But if a person is not actually detained,
obviously a writ of habeas corpus would not lie. A question, however, may arise whether
in such an eventuality, no remedy at all is available to an aggrieved person against whom
an order of detention has been
@page-SC1714
made and such order is still to be executed. In other words, whether actual detention of a
person against whom an order of detention is made is sine qua non or condition precedent
for approaching a Court of Law.
36. On this question, our attention has been invited by the learned counsel for both the
sides to several decisions of this Court, Having gone through those decisions, we are of
the view that normally and as a general rule, an order of detention can be challenged by
the detenu after such order as also the grounds of detention have been received by him
and the order is executed, In exceptional cases, however, a High Court or this Court may
exercise extraordinary powers to protect a person against an illegal invasion of his right
to freedom by protecting him while still he is free by issuing an appropriate writ,
direction or order including a writ in the nature of mandamus questioning an order of
detention and restraining the authorities from interfering with the right of liberty of an
individual against whom such order is made.
37
. A direct question arose before this Court in Kiran Pasha v. Government of A. P., (1990)
1 SCC 328. In that case, the petitioner filed a writ petition in the High Court of Andhra
Pradesh under Article 226 of the Constitution restraining the respondents from making an
order of detention against him. A Single Judge of the High Court granted interim relief
against taking the petitioner in custody but the Division Bench held that the order of
detention was already made even prior to filing of the petition, the petitioner was taken in
custody and the petition had become infructuous. According to the Division Bench, the
normal rule was that the petitioner should first surrender to custody and then to move for
a writ of habeas corpus. The aggrieved petitioner approached this Court. An important
question before this Court was whether a writ petition for protection of a Fundamental
Right being threatened or in imminent danger was maintainable. Following K.K. Kochuni
v. State of Madras, 1959 Supp (2) SCR 316 and approving observations of the High
Court of Bombay in Jayantilal v. State of Maharashtra, (1981) 83 Bom LR 190 as also of
the Full Bench of the High Court of Gujarat in Ved Prakash v. State of Gujarat, AIR 1987
Guj 253, this Court observed : AIR 1959 SC 725
1981 Cri LJ 767
"When a right is so guaranteed, it has to be understood in relation to its orbit and its
infringement. Conferring the right to life and liberty imposes a corresponding duty on the
rest of the society, including the State, to observe that right, that is to say, not to act or do
anything which would amount to infringement of that right, except in accordance with the
procedure prescribed by law. In other words, conferring the right on a citizen involves the
compulsion on the rest of the society, Including the State, not to infringe that right. The
question is at what stage the right can be enforced ? Does a citizen have to wait till the
right is infringed ? Is there no way of enforcement of the right before it is actually
infringed? Can the obligation or compulsion on the part of the State to observe the right
be made effective only after the right is violated or in other words can there be
enforcement of a right to life and personal liberty before it is actually Infringed ? What
remedy will be left to a person when his right to life is violated ? When a right is yet to be
violated, but is threatened with violation can the citizen move the court for protection of
the right ? The protection of the right is to be distinguished from its restoration or remedy
after violation. When right to personal liberty is guaranteed and the rest of the society,
including the State, is compelled or obligated not to violate that right, and if someone has
threatened to violate it or its violation is imminent, and the person whose right is so
threatened or its violation so imminent resorts to Article 226 of the Constitution, could
not the court protect observance of his right by restraining those who threatened to violate
it until the court examines the legality of the action ? Resort to Article 226 after the right
to personal liberty is already violated is different from the pre-violation protection. Post-
violation resort to Article 226 is for remedy against violation and for restoration of the
right, while pre-violation protection is by compelling observance of the obligation or
compulsion under law not to infringe the right by all those who are so obligated or
compelled. To surrender and apply for a writ of habeas corpus is a post-violation remedy
for restoration of the right which is not the same as restraining potential violators in case
of threatened violation of the right. The question may arise what precisely may amount to
threat or imminence of violation. Law surely cannot take action for internal
@page-SC1715
thoughts but can act only after overt acts. If overt acts towards violation have already
been done and the game has come to the knowledge of the person threatened with that
violation and he approaches the court under Article 226 giving sufficient particulars of
proximate action as would imminently lead to violation of right, should not the court call
upon those alleged to have taken those steps to appear and show cause why they should
not be restrained from violating that right ? Instead of doing so would it be the proper
course to be adopted to tell the petitioner that the court cannot take any action towards
preventive Justice until his right is actually violated whereafter alone he could petition for
a writ of habeas corpus ? In the instant case when the writ petition was pending in court
and the appellant's right to personal liberty happened to be violated by taking him into
custody in preventive detention, though he was released after four days, but could be
taken into custody again, would it be proper for the court to reject the earlier writ petition
and tell him that his petition has become infructuous and he had no alternative but to
surrender and then petition for a writ of habeas corpus? The difference of the two
situations, as we have seen, have different legal significance. If a threatened invasion of a
right is removed by restraining the potential violator from taking any steps towards
violation, the rights remain protected and the compulsion against its violation is enforced.
If the right has already been violated, what is left is the remedy against such violation and
for restoration of the right".
(Emphasis supplied)
38. Alka Subhash Gadia was indeed a leading decision of this Court on the point. This
Court in that case stated that if in each and every case a detenu is permitted to challenge
an order of detention and seek stay of the operation of the order before execution, "the
very purpose of the order and of the law under which it is made will be frustrated since
such orders are in operation only for a limited period".
39. The Court, after considering several cases, observed that with a view to prevent
possible abuse of 'draconian measure' of preventive detention, the Legislature had taken
care to provide various salutary safeguards such as (i) obligation to furnish to the detenu
the grounds of detention; (ii) right to make representation against such action;
(iii) constitution of Advisory Board consisting of persons who are or have been qualified
to be appointed as Judges of the High Court; (iv) reference of the case of the detenu to the
Advisory Board; (v) hearing of the detenu by the Advisory Board in person; (vi)
obligation of the Government to revoke detention order if the Advisory Board so opines;
(vii) maximum period for which a person can be detained; (viii) revocation of detention
order by the Government on the representation by the detenu, etc.
40. The Court then considered the point as to denial of a right to the proposed detenu to
challenge the order of detention before the execution of order and observed :
"As regards his last contention, viz., that to deny a right to the proposed detenu to
challenge the order of detention and the grounds on which it is made before he is taken in
custody is to deny him the remedy of judicial review of the impugned order which right is
a part of the basic structure of the Constitution, we find that this argument is also not
well-merited based as it is on absolute assumptions. Firstly, as pointed out by the
authorities discussed above, there is a difference between the existence of power and its
exercise. Neither the Constitution Including the provisions of Article 22 thereof nor the
Act in question places any restriction on the powers of the High Court and this Court to
review judicially the order of detention. The powers under Articles 226 and 32 are wide,
and are untrammelled by any external restrictions, and can reach any executive order
resulting in civil on criminal consequences. However, the Courts have over the years
evolved certain self-restraints for exercising these powers. They have done so in the
interests of the administration of justice and for better and more efficient and informed
exercise of the said powers. These self-imposed restraints are not confined to the review
of the orders passed under detention law only. They extend to the orders passed and
decisions made under all laws. It is in pursuance of this self-evolved judicial policy and
in conformity with the self-imposed internal restrictions that the Courts insist that the
aggrieved person first allow the due operation and implementation of the concerned law
and exhaust the remedies provided by it before approaching the High Court and this
Court to invoke their discretionary, extraordinary, and equitable jurisdiction under
Articles 226 and 32 respectively.
@page-SC1716
That jurisdiction by its very nature is to be used sparingly and in circumstances where no
other efficacious remedy is available. We have while discussing the relevant authorities
earlier dealt in detail with the circumstances under which these extraordinary powers are
used and are declined to be used by the courts. To accept Shri Jain's present contention
would mean that the courts should disregard all these time-honoured and well-tested
judicial self-restraints and norms and exercise their said powers, in every case before the
detention order is executed. Secondly, as has been rightly pointed out by Shri Sibbal for
the appellants, as far as detention orders are concerned if in every case a detenu is
permitted to challenge and seek the stay of the operation of the order before it is
executed, the very purpose of the order and of the law under which it is made will be
frustrated since such orders are in operation only for a limited period. Thirdly, and this is
more important, it is not correct to say that the courts have no power to entertain
grievances against any detention order prior to its execution. The courts have the
necessary power and they have used it in proper cases as has been pointed out above,
although such cases have been few and the grounds on which the courts have interfered
with them at the pre-execution stage are necessarily very limited in scope and number,
viz., where the courts are prima facie satisfied (i) that the impugned order is not passed
under the Act under which it is purported to have been passed, (ii) that it is sought to be
executed against a wrong person, (iii) that it is passed for a wrong purpose, (iv) that it is
passed on vague, extraneous and irrelevant grounds or (v) that the authority which passed
it had no authority to do so. The refusal by the courts to use their extraordinary power of
judicial review to interfere with the detention orders prior to their execution on any other
grounds does not amount to the abandonment of the said power or to their denial to the
proposed detenu, but prevents their abuse and the perversion of the law in question".
(Emphasis supplied)
41. The above principles have been reiterated in subsequent cases decided by this Court.
42. The learned counsel for the detenu urged that on the facts and in the circumstances of
the case, the High Court was right in holding that exception (iii) in Alka Subhash Gadia
got attracted inasmuch the order was passed for a 'wrong purpose'.
43. We must concede our inability to uphold the above contention. We have been taken to
the judgment of the High Court impugned in the present appeal. So far as the authority of
the Commissioner of Police is concerned, the High Court was satisfied that the order was
passed by the authority competent to exercise the power. It was also clear that the order
was passed 'under the Act' since the Detaining Authority was satisfied that the detention
of the writ-petitioner was necessary 'with a view to preventing him from acting in any
manner prejudicial to the maintenance of supplies of essential commodities to the
community' i.e. kerosene. The grounds, in our opinion, cannot be said to be vague,
extraneous irrelevant or nonexistent. (In fact, the detenu absconded and grounds could
not be served). It is not even alleged that the order is sought to be executed against a
wrong person.
44. According to the High Court, however, the order was passed for a 'wrong purpose'. It
was contended before the High Court on behalf of the detenu that certain offences had
been registered against the detenu and they were under investigation. The report of the
Chemical Analyzer was not received and yet the Detaining Authority took into account
those cases. It was further submitted that offences were registered against the detenu in
July, 2003, September, 2005 and May, 2006 and no preventive action was thought
necessary to be taken by the authority at any stage. It was when the detenu was arrested
in 2006 and a complaint was made against 'custodial violence' meted out to him by police
authorities while he was in custody that with a view to save the skin of erring police
officials that an illegal order of detention was passed. Thus, it was made for 'wrong
purpose' and not with a view to preventing the writ petitioner from indulging in black
marketing of kerosene. The High Court found 'considerable force' in the submission. The
High Court, with respect, went wrong in observing that once a detenu had made
allegations against the police atrocities and custodial violence, the Detaining Authority
ought to have waited till the inquiry was conducted and report submitted.
45. The Court observed;
"We find considerable force in this submission.
@page-SC1717
A careful perusal of the events that followed the registration of Crime No.3022/ 2006 at
P.S. Wadi (Nagpur) indicates that the petitioner made allegations against Respondent No.
3 about custodial violence immediately on his release. The said complaint dated
20.7.2006 was addressed to Respondent No.2. This complaint was forwarded by
Respondent No.2 to DCP-1 Nagpur on 26.7.2006 for necessary enquiry and action. A
copy of the communication 26.7.2006 was also forwarded to the petitioner. Immediately
on the next day i.e. on 27.7.2006 detention order was passed by Respondent No. 2 even
before any enquiry could be made into complaint made by the i. e. petitioner against
Respondent No. 3. The detaining authority should have at least waited till the enquiry
into the complaint made by the petitioner was initiated and completed and the result
thereof either in the positive or in the negative. Instead of waiting for that, the detaining
authority immediately proceeded to pass order of detention against the petitioner which
indicates that even without subjective satisfaction of the detaining authority hastily
passed the order of detention for wrong purpose. This clearly shows that the detention
order against the petitioner was passed for a wrong purpose and on this count the same
deserves to be quashed and set aside".
46
. The High Court again went wrong in holding that two parallel and simultaneous
proceedings were not permissible in law. The High Court, relying on Biram Chand v.
State of U.P. and Ors., (1974) 4 SCC 573, stated; AIR 1974 SC 1161
"A perusal of the grounds of detention shows that Crime No. 76/2006 of P.S. Mouda,
District Nagpur was taken into consideration by the detaining authority for its subjective
satisfaction. Now, in case the petitioner wants to make representation to the detaining
authority against the order of detention he is required to disclose his defence which may
cause prejudice to the petitioner in defending the criminal prosecution. In Biram Chand v.
State of Uttar Pradesh and Ors., AIR 1974 SC 1161, it has been held that if the authority
concerned makes an order of detention under the Act and also prosecutes him in criminal
case on self-same facts, the detaining authority cannot take recourse to two parallel and
simultaneous proceedings nor can take re-course to a ground which is the subject matter
of a criminal trial. Thus on this ground also the impugned order of detention cannot be
sustained".
47
. Unfortunately, the attention of the High Court was not invited to Hardhan Saha, wherein
the Constitution Bench did not approve the law laid down by this Court in Biram Chand.
Referring to larger Bench decisions, the Court stated; AIR 1974 SC 1161
"Article 14 is inapplicable because preventive detention and prosecution are not

synonymous. The purposes are different. The authorities are different. The nature of
proceedings is different. In a prosecution an accused is sought to be punished for a past
act. In preventive detention, the past act is merely the material for inference about the
future course of probable conduct on the part of the detenu.
The recent decisions of this Court on this subject are many. The decisions in Borjahan
Gorey v. The State of West Bengal reported in (1972) 2 SCC 550, Ashim Kumar Ray v.
State of West Bengal reported in (1973) 4 SCC 76, Abdul Aziz v. The Distt. Magistrate,
Burdwan and Ors. reported in (1973) 1 SCC 301 and Debu Mahto v. The State of West
Bengal reported in (1974) 4 SCC 135 correctly lay down the principles to be followed as
to whether a detention order is valid or not. The decision in Biram Chand v. State of Uttar
Pradesh and Ors. reported in (1974) 4 SCC 573 which is a Division Bench decision of
two learned Judges is contrary to the other Bench decisions consisting in each case of
three learned Judges. The principles which can be broadly stated are these. First merely
because a detenu is liable to be tried in a criminal court for the commission of a criminal
offence or to be proceeded against for preventing him from committing offences dealt
with in Chapter VIII of the Cr.P.C. would not by itself debar the Government from taking
action for his detention under the Act. Second, the fact that the Police arrests a person and
later on enlarges him on bail and initiates steps to prosecute him under the CrPC and even
lodges a first information report may be no bar against the District Magistrate issuing an
order under the preventive detention. Third, where the concerned person is actually in jail
custody at the time when an order AIR 1972 SC 2256
AIR 1972 SC 2561
AIR 1973 SC 770
AIR 1974 SC 816
AIR 1974 SC 1161
@page-SC1718
of detention is passed against him and is not likely to be released for a fair length of time,
it may be possible to contend that there could be no satisfaction on the part of the
detaining authority as to the likelihood of such a person indulging in activities which
would jeopardise the security of the State or the public order. Fourth, the mere
circumstance that a detention order is passed during the pendency of the prosecution will
not violate the order. Fifth, the order of detention is a precautionary measure. It is based
on a reasonable prognosis of the future behaviour of a person based on his past conduct in
the light of the surrounding circumstances".
(Emphasis supplied)
48. Considering the facts on record in their entirety, it is clear that many cases had been
filed against the detenu under the 1955 Act. It was alleged that the writ petitioner was
indulging in illegal activities of black marketing of kerosene which was an essential
commodity. Those cases had been registered in 2002, 2003, 2005 and 2006. Thus, the
action was taken on the basis of past conduct of the detenu having reasonable prognosis
of future behaviour and there was 'live link' between the activities of the detenu and the
action of preventive detention to reach subjective satisfaction by the Detaining Authority.
It has come on record that the detenu was called upon to execute a bond for good
behaviour under Sections 110 and 111 of the Code of Criminal Procedure, 1973. It is,
therefore, clear that the authorities had taken steps under the relevant law. But even
otherwise, in our opinion, such questions may become relevant and can be considered
after the order of detention is executed.
49. Similarly, if the detenu was ill-treated when he was in custody in connection with any
case registered against him under the 1955 Act, or there was custodial violence, it would
not affect detention of the writ-petitioner. Whether there was such custodial violence and
whether police officers had abused their position can indeed be gone into by a competent
authority or by a Court of law. That circumstance, however, will not make the order of
detention invalid or for a 'wrong purpose'. Externment proceedings initiated against the
detenu under Section 59 of the Bombay Police Act, 1951 also would not make the action
assailable. In our considered opinion, therefore, this was not a case in which interference
was warranted at pre-execution stage.
50
. In this connection, it may be profitable if we refer to a decision of this Court in Subhash

Muljimal Gandhi v. L. Himingliana and Anr., (1994) 6 SCC 14. There, an order of
detention was challenged by the detenu at pre-execution stage. It was contended by the
detenu that the contingencies noted in Alka Subhash Gadia were illustrative and not
exhaustive. It was submitted that there might well be other contingencies where such
order could be questioned at pre-execution stage. In that case also, it was alleged that the
detenu was harassed, humiliated and beaten by authorities and the case called for grant of
relief before execution of order of detention. 1994 AIR SCW 4975
51. Negativing the contention and referring to Alka Subhash Gadia and N. K. Bapna v.
Union of India, (1992) 3 SCC 512, the Court said;
"The above principles laid down in Alka Subhash Gadia have been quoted with approval
by another three-Judge Bench in N. K. Bapna v. Union of India ((1992) 3 SCC 512.
Bound as we are by the above judgments, we must hold that the other contingencies, if
any, must be of the same species as of the five contingencies referred to therein. Coming
now to Mr. Jethmalani's submission, that the detention order was passed 'for a wrong
purpose', namely, to harass and humiliate the appellant by concocting a false case of
smuggling, based primarily on a confession obtained from him after subjecting to him to
assault, illegal detention and extortion we find that the detaining authority has denied the
allegations of assault and extortion. Needless to say these are disputed questions of fact,
which we cannot entertain much less delve into or decide upon. In any case, the said fact,
even if true cannot vitiate the order of detention."
(Emphasis supplied)
52
. We may also refer to one more case of this Court in State of Bihar v. Ram Balak Singh,
(1966) 3 SCR 344. The question which arose before this Court there related to grant of
bail/parole in a petition filed by a detenu for a writ of habeas corpus. The Court observed
that there is vital difference between 'preventive detention' and 'punitive detention'.
Preventive detention is a precautionary AIR 1966 SC 1441
@page-SC1719
measure and is intended to pre-empt a person from indulging in illegal or anti-social
activities in order to safeguard the defence of India, public safety, maintenance of public
order, maintenance of supplies and services essential to the life of the community,
prevention of smuggling activities, etc. Therefore, the jurisdiction of the court to grant
relief to the detenu in such proceedings is indeed narrow and very much limited. Bail
cannot be granted as a matter of common practice on considerations generally applicable
to cases of punitive detention. Therefore, whenever the Court is of the view that prima
facie the allegations made in the writ petition disclose a serious defect in the order of
detention, the wiser and the more sensible and reasonable course to adopt would
invariably be to expedite the hearing of the writ petition and deal with the merits without
any delay.
(Emphasis supplied)
53. The Court, however, held that it cannot be contended as a proposition of law that a
writ Court has no jurisdiction to make an interim order giving the detenu the relief which
the Court would be entitled to grant at the end of the proceedings. If the Court has
jurisdiction to give the main relief to the detenu at the end of the proceedings, on
principle and in theory, it is not easy to understand why the Court cannot give interim
relief to the detenu pending the final disposal of his writ petition. The interim relief which
can be granted in habeas corpus proceedings must no doubt be in aid of, and auxiliary to,
the main relief. It cannot be urged that releasing a detenu on bail is not in aid of, or
auxiliary to the main relief for which a claim is made on his behalf in the writ petition.
54. The Court then concluded :
"In dealing with writ petitions of this character, the Court has naturally to bear in mind
the object which is intended to be served by the orders of detention. It is no doubt true
that a detenu is detained without a trial; and so, the courts would inevitably be anxious to
protect the individual liberty of the citizen on grounds which are justiciable and within
the limits of their jurisdiction. But in upholding the claim for individual liberty within the
limits permitted by law, it would be unwise to ignore the object which the orders of
detention are intended to serve. An unwise decision granting bail to a party may lead to
consequences which are prejudicial to the interests of the community at large; and that is
a factor which must be duly weighed by the High Court before it decides to grant bail to a
detenu in such proceedings. We are free to confess that we have not come across cases
where ball has been granted in habeas corpus proceedings directed against orders of
detention under R. 30 of the Rules, and we apprehend that the reluctance of the courts to
pass orders of bail in such proceedings is obviously based on the fact that they are fully
conscious of the difficulties legal and constitutional, and of the other risks involved in
making such orders."
(Emphasis supplied)
55
. The learned counsel for the respondent referred to Rajinder Arora v. Union of India and
Ors., (2006) 4 SCC 796. On the facts of the case, the Court held that the case of the
appellant was covered by exceptions (iii) and (iv) of Alka Subhash Gadia and the relief
was granted. 2006 AIR SCW 1510
56
. Likewise, in K. S. Mangamuthu v. State of Tamil Nadu and Ors., (2006) 4 SCC 792,
there was non-placement of relevant material before the Detaining Authority and it was
held by this Court that the order of detention was vitiated. 2005 AIR SCW 6124
57. The Counsel relied upon certain other decisions wherein the order was quashed and
set aside. There, however, the order was executed and the detenu surrendered. As already
held by us, at the second stage, i.e. after the order of detention is executed and the person
is served with the grounds of detention, he can challenge such order and Court will
decide the legality or otherwise of the action.
58. From the foregoing discussion, in our judgment, the law appears to be fairly well-
settled and it is this. As a general rule, an order of detention passed by a Detaining
Authority under the relevant 'preventive detention' law cannot be set aside by a Writ
Court at the pre-execution or pre-arrest stage unless the Court is satisfied that there are
exceptional circumstances specified in Alka Subhash Gadia. The Court must be conscious
and mindful of the fact that this is a 'suspicious jurisdiction' i.e. jurisdiction based on
suspicion and an action is taken 'with a view to preventing' a person from acting in any
manner prejudicial to certain
@page-SC1720
activities enumerated in the relevant detention law. Interference by a Court of Law at that
stage must be an exception rather than a rule and such an exercise can be undertaken by a
Writ Court with extreme care, caution and circumspection. A detenu cannot ordinarily
seek a writ of mandamus if he does not surrender and is not served with an order of
detention and the grounds in support of such order.
59. The case on hand, in our considered opinion, does not fall within the category of
exceptional cases and the High Court committed an error of law in setting aside the order
of detention at the pre-execution and pre-arrest stage. The said order, therefore, deserves
to be set aside and is hereby set aside. It is open to the authorities to execute the order of
detention. It is equally open to the detenu to challenge the legality thereof on all available
grounds.
60. Before parting with the matter, we may clarify that all observations made by us in this
judgment are only for the purpose of deciding the legality of the order passed by the High
Court and impugned in the present appeal. We may not be understood to have expressed
any opinion one way or the other on the allegations and counter-allegations by the parties.
It is also made clear that if after the execution of the order, the action is challenged by the
detenu, the Court will decide the case strictly in accordance with law on its own merits
without being inhibited by any observations made either in the decision of the High Court
or in the present judgment.
61. The appeal is accordingly allowed.
Appeal allowed.
AIR 2008 SUPREME COURT 1720 "E. Micheal Raj v. Intelligence Officer, Narcotic
Control Bureau"
(From : 2005 Cri LJ 1817 (Ker))
Coram : 2 PRAKASH PRABHAKAR NAOLEKAR AND LOKESHWAR SINGH
PANTA, JJ.
Criminal Appeal No. 1250 of 2005, D/- 11 -3 -2008.
E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau.
(A) Narcotic Drugs and Psychotropic Substances Act (61 of 1985), S.21 (as amended by
Amendment Act 9 of 2001) - NARCOTIC DRUGS - SENTENCE IMPOSITION -
Imposition of sentence - To be based on content of offending drug in mixture and not on
weight of the mixture as such.
When any narcotic drug or psychotropic substance is found mixed with one or more
neutral substance/s, for the purpose of imposition of punishment it is the content of the
narcotic drug or psychotropic substance which shall be taken into consideration. (Para
16)
The intention of the legislature under the Amending Act of 2001 was to rationalize the
sentence structure so as to ensure that while drug traffickers who traffic in significant
quantities of drugs are punished with deterrent sentence, the addicts and those who
commit less serious offences are sentenced to less severe punishment. Under the
rationalised sentence structure, the punishment would vary depending upon the quantity
of offending material. Thus, it cannot be said that the rate of purity is irrelevant since any
preparation which is more than the commercial quantity of 250 gms. and contains 0.2%
of heroin or more would be punishable under S. 21 (c) Act, because the intention of the
legislature is to levy punishment based on the content of the offending drug in the
mixture and not on the weight of the mixture as such. In the mixture of a narcotic drug or
a psychotropic substance with one or more neutral substance/s, the quantity of the neutral
substance/s is not to be taken into consideration while determining the small quantity or
commercial quantity of a narcotic drug or psychotropic substance. It is only the actual
content by weight of the narcotic drug which is relevant for the purposes of determining
whether it would constitute small quantity or commercial quantity. The intention of the
legislature for introduction of the amendment is to punish the people who commit less
serious offences with less severe punishment and those who commit grave crimes, such
as trafficking in significant quantities, with more severe punishment. (Para 13)
(B) Narcotic Drugs and Psychotropic Substances Act (61 of 1985), S.21 - NARCOTIC
DRUGS - POSSESSION - SENTENCE REDUCTION - Sentence - Appellant, accused
found in possession of 60 gms. of narcotic drug - It is more than 5 gms. i.e. small
quantity, but less than 250 gms. i.e. commercial quantity - Thus, appellant would be
punishable u/S.21(b) - Further, appellant is merely a carrier and is not a kingpin - In
circumstances sentence of accused-appellant reduced to 6 years rigorous imprisonment
with fine of Rs. 20,000/-. (Paras 17, 18)
@page-SC1721
2005 AIR SCW 5075 : AIR 2005 SC 4248 : 2005 Cri LJ 4521 (Disting) 15, 16
(2004) 4 SCC 446 (Ref.) 14
K.V. Vishwanathan, M. Gireesh Kumar, Avjeeth K. Lala, Khwairakpam Nobin Singh, for
Appellant; Vikas Sharma, Ms. Binu Tamta, Ms. Sushma Suri, for Respondent.
Judgement
1
. P. P. NAOLEKAR, J. :-This appeal by special leave is directed against the judgment and
order dated 25.8.2004 of the Kerala High Court in Criminal Appeal No. 185 of 2004
whereby the conviction and sentence of the accused-appellant under Section 21(c) of the
Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the
NDPS Act") was confirmed. reported in 2005 Cri LJ 1817
2. The relevant facts of the case are that on 5.3.2001, the Intelligence Officer was
informed by an informant that two persons with certain drugs would be arriving by a
Tamil Nadu Transport Corporation Bus at Thiruvananthapuram Bus Stand. The Officer
along with other persons and the informant went to the bus stand and waited for the bus.
At about 9.00 a.m., the two accused alighted from the Tamil Nadu Transport Corporation
bus. They were identified by the informant. They were intercepted by the officials. The
officials disclosed their identity and the accused were searched. When asked about
possession of narcotic drugs, it was admitted by the accused that they were carrying 4
kgs. of heroin and they handed over the bag to the Officer. The bag contained two packets
wrapped in Tamil newspapers secured with brown adhesive tape in which light grey
powder was found. Two samples of 5 gms. each from both the drug packets were packed,
sealed and sent for testing to the Laboratory. The accused were arrested, but the second
accused escaped while on the way to produce them before the Magistrate. On 26.3.2001,
the Customs House Laboratory, Cochin sent a report confirming the samples as
answering to the test of crude heroin, a narcotic drug covered under the NDPS Act. The
report further said that the Laboratory was not equipped to conduct a quantitative test.
Thus, the samples were sent for quantitative test. On 22.2.2002, a quantitative test was
done in the Customs Laboratory, Chennai where the purity was tested and the quantitative
test report indicated as follows :
S. No Marking on the cover Lab No. Wt of the sample received with plastic cover
Wt of the remnant received with plastic cover Purity
1. S1 235 5.6g 5.0g 1.4%
2. S3 236 4.9g 4.6g 1.6%
3. The accused-appellant was charged with the offence committed under Section 8(c)
read with Sections 21 and 29 of the NDPS Act by the Intelligence Officer, Narcotic
Control Bureau. The Special Judge for Trial of Cases under the NDPS Act found that the
substance found in possession of the accused was an opium derivative which has been
defined under Section 2(xvi), and under Section 2(xvi)(e) a preparation, containing more
than 0.2% of morphine or diacerulmorphine, is an opium derivative; and that since this
contraband article contained 1.4% and 1.6% heroin it is an opium derivative, and
punishable under Section 21 of the NDPS Act. Since the manufactured drug being carried
weighed 4.07 kg., it would come under Section 21(c) being a commercial quantity, but
since the accused is only a carrier and is not the beneficiary of the transaction, he would
not be awarded the maximum sentence and would be awarded the minimum sentence of
10 years rigorous imprisonment and a fine of rupees one lakh, in default of payment of
fine rigorous imprisonment for one more year. On an appeal being preferred, the High
Court found the accused guilty. The High Court said that Section 21 of the NDPS Act
when read with Section 2(xi) which defines manufactured drug, makes it evident that the
packet seized from the appellant is a manufactured drug. The offence can be in respect of
the manufactured drug as well as preparation of manufactured drug. 'Preparation' has
been defined in Section 2(xx). Again, any mixture of narcotic drug with other substances
will also come within Section 21 of the NDPS Act, so the rate of purity becomes
irrelevant. The purity test does not advance the case of the accused. As per the High
Court, it is the
@page-SC1722
whole quantity of mixture which has to be taken into consideration for imposing the
punishment under Section 21 of the NDPS Act. The High Court maintained the
conviction and sentence awarded by the Special Judge.
4. The only submission made by Shri K.V. Viswanathan, learned counsel for the appellant
is confined to the limited issue relating to sentence of the appellant under Section 21 of
the NDPS Act. As per the learned counsel, the conviction and sentence of the appellant is
contrary to law because the total quantity of contraband seized from him was 4.07 kgs.
Since the purity of heroin is 1.4% and 1.6% respectively in two samples, therefore the
quantity of heroin in possession is only 60 gms. [(1.4+1.6)/2 = 1.5% of 4.07 kgs. = 60
gms.). Thus, the total quantity of heroin seized is below 250 gms., i.e. below the
commercial quantity. It is submitted that it is not the total weight of the substance
allegedly recovered that is material, but the percentage content of heroin translated into
weight that is relevant.
5. On the other hand, Shri Vikas Sharma, learned counsel appearing for the respondent
urged that it is only the weight of the substance found in possession of the appellant and
recovered from him ought to be seen, and once the substance tested positive for heroin,
its percentage content in the substance was irrelevant, the entire substance would be
viewed as a narcotic drug and consequently the total weight of the substance ought to be
taken into consideration for determining whether it was a 'small quantity or a 'commercial
quantity'.
6. The provisions of the NDPS Act were amended by the Narcotic Drugs and
Psychotropic Substances (Amendment) Act, 2001 (Act 9 of 2001) (w.e.f. 2.10.2001),
which rationalized the punishment structure under the NDPS Act by providing graded
sentences linked to the quantity of narcotic drugs or psychotropic substances carried.
Thus, by the Amending Act, the sentence structure changed drastically. 'Small quantity'
and 'commercial quantity were defined under Section 2(xxiiia) and Section 2(viia)
respectively. New Section 21 also provides for proportionate sentence for possessing
small, intermediate and commercial quantities of offending material. As per Entry 56 of
the Notification dated 19.10.2001 issued by the Central Government which deals with
heroin, small quantity has been mentioned as 5 gms. and commercial quantity has been
mentioned as 250 gms. So, the basic question for decision is whether the contravention
involved in this case is small, intermediate or commercial quantity under Section 21 of
the NDPS Act, and whether the total weight of the substance is relevant or percentage of
heroin content translated into weight is relevant for ascertaining the quantity recovered
from the accused.
7. To appreciate the arguments of the parties, the relevant Sections of the NDPS Act have
to be looked into, which are as under:
Section 2 (viia) (inserted by Amending Act 9 of 2001 w.e.f. 2.10.2001)
"Commercial quantity', in relation to narcotic drugs and psychotropic substances, means
any quantity greater than the quantity specified by the Central Government by
notification in the Official Gazette;"
Section 2(xxiiia) (inserted by Amending Act 9 of 2001 w.e.f 2.10.2001)
"'Small quantity', in relation to narcotic drugs and psychotropic substances, means any
quantity lesser than the quantity specified by the Central Government by notification in
the Official Gazette;"
Section 2(xvi)
"'Opium derivative' means -
(a) Medicinal opium, that is, opium which has undergone the processes necessary to
adapt it for medicinal use in accordance with the requirements of the Indian
Pharmacopoeia or any other Pharmacopoeia notified in this behalf by the Central
Government, whether in powder form or granulated or otherwise or mixed with neutral
materials;
(b) Prepared opium, that is, any product of opium by any series of operations designed to
transform opium into an extract suitable for smoking and the dross or other residue
remaining after opium is smoked;
(c) Phenanthrene alkaloids, namely, morphine, codeine, the baine and their salts;
(d) Diacetylmorphine, that is, the alkaloid also known as diamorphine or heroin and its
salts; and
(e) All preparations containing more than 0.2 per cent of morphine or containing any
diacetylmorphine;
@page-SC1723
Section 2 (xi) "'Manufactured drug means -
(a) All coca derivatives, medicinal connabis, opium derivatives and poppy straw
concentrate;
(b) Any other narcotic substance or preparation which the Central Government may,
having regard to the available information as to its nature or to a decision, if any, under
any International Convention, by notification in the Official Gazette, declare to be a
manufactured drug;
but does not include any narcotic substance or preparation which the Central Government
may, having regard to the available information as to its nature or to a decision, if any,
under any International Convention, by notification in the Official Gazette, declare not to
be a manufactured drug."
Section 21. Punishment for contravention in relation to manufactured drugs and
preparations [substituted by the Amending Act 9 of 2001, w.e.f. 2.10.2001]
"Whoever, in contravention of any provision of this Act or any rule or order made or
condition of licence granted thereunder, manufactures, possesses, sells, purchases,
transports, imports inter-State, exports inter-State or uses any manufactured drug or any
preparation containing any manufactured drug shall be punishable, -
(a) where the contravention involves small quantity, with rigorous imprisonment for a
term which may extend to six months, or with fine which may extend to ten thousand
rupees, or with both;
(b) where the contravention involves quantity, lesser than commercial quantity but greater
than small quantity, with rigorous imprisonment for a term which may extend to ten
years, and with fine which may extend to one lakh rupees;
(c) where the contravention involves commercial quantity, with rigorous imprisonment
for a term which shall not be less than ten years but which may extend to twenty years
and shall also be liable to fine which shall not be less than one lakh rupees but which may
extend to two lakh rupees :
Provided that the court may, for reasons to be recorded in the judgment, impose a fine
exceeding two lakh rupees.
8. The Statement of Objects and Reasons concerning the Amending Act of 2001 is as
follows :
"Narcotic Drugs and Psychotropic Substances Act, 1985 provides deterrent punishment
for various offences relating to illicit trafficking in narcotic drugs and psychotropic
substances. Most of the offences invite uniform punishment of minimum ten years'
rigorous imprisonment which may extend up to twenty years. While the Act envisages
severe punishments for drug traffickers, it envisages reformative approach towards
addicts. In view of the general delay in trial it has been found that the addicts prefer not
to invoke the provisions of the Act. The strict bail provisions under the Act add to their
misery.
Therefore, it is proposed to rationalise the sentence structure so as to ensure that while
drug traffickers who traffic in significant quantities of drugs are punished with deterrent
sentences, the addicts and those who commit less serious offences are sentenced to less
severe punishment. This requires rationalisation of the sentence structure provided under
the Act. It is also proposed to restrict the application of strict bail provisions to those
offenders who indulge in serious offences."
9. The entry of the Notification under which the substance found in possession of the
appellant falls is Entry 56 or Entry 239. The relevant portion of the Notification dated
19.10.2001 issued by the Central Government reads as under :
S.O. 1055(E), dated 19-10-2001. - In exercise of the powers conferred by clauses (viia)
and (xxiiia) of section 2 of the Narcotic Drugs and Psychotropic Substances Act, 1985
(61 of 1985) and in supersession of Ministry of Finance, Department of Revenue
Notification S.O. 527(E), dated 16th July, 1996, except as respects things done or omitted
to be done before such supersession, the Central Government hereby specifies the
quantity mentioned in columns 5 and 6 of the Table below, in relation to the narcotic drug
and psychotropic substance mentioned in the corresponding entry in columns 2 to 4 of the
said Table, as the small quantity and commercial quantity respectively for the purposes of
the said clauses of that section
@page-SC1724
Sl. No. Name of Narcotic Drug and Psychotropic SubstanceOther non propriety name
Chemical Name Small Quantity (in gm) Commercial Quantity (in
gm/kg.)
56 Heroin DiacetyImorphine 5 250 gm.
239 Any mixture or preparation that of with or without a neutral material, of any of
the above drugs. .................. * **
* Lesser of the small quantity between the quantities given against the respective narcotic
drugs or psychotropic substances mentioned above forming part of the mixture.
** Lesser of the commercial quantity between the quantities given against the respective
narcotic drugs or psychotropic substances mentioned above forming part of the mixture."
10. The possession of offending substance would be considered an offence punishable
under the NDPS Act, as heroin is an opium derivative as per Section 2(xvi)(e) which says
that "all preparations containing more than 0.2 per cent of morphine or containing any
diacetylmorphine" is an opium derivative. Further, according to Section 2(xi), all opium
derivatives fall under the category of manufactured drug. Thus, we conclude that the
offending substance is an opium derivative and hence a manufactured drug, the
possession of which is in contravention of the provisions of Section 8 of the NDPS Act
which prohibits certain operations to the effect that no person shall produce, manufacture,
possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export
inter-State, import into India, export from India or tranship any narcotic drug or
psychotropic substance.
11. In the present case, the opium derivative which has been found in possession of the
accused-appellant is prohibited under Section 8 of the NDPS Act and thus punishable
under Section 21 thereof. The question is only with regard to the quantum of punishment.
12. As a consequence of the Amending Act, the sentence structure underwent a drastic
change. The Amending Act for the first time introduced the concept of commercial
quantity' in relation to narcotic drugs or psychotropic substances by adding clause (viia)
in Section 2, which defines this term as any quantity greater than a , quantity specified by
the Central Government by notification in the Official Gazette. Further, the term 'small
quantity' is defined in Section 2, clause (xxiiia), as any quantity lesser than the quantity
specified by the Central Government by notification in the Official Gazette. Under the
rationalised sentence structure, the punishment would vary depending upon whether the
quantity of offending material is 'small quantity', 'commercial quantity' or something in-
between.
13. It appears from the Statement of Objects and Reasons of the Amending Act of 2001
that the intention of the legislature was to rationalize the sentence structure so as to
ensure that while drug traffickers who traffic in significant quantities of drugs are
punished with deterrent sentence, the addicts and those who commit less serious offences
are sentenced to less severe punishment. Under the rationalised sentence structure, the
punishment would vary depending upon the quantity of offending material. Thus, we find
it difficult to accept the argument advanced on behalf of the respondent that the rate of
purity is irrelevant since any preparation which is more than the commercial quantity of
250 gms. and contains 0.2% of heroin or more would be punishable under Section 21(c)
of the NDPS Act, because the intention of the legislature as it appears to us is to levy
punishment based on the content of the offending drug in the mixture and not on the
weight of the mixture as such. This may be tested on the following rationale. Supposing 4
gms. of heroin is recovered from an accused, it would amount to a small quantity, but
when the same 4 gms. is mixed with 50 kgs. of the powered sugar, it would be quantified
as a
@page-SC1725
commercial quantity. In the mixture of a narcotic drug or a psychotropic substance with
one or more neutral substance/s, the quantity of the neutral substance/s is not to be taken
into consideration while determining the small quantity or commercial quantity of a
narcotic drug or psychotropic substance. It is only the actual content by weight of the
narcotic drug which is relevant for the purposes of determining whether it would
constitute small quantity or commercial quantity. The intention of the legislature for
introduction of the amendment as it appear to us is to punish the people who commit less
serious offences with less severe punishment and those who commit grave crimes, such
as trafficking in significant quantities, with more severe punishment.
14. In the case of Ouseph alias Thankachan v. State of Kerala, (2004) 4 SCC 446, this
Court in para 8 has held as under :
"The question to be considered by us is whether the psychotropic substance was in a
small quantity and if so, whether it was intended for personal consumption. The words
"small quantity" have been specified by the Central Government by the notification dated
23-7-1996. Learned counsel for the State has brought to our notice that as per the said
notification small quantity has been specified as 1 gram. If so, the quantity recovered
from the appellant is far below the limit of small quantity specified in the notification
issued by the Central Government. It is admitted that each ampoule contained only 2 ml
and each ml contains only .3 mg. This means the total quantity found in the possession of
the appellant was only 66 mg. This is less than 1/10th of the limit of small quantity
specified under the notification."
From the aforesaid decision, we find that the Court has taken the quantity of the narcotic
drug or psychotropic substance found in the mixture, relevant for the purpose of
imposition of punishment.
15
. The learned counsel for the respondent placed reliance on the decision of this Court in
Amarsingh Ramjibhai Barot v. State of Gujarat, (2005) 7 SCC 550, in support of his
contention that the entire material found in possession irrespective of the content of the
offending material has to be taken into consideration while imposing the punishment. In
Amarsingh case (supra), two persons, namely, Amarsingh and Danabhai were
apprehended. Amarsingh was found carrying a plastic bag which contained a black-
coloured liquid substance weighing 920 gms. Similarly, 4.250 kg. of grey-coloured
substance was recovered from Danabhai. Samples were sent to the Forensic Science
Laboratory (FSL). The FSL report indicated that the sample from Amarsingh was opium
as described in the NDPS Act containing 2.8% anhydride morphine apart from pieces of
poppy flowers and the sample relating to Danabhai was reported to be opium as described
in the NDPS Act having 1.2% anhydride morphine and also containing pieces of poppy
flowers. Both the accused were charged and tried under Sections 15, 17 and 18 read with
Section 29 of the NDPS Act. The High Court found that the conviction under Sections 17
and 18 read with Section 29 of the NDPS Act was not correct, but convicted Amarsingh
under Section 21(c) and also under Section 21(c) read with Section 29 of the NDPS Act,
for individually being in possession of opium and for being jointly, in conspiracy with the
other accused. The High Court found the accused possessed of commercial quantity and
convicted and sentenced him for 10 years rigorous imprisonment plus fine of Rs. 1 lakh.
Being aggrieved, Amarsingh approached this Court. This Court has held in para 14 of the
judgment as under : 2005 AIR SCW 5075
"There does not appear to be any acceptable evidence that the black substance found with
the appellant was "coagulated juice of the opium poppy" and "any mixture, with or
without any neutral material, of the coagulated juice of the opium poppy". FSL has given
its opinion that it is "opium as described in the NDPS Act." That is not binding on the
court."
The Court further held that the evidence also does not indicate that the substance
recovered from the appellant would fall within the meaning of sub-clauses (a), (b), (c) or
(d) of Section 2(xvi), but residuary clause (e) would apply and consequently it would
amount to opium derivative as all opium derivatives fall within the expression
'manufactured drugs.' Thus, the Court arrived at the conclusion that what was recovered
from the appellant was manufactured drug and the offence proved against the appellant
fell clearly within Section 21 of the NDPS Act for illicit possession of manufactured
drug. The Court concluded
@page-SC1726
and held in para 17 as under :
"In respect of opium derivatives (at SI. No. 93) in the said notification, 5 grams is
specified as "small quantity" and 250 grams as "commercial quantity", The High Court
was, therefore, right in finding that the appellant was guilty of unlawful possession of
"commercial quantify" of a manufactured drug. Consequently, his case would be covered
by clause (c) and not clause (a) or (b) of Section 21 of the NDPS Act."
This Court has, therefore, upheld the imposition of minimum punishment under Section
21(c) of 10 years rigorous imprisonment with fine of Rs. 1 lakh.
16
. On going through Amarsingh case (supra), we do not find that the Court was
considering the question of mixture of a narcotic drug or psychotropic substance with one
or more neutral substance/s. In fact that was not the issue before the Court. The black-
coloured liquid substance was taken as an opium derivative and the FSL report to the
effect that it contained 2.8% anhydride morphine was considered only for the purposes of
bringing the substance within the sweep of Section 2(xvi)(e) as 'opium derivative' which
requires a minimum 0.2% morphine. The content found of 2.8% anhydride morphine was
not at all considered for the purposes of deciding whether the substance recovered was a
small or commercial quantity and the Court took into consideration the entire substance
as an opium derivative which was not mixed with one or more neutral substance/s. Thus,
Amarsingh case (supra) cannot be taken to be an authority for advancing the proposition
made by the learned counsel for the respondent that the entire substance recovered and
seized irrespective of the content of the narcotic drug or psychotropic substance in it
would be considered for application of Section 21 of the NDPS Act for the purpose of
imposition of punishment. We are of the view that when any narcotic drug or
psychotropic substance is found mixed with one or more neutral substance/s, for the
purpose of imposition of punishment it is the content of the narcotic drug or psychotropic
substance which shall be taken into consideration. 2005 AIR SCW 5075
17. In the present case, the narcotic drug which was found in possession of the appellant
as per the Analyst's report is 60 gms. which is more than 5 gms., i.e. small quantity, taut
less than 250 gms., i.e. commercial quantity. The quantity of 60 gms. is lesser than the
commercial quantity, but greater than the small quantity and, thus, the appellant would be
punishable under Section 21(b) of the NDPS Act. Further, it is evident that the appellant
is merely a carrier and is not a kingpin.
18. In these circumstances, the ends of justice would be subserved if we reduce the
sentence of the accused-appellant to 8 years rigorous imprisonment with fine of Rs.
20,000/- and in default of payment of fine rigorous imprisonment for six months. We
order accordingly.
Order accordingly.
AIR 2008 SUPREME COURT 1726 "P. B. Krishnankutty Nair v. Regional Director, ESI
Corpn."
(From : Kerala)*
Coram : 2 TARUN CHATTERJEE AND HARJIT SINGH BEDI, JJ.
Civil Appeal No. 6497 of 2001, D/- 7 -3 -2008.
P.B. Krishnankutty Nair v. The Regional Director, ESI Corpn. and Anr.
Employee's State Insurance Act (34 of 1948), S.46(c) - EMPLOYEES STATE
INSURANCE - Disability benefit - Entitlement - Claimant was employee up to 30th
Sept., 1989 - Suffered injuries in accident on 15th June, 1990 - Would not be entitled to
any benefit of disablement - Notwithstanding fact that his contribution period and his
status as insured person continued up to 30th June, 1990. (Para 7)
C. Jayaraj, Ms. Malini Poduval, for Appellant; C.S. Rajan, Sr. Advocate, V.J. Francis,
Anupam Mishra, for Respondents.
* MFA No. 169 of 1992, D/- 28-2-2000 (Ker).
Judgement
1. HARJIT SINGH BEDI, J. :-This appeal arises out of the following facts.
2. The appellant who was a covered employee under the ESI scheme met with an
accident in the course of his employment on 15th June, 1990. An accident report was sent
by the employer respondent No. 2 in the present appeal to the respondent Corporation.
The Corporation however refused to treat the injuries sustained, as injuries suffered
during employment on the plea that on the date of the accident the employee was not
covered under the ESI scheme. It was also communicated to the employee by a
@page-SC1727
communication dated 4th December, 1990 that he had ceased to be an employee with
effect from 1st October, 1989 and therefore he would not be entitled to any benefit for the
dl§ability but would be eligible for sickness benefits for the period 16th June, 1990 to
30th June, 1980. The employee thereupon filed an application before the Employees
Insurance Court. Alappuzha claiming the benefit of disability on account of the injuries
that he had suffered. In the counter statement filed by the Corporation, it was pointed out
that the employee as an insured person had made contributions up to 30th September,
1989 and that he ceased to be an employee with effect from 1st October, 1989 as his
salary had exceeded Rs. 1600/-per month from 1st October, 1989 and as such was not
entitled to any benefit towards disability. The Employees Insurance Court in its order
dated 14th November, 1991 examined the various provisions of the Employees State
Insurance Act 1948 (hereinafter called the "Act") and in particular the definition of
'employee' and 'insured person' under section 2(9) and 2(14) respectively as well as
section 46 that dealt with 'benefits' and ultimately concluded that although the claimant
ceased to be an employee with effect from 30th September, 1989 he was nevertheless an
"Insured person" in terms of section 2(14) as he had paid contributions towards his
insurance which would cover his case from 1st April, 1989 to 30th September, 1989
though he continued to be an insured person up to 30th June, 1990 and as such his claim
for the injury on 15th June was fully justified under the Act.
3. Aggrieved by the order of the Employees Insurance Court, the Corporation preferred
an appeal before the High Court of Judicature at Kerala. The High Court in its judgment
dated 28th February, 2000 noted that the facts of the case were not disputed and relying
on a decision of the Division Bench of that very court in MFA 621/1986 (Regional
Director, ESI Corporation vs. K.K. Surendra Babu) observed that if a person was not an
employee during a particular contribution period and an accident had taken place during
such period, he would not be entitled to ESI benefits. Having held above, the court
further concluded that as the accident in the present case had also occurred after the
claimant had ceased to be an employee, though within the contribution period, he was not
entitled to the benefit of the payment of Insurance from the Corporation. The appeal was
accordingly allowed and the order of the Employees Insurance Court dated 14th
November, 1991 was set aside. It is in this situation that the matter is before us in appeal
at the instance of the employee.
4. Certain facts are admitted on record : the date of accident 15th June 1990, and that the
contribution had been made for the period 1st April, 1989 to 30th September, 1989 which
brought the contribution period to 30th June, 1990. In these admitted facts, the learned
counsel for the appellant has raised several arguments before us with reference to the
statutory provisions. He has referred us to the definitions of 'employee' in section 2(9) of
the Act and to 'insured person' in Section 2 (14) of the Act and to section 46 which talks
about the benefits for an insured person in ease of injury or sickness, and has argued that
as the claimant was an insured person up to the end of the contribution period i.e. up to
30th June 1990, the accident having taken place within that period, the Corporation was
liable to make payment to him. As against this, the learned counsel for the respondent has
argued that the sine qua non for determining the eligibility for the payment of insurance
under the Act was that a person was required to be an employee on the date of the
accident and the claimant had admittedly ceased to be an employee with effect from 1st
October, 1989 and thus, he was not entitled to the payment of any disability benefit.
5. At the very outset, we may point out that the judgment relied upon by the Division
Bench in reaching the impugned decision has not been cited before us by any of the
counsel. We, therefore, do not have the benefit of the wisdom of the Division Bench in
those cases and have accordingly examined the matter ourselves.
6. The matter must hinge on the various provisions brought to our notice by the learned
counsel. We produce hereinbelow Sections 2(9), 2 (14) and Section 46 of the Act :
"Sec. 2(9) "employee" means any person employed for wages in or in connection with
the work of a factory or establishment to which this Act applies and
(i) who is directly employed by the principal employer on any work of, or incidental
@page-SC1728
or preliminary to or connected with the work of, the factory or establishment, whether
such work is done by the employee in the factory or establishment or elsewhere; or
(ii) who is employed by or through an immediate employer on the premises of the factory
or establishment or under the supervision of the principal employer or his agent on work
which is ordinarily part of the work of the factory or establishment or which is
preliminary to the work carried on in or incidental to the purpose of the factory or
establishment; or
(iii) whose services are temporarily lent or let on hire to the principal employer by the
person with whom the person whose services are so lent or let on hire has entered into a
contract of service;
Sec. 2(14) "insured person" means a person who is or was an employee in respect of
whom contributions are or were payable under this Act and who is, by reason thereof,
entitled to any of the benefits provided by this Act.
Sec. 46. Benefits. (1) Subject to the provisions of the Act, the insured persons [their
dependants or the persons hereinafter mentioned, as the case may be,] shall be entitled to
the following benefits, namely
(a) periodical payment to any insured person in case of his sickness certified by a duly
appointed medical practitioner [or by any person possessing such qualifications and
experience as the Corporation may, by regulations, specify in this behalf (hereinafter
referred to as sickness benefit);
(b) periodical payments to an insured woman in case of confinement or miscarriage or
sickness arising out of pregnancy, confinement, premature birth of child or miscarriage,
such woman being certified to be eligible for such payments by an authority specified in
this behalf by the regulations (hereinafter referred to a maternity benefits);]
(c) periodical payments to an insured person suffering from disablement as a result of an
employment injury sustained as an employee under this Act and certified to be eligible
for such payments by an authority specified in this behalf by the regulations (hereinafter
referred to as disablement benefit);
(d) periodical payments to such dependants of an insured person who dies as a result of
an employment injury sustained as an employee under this Act, as are entitled to
compensation under this Act (hereinafter referred to as dependants' benefit);
(e) medical treatment for an attendance on insured persons (hereinafter referred as to
medical benefit; and
(f) payment to the eldest surviving member of the family of an insured person who has
died, towards the expenditure on the funeral of the deceased insured person, or, where the
insured person did not have a family or was not living with his family at the time of his
death, to the person who actually incurs the expenditure on the funeral of the deceased
insured person (to be known as [funeral expenses]
Provided that the amount of such payment shall not exceed [such amount as may be
prescribed by the Central Government] and the claim for such payment shall be made
within three months of the death of the insured person or within such extended period as
the Corporation or any officer or authority authorized by it in this behalf may allow.]
(2) The Corporation may, at the request of the appropriate Government, subject to such
conditions as may be laid down in the regulations, extend the medical benefits to the
family of an insured person."
7. An examination of the provisions would show that the claimant was an employee up to
30th September, 1989 and ceased to be so on the next day as his salary had exceeded Rs.
1600/- per month which was the cut off wage fixed under the Act at that time.
Admittedly, also the claimant was an insured person and the only difference between the
two contesting parties is with regard to the significance of the contribution period which
was to end on 30th June, 1990. For determining as to whether an employee was entitled
to the benefit under the Act, reference has to be made to section 46(c) which would cover
the present case. Section 46(c) specifically provides for two cumulative conditions for its
applicability i) the claimant must be an insured person and ii) that such an injury must be
sustained when he was an employee. We therefore find that as the injury had been
suffered after the claimant ceased to be an employee, he would not be entitled to any
benefit of disablement notwithstanding the fact that his contribution period and his status
as an insured person
@page-SC1729
continued up to 30th June, 1990. The Corporation has been taken pains to point out that
certain benefits which would accrue to the claimant such as the benefit of sickness, has
already been given to him. In this view of the matter, we find no merit in the appeal. It is
accordingly dismissed. No costs.
Appeal dismissed.
AIR 2008 SUPREME COURT 1729 "Sat Pal Puri v. Punjab State Electricity Board"
(From : Punjab and Haryana)*
Coram : 2 S. B. SINHA AND V. S. SIRPURKAR, JJ.
Civil Appeal No. 2235 of 2008 (arising out of SLP (C) No. 10133 of 2003) with C. A.
Nos. 6097, 6602, 6599 and etc. etc. of 2003, 2172, 2171, 2170, 2169, 2168, 2167, 2166,
2164, 2165, 2236, 2237, 2233-34, 2238 and 2242 of 2008, @ SLP (C) Nos. 8270, 9291 of
2004, 19851, 21645 of 2003; 455, 2577 of 2005 and etc. etc., D/- 21 -2 -2008.
Sat Pal Puri v. Punjab State Electricity Board and Ors.
Electricity (Supply) Act (54 of 1948), S.79(c) - Industrial Disputes Act (14 of 1947),
S.33C(2) - ELECTRICITY - INDUSTRIAL DISPUTE - SUPREME COURT - APPEAL
- Claim for extra wages - For working on non-working Saturdays and Sundays - Claim
based on decision in 2001 AIR SCW 4703 - Claimant-employees, however, governed by
statutory rules framed by Electricity Board - Therefore not entitled to file applications
u/S.33-C(2) of I.D. Act, 1947 - Thus said decision of Supreme Court, in facts would not
be applicable - Rejection of claim - Not liable to be interfered with.
2001 AIR SCW 4703, Ref.
Constitution of India, Art.133. (Para 12)
2001 AIR SCW 4703 (Ref.) 2, 3, 4, 12
A.K. Ganguli, Sr. Advocate, K.G. Bhagat, Manohar Singh Bakshi, Lakhbir Singh Bakshi,
Debasis Misra, Ajay Majithia, Rajesh Kumar, Ravindra Keshavrao Adsure, Dr. Kailash
Chand, Sudhir Nandrajog, Bimal Roy Jad, S.K. Sabharwal, Harinder Mohan Singh,
Kaushal Yadav, Durgesh Yadav, Kuldip Singh, R.K. Pandey, Madhukar Choudhary,
Naresh Bakshi, Ms. Shalu Sharma, R.C. Kaushik, Arun K. Sinha, K.L. Mehta, (for M/s.
K.L. Mehta and Co.), K.J. John, Yash Pal Dhingra, P.K. Goklaney, A.P. Mohanty, Jagjit
Singh Chhabra, Tarun Gupta, Ms. Nidhi Gupta, Ms. S. Janani, Dharmendra Kumar Sinha,
for the Appearing Parties.
* R. A. No. 64 of 2003 in CWP No. 19838 of 2002, D/- 11-3-2003 (P and H).
Judgement
S. B. SINHA, J. :- Leave is granted in the SLPs.
2
. Appellants filed a writ petition before the Punjab and Haryana High Court at
Chandigarh claiming parity in the matter of renumeration for working on Saturdays and
Sundays in terms of the decision of this Court in Municipal Employees Union (Regd.),
Sirhind and Ors. v. State of Punjab and Ors., (2000) 9 SCC 432, wherein it was opined
that in the absence of any express provision to the contrary in Municipal bye-laws, the
octroi staff could not be denied the benefit of non-working Saturdays and, thus, when
required to work on such Saturdays, they could be granted extra wages in lieu thereof.
However, this Court further opined that factual foundation for such claim was required to
be established. It was also opined that in the event if the employees had filed applications
under Section 33-C(2) of the Industrial Disputes Act, the same may be entertained.
2001 AIR SCW 4703
3. The Division Bench of the High Court in some cases even without notice, allowed the
writ applications filed by the workmen opining that the State of Punjab cannot deny the
said benefit to the employees of other departments. Respondent-Punjab State Electricity
Board filed an application for review of the said judgment and by reason of the impugned
judgment, the Division Bench of the High Court held that the decision of this Court in
Municipal Employees Union (supra) is not applicable. The appellants are, thus, before us.
4. The short question which arises for our consideration is as to whether the decision of
this Court in Municipal Employees Union (supra) is applicable to the facts and
circumstances of this case. The Punjab State Electricity Board was constituted and
incorporated in terms of Sections 5 and 12 of the Electricity (Supply) Act, 1948 (for
short, 1948 Act). Under Section 79(c) of the 1948 Act, the Board subject to compliance of
the statutory requirements contained therein is entitled to frame its own regulations. It is
permissible for the Board to frame different regulations for different categories of
employees. It is a department of the State of Punjab.
@page-SC1730
5. It is stated that Appellants herein belong to the technical category, service grade III,
requiring to perform field duties. Supply of electricity is a public utility function of the
Board. The Board therefore is required to have technical staff at their disposal, 24 hours a
day, seven days a week.
6. It has been contended before us that in fact several regulations have been framed by
the Board in this behalf. Several agreements have also been entered into by and between
the Union and the Board. Some of the employees are also governed by the provisions of
the 1948 Act.
7. Our attention has also been drawn to the fact that three categories of workmen are
governed by different terms and conditions of service in regard to enjoyment of holidays;
viz.
a) Technical Staff (Regular) Work-charged covered on the Factories Act 1948.
b) Regular Technical Field Staff not covered under the Factories Act.
c) Work-charged employees not covered under the Factories Act.
8. It has also been stated that local outdoor duty allowance (LODA) to different
categories of Technical/Field staff employees working on different duties, e.g. those
working in the operations and R.E. Divisions, construction organizations are paid. The
quantum of allowance is revised from time to time. Our attention has further been drawn
to a circular letter dated 5.4.1972, from a perusal whereof it appears that technical field
staff would be entitled to the holidays in a calendar year as stipulated therein, namely,
i) Saturdays on alternate months - not exceeding five.
ii) Half the number of Gazetted Holidays notified by the Board for the other staff.
9. We must however notice that the Punjab State Electricity Board had issued a circular
letter dated 27.10.1986 which is in the following terms :
In compliance with the instructions issued vide this office order No.432/PSEB, dated
24.05.1982, it is informed that all the officers of the Punjab State Electricity Board shall
function from 9.00 a.m. to 5.00 p.m. from Monday to Friday with lunch break from 1.30
p.m. to 2.00 p.m. i.e. the same office timings of the Government of Punjab. The offices of
the Electricity Board shall remain closed on all the Saturdays and Sundays.
2. The same holidays shall be observed in the offices of the Punjab State Electricity
Board as are being observed in the office of the Punjab Government."
10. A bare perusal of the said circular dated 27.10.1986 would clearly show that the same
would be applicable only in respect of the officers and employees working in the office of
the Electricity Board and not the Field Staff. The circular letter dated 5.4.1972 has not
been repealed by circular letter dated 27.10.86.
11. In view of the fact that the technical staff of the Board are governed by regulations
framed under Section 79(c) of the 1948 Act the appellants herein do not have any existing
legal right so as to enable them to file an application under Section 33-C(2) of the
Industrial Disputes Act, 1947.
12
. We have noticed herein-above that even in Municipal Employees Union's case (supra),
this Court opined that the octroi staff could be entitled to the said benefit of non-working
Saturdays and when required to work on such Saturdays, were entitled to extra wages in
lieu thereof, if they are not governed by any of the rule. In the case the appellants being
governed by statutory rules, they would not be entitled to file applications under Section
33-C(2) of the 1947 Act. 2004 AIR SCW 4703
13. For the aforementioned reasons, we are of the opinion that the impugned judgment
and order of the High Court does not suffer from any legal infirmity. These appeals are,
therefore, dismissed. No costs.
CIVIL APPEAL NOS. 7982, 1929, 2355, 2352, 1840, 1928, 1926, 1918, 1924, 1925,
1836, 4428, 4435, 4436, 4437, 6595, 4439, 4440, 4443, 6102 and 6594 OF 2003 AND
Civil Appeal No. 2238/2008 @ SLP(C) No. 9026/03 Civil Appeal No. 2242/2008 @
SLP(C) No. 9284/04
14. Leave is granted in the SLPs.
15. It is stated by the learned counsel for the appellants that the appeals above-mentioned
have been covered by order dated 14.2.2008 passed by this Court in Civil Appeal No.
1476/2003 and other connected appeals. These appeals are disposed of accordingly.
Order accordingly.
@page-SC1731
AIR 2008 SUPREME COURT 1731 "S. K. Alagh v. State of U. P."
(From : Allahabad)*
-2008.
S.K. Alagh v. State of U.P. and Ors.
Penal Code (45 of 1860), S.406 - BREACH OF TRUST - COMPANY - Criminal breach
of trust - Demand drafts drawn in name of company for supply of goods - Allegation that
company neither sent goods nor returned money - Complaint u/S.406 - Managing
Director of Company cannot be said to have committed offence u/S.406 - In absence of
any provision laid down under statute, a Director of a Company or an employee cannot
be held to be vicariously liable for any offence committed by company itself.
Crl. Misc. Appln. No. 6170 of 2002, D/-16-04-2007 (All.), Reversed. (Para 20)
2007 (11) Scale 318 (Foll.) 21
2006 AIR SCW 4582 : AIR 2006 SC 3086 : 2006 Cri LJ 4602 : 2006 CLC 1354 (Foll.)
20
R.F. Nariman, Sr. Advocate, Goodwill Indeevar, for Appellant; Ratnakar Dass, Shalini
Dass, Sr. Advocates, Anuvrat Sharma, Pramod Swarup, Prashant Chaudhary, Bharat Ram
and M.C. Dhingra, for Respondents.
* Cri. Misc. Appln. No. 6170 of 2002, D/- 16-4-2007 (All)
Judgement
1. S. B. SINHA, J. :-Leave granted.
2. M/s. Akash Traders was an Area Wholesale Dealer of Britannia Industries Limited (the
Company) for Azamgarh, U.P. Dealership of Respondent No. 2 was terminated by the
said company. It was earlier informed that goods will be delivered only upon receipt of
demand drafts issued by it. Complainant sent two demand drafts for a sum of Rs. 18,000/-
and Rs.1,50,000/- for supply of goods on 14.9.2000 despite the fact that the dealership
had been terminated earlier.
3. The said demand drafts were sent to the appellant through the local Sales Incharge of
the Company. It is stated that the complainant refused to take the same back.
4. A new Area Wholesaler for Azamgarh was appointed by the company.
5. A demand was made by the complainant to deliver goods by a letter dated 24.9.2000
stating that the company owes him a sum of Rs.1,00,000/-. The stand of the company that
his dealership had been terminated was reiterated by a letter dated 25.9.2000.
6. Ashok Kumar Aggarwal, purported to be the proprietor of the firm M/s. Akash Traders,
filed a complaint petition in the court of Chief Judicial Magistrate, Azamgarh against the
appellant herein for commission of an offence under Section 406 of the Indian Penal
Code. Britania Industries Ltd. was not impleaded as an accused therein.
7. On or about 17.2.2001, i.e., after filing of the complaint petition, the dealer accepted
the said demand drafts being dated 8.1.2002 for a sum of Rs. 1,68,000/-. On or about
25.2.2001, Ashok Kumar Aggarwal, the original complainant expired. A substitution
application was filed by the second respondent-Alok Kumar Aggarwal on or about
19.4.2001.
8. Inter alia, relying on or on the basis of the allegations made in the complaint petition
that 'the company with mala fide intention neither sent the goods, nor returned the money'
an order for summoning the appellants was passed on 8.5.2001. A publication to that
effect was also made in an article in a local newspaper.
9. An application for recalling the order summoning before the learned Chief Judicial
Magistrate was filed by the appellant. The learned Chief Judicial Magistrate, by an order
dated 13.12.2001 discharged the accused in terms of Section 245(2) of the Code of
Criminal Procedure, holding :
"From the perusal of the record, this fact has come to light that in between the
complainant M/s. Akash Traders, Azamgarh and Britannia Industries Ltd., Kolkata an
agreement was made. M/s. Akash Traders were the authorized agent of Britannia
Industries Ltd. and according to terms and conditions of the Agreement, Britannia
Industries Ltd. used to supply biscuit to M/s. Akash Traders, Azamgarh. On 8.9.2000,
Britannia Industries Ltd. terminated the agency regarding agreement as a result of which
in between the parties dispute arose. It is the submission of the complainant that on
13.9.2001 bank draft of Rs. 1,68,000/- was sent in favour of Britannia Industries Ltd.
@page-SC1732
but on behalf of the accused the above amount did not return till 7.2.2001 to the
complainant. The pleading on behalf of the accused is that the bank draft of Rs.
1,68,000/- was returned to M/s. Akash Traders on 8.1.2001 and its payment was received
by the complainant on 19.2.2001 under protest. Both the parties regarding the above
reference after the case being decided this legal position has been made clear that if in
any matter civil or criminal case is made out then on the basis of obtaining civil relief the
proceedings of the suit could not be terminated. In the present matter, it has to be decided
that whether in between both the parties during the business transactions prima facie
criminal case was found? If in the present case any criminal case is not found then under
Section 245(2) Cr.P.C. the accused could be released at any stage. After the termination of
agreement in between the accused and the complainant regarding agency on 13.9.2001
bank draft for an amount of Rs. 1,68,000/- was sent to Britannia Industries Ltd. for the
supply of biscuits. Prior to this also agreement dated 8.9.2000 has already been
terminated regarding the agency in favour of M/s. Akash Traders Azamgarh. The
complainant for receiving back an amount of Rs. 1,68,000/-sent letters dated 11.10.2000
and 21.10.2000 but till 7.2.2001, the complainant did not receive back the above amount
of Rs. 1,68,000/-. But from the perusal of the photo copy of the letter enclosed with the
file of bank draft of State Bank of India, Keshavpuram, Delhi it has become clear that
bank draft No.597805 dated 8.1.2001 for an amount of Rs. 1,68,000/ had already been
prepared in favour of M/s. Akash Traders, Azamgarh and after the departmental
proceedings of clearance on 19.2.2001 the complainant had received back the amount on
19.2.2001. Thus, it is clear that the applicant/accused had transferred an amount of
Rs.1,68,000/- on 8.1.2001 in favour of the complainant M/s. Akash Traders through Bank
Draft, thus, in transaction whatever delay was made in returning back the amount of bank
draft that has been committed due to proceedings relating to payment being done due to
banking process and looking to the aforesaid facts it becomes clear that on the side of
applicant/accused there was no intention of criminal misappropriation and, thus, there is
no appropriate basis to initiate any action against the accused.
Therefore, under Section 245(2) Cr.P.C. the proceedings of the case are terminated and
the accused is released."
10-11. A revision application was filed thereagainst by the complainant which, by reason
of an order dated 5.6.2002, was allowed, stating :
"It is clear from the perusal of the file that the learned Chief Judicial Magistrate in the
impugned order dated 13.12.2001 has not granted any opportunity of adducing the
evidences in detail under the provisions of Section 244 Cr.P.C. but by not granting any
opportunity to adduce the evidences by the complainant under Section 244 Cr.P.C. has
passed the impugned order under the provisions of Section 245(2) Cr.P.C. which is not
legal and proper. Under the provisions of Section 244 Cr.P.C.the complainant must be
granted opportunity of filing the evidences in detail as per the law. Under the above
provisions, the charges are framed against the accused persons after the evidences are
taken on record otherwise not, that is to say, passing of order under Section 245 Cr.P.C.
would be proper and justifiable."
12. An application filed by the appellant before the High Court in terms of Section 482 of
the Code of Criminal Procedure was dismissed by the High Court by reason of the
impugned judgment, stating :
"From the perusal of the allegations made against the applicants and from the perusal of
the impugned order, it appears that prima facie offence is made out against the applicant
and there is no procedural mistake in taking cognizance and summoning the applicants,
therefore, the prayer for quashing the impugned orders dated 8.5.2001 passed by the
learned Magistrate, Azamgarh and 5.6.2002 passed by the learned Additional Sessions
Judge, Fast Track Court No.2, Azamgarh is refused.
The interim stay order dated 3.7.2002 is vacated.
Accordingly, this application is dismissed."
13. The short question which arises for consideration is as to whether the complaint
petition, even if given face value and taken to be correct in its entirety, disclosed an
offence as against the appellant under Section 406 of the Indian Penal Code.
14. Section 405 defines 'criminal breach of trust' to mean :
@page-SC1733
"Section 405. - Criminal breach of trust - Whoever, being in any manner entrusted with
property, or with any dominion over property, dishonestly misappropriates or converts to
his own use that property, or dishonestly uses or disposes of that property in violation of
any direction of law prescribing the mode in which such trust is to be discharged, or of
any legal contract, express or implied, which he has made touching the discharge of such
trust, or wilfully suffers any other person so to do, commits "criminal breach of trust"."
15. Appellant No. 1 is the Managing Director of the Company. Respondent No. 3 was its
General Manager. Indisputably, the company is a juristic person. The demand drafts were
issued in the name of the company. The company was not made an accused. The
dealership agreement was by and between M/s. Akash Traders and the company.
16. Mr. Pramod Swarup, learned counsel appearing on behalf of Respondent No.2, in
support of the order passed by the learned Chief Judicial Magistrate as also the High
Court, submitted that as, prima facie, the appellant was in charge of and was in control of
the business of the company, he would be deemed to be liable for the offence committed
by the company,
17. Indian Penal Code, save and except some provisions specifically providing therefor,
does not contemplate any vicarious liability on the part of a party who is not charged
directly for commission of an offence.
18. A criminal breach of trust is an offence committed by a person to whom the property
is entrusted.
19. Ingredients of the offence under Section 406 are :
"(1) a person should have been entrusted with property, or entrusted with dominion over
property;
(2) that person should dishonestly misappropriate or convert to his own use that property,
or dishonestly use or dispose of that property or willfully suffer any other person to do so;
(3) that such misappropriation, conversion, use or disposal should be in violation of any
direction of law prescribing the mode in which such trust is to be discharged, or of any
legal contract which the person has made, touching the discharge of such trust."
20
. As, admittedly, drafts were drawn in the name of the company, even if appellant was its
Managing Director, he cannot be said to have committed an offence under Section 406 of
the Indian Penal Code. If and when a statute contemplates creation of such a legal fiction,
it provides specifically therefor. In absence of any provision laid down under the statute,
a Director of a company or an employee cannot be held to be vicariously liable for any
offence committed by the company itself. (See Sabitha Ramamurthy and Anr. v. R.B.S.
Channabasavaradhya [(2006) 10 SCC 581]}.2006 AIR SCW 4582
21. We may, in this regard, notice that the provisions of the Essential Commodities Act,
Negotiable Instruments Act, Employees' Provident Funds and Miscellaneous Provisions
Act, 1952 etc. have created such vicarious liability. It is interesting to note that Section
14-A of the 1952 Act specifically creates an offence of criminal breach of trust in respect
of the amount deducted from the employees by the company. In terms of the explanations
appended to Section 405 of the Indian Penal Code, a legal fiction has been created to the
effect that the employer shall be deemed to have committed an offence of criminal breach
of trust. Whereas a person in charge of the affairs of the company and in control thereof
has been made vicariously liable for the offence committed by the company along with
the company but even in a case falling under Section 406 of the Indian Penal Code
vicarious liability has been held to be not extendable to the Directors or officers of the
company. {See Maksud Saiyed v. State of Gujarat and Ors. [2007 (11) SCALE 318]}.
22. The High Court, therefore, committed a manifest error in passing the impugned
judgment.
23. For the reasons aforementioned, the impugned judgment cannot be sustained. It is set
aside accordingly. The appeal is allowed. Respondent No. 2 is liable to bear the costs of
the appellant for causing harassment to him which is quantified at Rs.1,00,000/- (Rupees
one lac only).
Appeal allowed.
@page-SC1734
AIR 2008 SUPREME COURT 1734 "Oriental Insurance Company Ltd. v. Jashuben"
(From : Gujarat)
Civil Appeal No. 1272 of 2008 (arising out of SLP (C) No. 7304 of 2007), D/- 14 -2
-2008.
Oriental Insurance Company Ltd. v. Jashuben and Ors.
Motor Vehicles Act (59 of 1988), S.168 - MOTOR VEHICLES - NEGLIGENCE -
Compensation - Determination - Salary of deceased not revised with retrospective effect
on date of death of deceased - Only because such salary was revised at a later point of
time, same by itself would not have been factor which could have been taken into
consideration for determining amount of compensation - What would have been income
of deceased on date of retirement was not relevant factor.
First Appeal No. 4586 of 2006, D/-22-11-2006 (Guj), Reversed. (Paras 12, 25)
2008 AIR SCW 143 : AIR 2008 SC 845 : 2008 (1) ALJ 746 (Ref.) 24
2007 AIR SCW 1884 (Ref.) 23
2006 AIR SCW 1116 : AIR 2006 SC 1255 (Ref.) 20
2005 AIR SCW 1801 : AIR 2005 SC 2157 (Ref.) 19
2005 AIR SCW 2542 : AIR 2005 SC 2985 (Ref.) 18
2001 AIR SCW 1074 : AIR 2001 SC 1333 (Ref.) 16
1996 AIR SCW 1369 : AIR 1996 SC 1274 (Ref.) 15
1994 AIR SCW 1356 : AIR 1994 SC 1631 (Ref.) 14, 15
AIR 1985 SC 106 (Ref.) 17
Pankaj Seth and Ms. Manjeet Chawla, for Appellant; D.G. Karia, Sr. Advocate, Ms.
Manish T. Karia and Sunil Kumar Verma, for Respondents.
Judgement
S. B. SINHA, J. :- Leave granted.
1. Appellant is before us aggrieved by and dissatisfied with a judgment and order dated
22.11.2006 passed by the Division Bench of the High Court of Gujarat at Ahmedabad in
First Appeal No. 4586 of 2006 dismissing the appeal preferred by him.
2. Claimants-Respondents herein are heirs and legal representatives of Devjibhai
Kushalbhai Rathod. He, while travelling in a mini luxury bus as a passenger from Surat
to Mehsana, met with a road accident which took place on 23.6.1994. The accident
occurred due to rash and negligent driving on the part of the driver of the said mini bus is
not in question.
3. The deceased, Devjibhai, at that time, was aged about 35 years. He was working as an
Assistant in the Oil and Natural Gas Commission. A sum of Rs. 12,00,000/- was initially
claimed by way of compensation which was subsequently raised to 25,00,000/-. The
Tribunal, as per the certificate issued by the Senior Personnel and Administrative Officer,
ONGC, noticed that the deceased had been receiving the following salaries and perks in
the month of June 1994 :
"1. Basic Pay Rs. 3295/-

2. DA @ 18.5% Rs. 610/-
3. DSCA 20% of basic Rs. 650/-
4. HRA @ 18% of basic Pay Rs. 593/-
5. Productivity allowance Rs. 450/-
6. Washing allowance Rs. 45/-
7. Conveyance Allowance Rs. 375/-
8. Child Education Allowance (for two children) Rs. 240/-
9. Child Bus fare (for children) Rs. 160/-
_____________
Total : Rs. 6418/-"
_____________
4. However, the Tribunal also took into consideration the salary which might have been
payable to the said deceased as in August, 2002; had he continued in service which was
stated to be as under :
"1. Basic Pay Rs. 10698.00

2. DA @ 35.5% Rs. 3892.00
3. DSCA 20% of basic (maximum Rs.3100) Rs. 2193.00
4. HRA @ 22.5% of basic Pay Rs. 2406.00
5. Productivity allowance Rs. 500.00
6. Tribal allowance Rs. 200.00
7. Conveyance Allowance Rs. 740.00
8. Child Education Allowance (for two children) Rs. 500.00
9. Child Bus fare (for children) Rs. 250.00
10. Canteen Sub. Rs. 164.80
_____________
Total : Rs. 21803.80"
_____________
@page-SC1735
5. The Tribunal, clubbed the income of the deceased which he might have got at the time
of his retirement, i.e., Rs. 3,295/- + Rs. 17453/-, totalling a sum of Rs. 20,748/-and
divided the same by figure two to arrive the figure of at Rs. 10,374/- per month. Adopting
a multiplier of 16, the amount of compensation was determined at Rs. 13,27,872/-.
Besides the compensation amount, amount of gratuity, conventional amount and funeral
expenses were calculated as follows :
"Rs. 13,27,872/- towards dependency loss

Rs. 10,000/- towards conventional amount
Rs. 3,000/- towards funeral expenses
Rs. 3,02,468/- towards gratuity
Rs. 16,43,340/-"
6. Interest on the said amount at the rate of 12 per cent was also awarded.
7. On an appeal preferred by the appellant thereagainst, a Division Bench of the High
Court opined that as a revision of pay had been effected by ONGC from 1.1.1997 and in
August 2002, the employees in the same cadre would have received a sum of Rs. 10,693/-
per month with Dearness Allowance at the rate of 35.5% amounting to Rs. 3892/- and
other allowances. The net income of the deceased was found to be at least a sum of Rs.
16,000/- so as to enable the Tribunal to come to the conclusion that the loss of
dependency benefit would come to Rs. 16,000/- from January 1997 onwards. The High
Court stated :
"In view of the above settled legal position, we do not find any difficulty in accepting the
submission of Mr. Nanavati for the original claimants that the Tribunal was justified in
looking at the pay revision of employees of the ONGC for the purpose of assessing
prospective income of the deceased. The accident in question took place in September
1994. The basic pay of the deceased at that time was Rs. 3295/- and with dearness
allowance and other allowances, his total pay-packet was Rs. 6,418/-. Even proceeding
on the basis that the deductions made by the employer may be taken into account, basic
pay, dearness allowance, drill site compensation allowance and house rent allowance
granted to the deceased would almost come to Rs. 5,000/-per month. Within less than
three years from the date of the accident, pay revision was made by the ONGC with
effect from 1.1.97 and in August 2002, basic pay of the employees in the same cadre in
which the deceased was working was Rs. 10,693/- per month with dearness allowance at
the rate of 35.5% being Rs. 3892/-; drill site compensatory allowance and HRA were also
substantially revised and they were 20% and 22.5% of the basic pay in August 2002.
These four items aggregated to Rs. 19,184/-per month. Over and above these heads, there
were also other allowances like productivity allowance, conveyance allowance, child
education allowance, child bus welfare allowance, etc. making it a total figure of Rs.
21,808/-. Even after taking into account all deductions including the income-tax liability,
the net income available to the deceased and his family would have been at least Rs.
16000/- from January 1997 onwards.
8. The High Court, however, not only adopted the multiplier of 13 instead of 16 to arrive
at the conclusion that the loss of dependency would be about Rs. 16,000/-, but also
interfered with the rate of interest to hold that reasonable interest payable would be 8%
per annum. Appellant was directed to deposit the said amount with proportionate costs
and interest at the rate of 8% per annum from the date of filing of the claim petition till its
realization.
9. Mr. Pankaj Seth, learned counsel appearing on behalf of the appellant, would submit
that the Tribunal as also the High Court committed a serious error in passing the
impugned judgment insofar as they failed to take into consideration that computation for
loss of income should have, in a situation of this nature, been determined only by
doubling the amount of the salary received by the deceased at the relevant time. Future
prospects, according to the learned counsel, could not have been taken into consideration.
10. Mr. Karia, learned counsel appearing for the respondent, on the other hand, urged that
future prospect including the revision in the scale of pay should be taken into
consideration for the purpose of determination of the amount of compensation.
11. The amount of compensation pay able to the heirs and legal representatives of a
deceased-victim of an accident must be a fair and reasonable one. The estimate of the
amount of loss of dependency may be arrived at by adopting various methods, application
of structured formula being one of them. Such a formulas has also been provided
@page-SC1736
for in Schedule II appended to the Motor Vehicles Act, 1988. While determining the
amount of compensation, certain well known principles must be kept in mind.
12. It is not a case where, as on the date of death, the salary of the deceased was revised
with retrospective effect from 1994. Salary would be revised or not was not known at that
part of time. Only because such salary was revised at a later point of time, the same by
itself would not have been a factor which could have been taken into consideration for
determining the amount of compensation. The Tribunal, therefore, committed a serious
illegality in taking into consideration the latter aspect.
13. The amount of compensation indisputably should be determined having regard to the
pecuniary loss caused to the dependents by reason of the death of the victim. It was
necessary to consider the earnings of the deceased at the time of the accident. Of course,
further prospect is not out of bound for such consideration. But the same should be
founded on some legal principle.
14
. In General Manager, Kerala State Road Transport Corporation, Trivendrum v. Susamma

Thomas [(1994) 2 SCC 176], this Court held : 1994 AIR SCW 1356, Para 8
"The multiplier method involves the ascertainment of the loss of dependency or the
multiplicand having regard to the circumstances of the case and capitalizing the
multiplicand by an appropriate multiplier. The choice of the multiplier is determined by
the age of the deceased (or that of the claimants whichever is higher) and by the
calculation as to what capital sum, if invested at a rate of interest appropriate to a stable
economy, would yield the multiplicand by way of annual interest. In ascertaining this,
regard should also be had to the fact that ultimately the capital sum should also be
consumed-up over the period for which the dependency is expected to last."
15
. The legal principle in this behalf has been laid down in the following terms : 1994
AIR SCW 1356, Para 13
"19. In the present case the deceased was 39 years of age. His income was Rs. 1032/-per
month. Of course, the future prospects of advancement in life and career should also be
sounded in terms of money to augment the multiplicand. While the chance of the
multiplier is determined by two factors, namely, the rate of interest appropriate to a stable
economy and the age of the deceased or of the claimant whichever is higher, the
ascertainment of the multiplicand is a more difficult exercise. Indeed, many factors have
to be put into the scales to evaluate the contingencies of the future. All contingencies of
the future need not necessarily be baneful. The deceased person in this case had a more or
less stable job. It will not be inappropriate to take a reasonably liberal view of the
prospects of the future and in estimating the gross income it will be unreasonable to
estimate the loss of dependency on the present actual income of Rs. 1032/-per month. We
think, having regard to the prospects of advancement in the future career, respecting
which there is evidence on record, we will not be in error in making a higher estimate of
monthly income at Rs. 2000/- as the gross income. From this has to be deducted his
personal living expenses, the quantum of which again depends on various factors such as
whether the style of living was spartan or bohemian. In the absence of evidence it is not
unusual to deduct one-third of the gross income towards the personal living expenses and
treat the balance as the amount likely to have been spent on the members of the family
and the dependents. This loss of dependency should capitalise with the appropriate
multiplier. In the present case we can take about Rs. 1,400/- per month or Rs. 17,000/-
per year as the loss of dependency and if capitalized on a multiplier of 12 which is
appropriate to the age of the deceased, the compensation would work out to (Rs. 17,000/-
x 12 = 2,04,000/- rupees) to which is added the usual award for loss of consortium and
loss of the estate each in the conventional sum of Rs. 15,000/-."
This Court in Sarla Dixit and Anr. v. Balwant Yadav and Ors. [(1996) 3 SCC 179]
opined : 1996 AIR SCW 1369, Para 6
"The average gross future monthly income could be arrived at by adding the actual gross
income at the time of death, namely, Rs. 1,500/- per month to the maximum which he
would have otherwise got had he not died a premature death, i.e., Rs. 3,000/-per month
and dividing that figure by two. Thus, the average gross monthly income spread over his
entire future career, had it been available, would work out to Rs. 4,500/-divided by 2, i.e.,
Rs. 2,200/-. Rs. 2,200/-per month would have been the gross
@page-SC1737
monthly average income available to the family of the deceased had he survived as a
bread winner."
16
. In Rathi Menon v. Union of India [(2001) 3 SCC 714], this Court, upon considering the
dictionary meaning of compensation held : "In this context a reference to Section 129 of
the Act appears useful. The Central Government is empowered by the said provision to
make rules by notification "to carry out the purposes of this Chapter". It is evident that
one of the purposes of this chapter is that the injured victims in railway accidents and
untoward incidents must get compensation. Though the word "compensation" is not
defined in the Act or in the Rules it is the giving of an equivalent or substitute of
equivalent value. In Black's Law Dictionary "compensation" is shown as - 2001 AIR
SCW 1074, Para 23
'equivalent in money for a loss sustained; or giving back an equivalent in either money
which is but the measure of value, or in actual value otherwise conferred; or recompense
in value for some loss, injury or service especially when it is given by statute.'
It means when you pay the compensation in terms of money it must represent, on the date
of ordering such payment, the equivalent value."
17
. In N. Sivammal and Ors. v. Managing Director, Pandian Roadways Corporation and

Ors. [(1985) 1 SCC 18], this Court took into consideration the ply packet of the deceased.
AIR 1985 SC 106
18
. We may also notice that in T.N. State Transport Corporation Ltd. v. S. Rajapriya and
Ors. [(2005) 6 SCC 236], this Court held : 2005 AIR SCW 2542
"8. The assessment of damages to compensate the dependants is beset with difficulties
because from the nature of things, it has to take into account many imponderables e.g. the
life expectancy of the deceased and the dependants, the amount that the deceased would
have earned during the remainder of his life, the amount that he would have contributed
to the dependants during that period, the chances that the deceased may not have lived or
the dependants may not live up to the estimated remaining period of their life expectancy,
the chances that the deceased might have got better employment or income or might have
lost his employment or income together.
9. The manner of arriving at the damages is to ascertain the net income of the deceased
available for the support of himself and his dependants, and to deduct therefrom such part
of his income as the deceased was accustomed to spend upon himself, as regards both
self-maintenance and pleasure, and to ascertain what part of his net income the deceased
was accustomed to spend for the benefit of the dependants. Then that should be
capitalised by multiplying it by a figure representing the proper number of years'
purchase.
10. Much of the calculation necessarily remains in the realm of hypothesis "and in that
region arithmetic is a good servant but a bad master" since there are so often many
imponderables. In every case "it is the overall picture that matters", and the court must try
to assess as best as it can the loss suffered."
19
. The same view was reiterated in New India Assurance Co. Ltd. v. Charlie and Anr.
[(2005) 10 SCC 720]. However, therein although the words 'net income' has been used
but the same would ordinarily mean gross income minus the statutory deductions. We
must also notice that the said decision has been followed in New India Assurance Co.
Ltd. v. Kalpana (Smt.) and Ors. [(2007) 3 SCC 538]. 2005 AIR SCW 1801
2007 AIR SCW 1316
20
. In Bijoy Kumar Dugar v. Bidya Dhar Dutta and Ors. [(2006) 3 SCC 242], this Court, in
a case where the salary of the deceased was found to be Rs. 3600/- after deduction and
wherein multiplier of 12 was applied where the age of the parents of the deceased was
between 45 and 50 years, held that no further enhancement was warranted. 2006 AIR
SCW 1116
21
. In U.P. State Road Transport Corporation v. Krishna Bala and Ors. [(2006) 6 SCC 249],
it was held : 2006 AIR SCW 3613, Para 8
the age of the deceased (or that of the claimants, whichever is higher) and by the
calculation as to what capital sum, if invested at a rate of interest appropriate to a stable
economy, would yield the multiplicand
@page-SC1738
by way of annual interest. In ascertaining this, regard should also be had to the fact that
ultimately the capital sum should also be consumed over the period for which the
dependency is expected to last."
22. Therein a multiplier of 13 was adopted in a case where the age of the deceased was
around 36.
23
. Almost to the same effect is the decision of this Court in The Managing Director,
TNSTC v. Sripriya and Ors. [2007 (4) SCALE 222]. In that case, a multiplier of 12 was
applied in a case where the age of the deceased was 37 years. 2007 AIR SCW 1884
24
. Even certain allowances payable to the deceased could have been taken into
consideration in the changing social scenario. In National Insurance Company Ltd. v.
Indira Srivastava and Ors. [2007 (14) SCALE 461], it is useful to notice, this Court
observed : 2008 AIR SCW 143
"17. The amounts, therefore, which were required to be paid to the deceased by his
employer by way of perks, should be included for computation of his monthly income as
that would have been added to his monthly income by way of contribution to the family
as contradistinguished to the ones which were for his benefit. We may, however, hasten to
add that from the said amount of income, the statutory amount of tax payable thereupon
must be deducted."
Noticing the dictionary meaning of 'income', it was held :
"19. If the dictionary meaning of the word 'income' is taken to its logical conclusion, it
should include those benefits, either in terms of money or otherwise, which are taken into
consideration for the purpose of payment of income-tax or profession tax although some
elements thereof may or may not be taxable or would have been otherwise taxable but for
the exemption conferred thereupon under the statute."
25. We, therefore, are of the opinion that what would have been the income of the
deceased on the date of retirement was not a relevant factor in the light of peculiar facts
of this case and, thus, the approach of the Tribunal and the High Court must be held to be
incorrect. It is impermissible in law to take into consideration the effect of revision in
scale of pay w.e.f. 1.1.1997 or what would have been the scale of pay in 2002.
26. The loss of dependency, in our opinion, should be calculated on the basis as if the
basic pay of the deceased was Rs. 3295/-x 2 = Rs. 6,590/-, thereto should be added 18.5%
dearness allowance which comes to Rs.1219/-, child education allowance for two
children @ Rs. 240/- x 2 = Rs.480 and child bus fair Rs. 160 x 2 = Rs. 320/- should have
been added which comes to Rs. 8,609/-.
27. From the aforementioned figure 1/ 3rd should be deducted. After deduction, the
amount of income comes to Rs. 5,738/- per month [Rs. 8609/- - Rs. 2871/-] and the
amount of compensation should be determined by adopting the multiplier of 13, which
comes to Rs. 8,95,128/-.
28. In the present case, the High Court itself has applied the multiplier of 13. We are of
the opinion that no interference therewith is warranted. We furthermore do not intend to
interfere with the rate of interest in the facts and circumstance of the case.
29. The appeal is allowed in part and to the extent mentioned hereinbefore. In the facts
and circumstances of the case, there shall be no order as to costs.
Appeal partly allowed.
AIR 2008 SUPREME COURT 1738 "M.S.D.C. Radharamanan v. M.S.D. Chandrasekara
Raja"
(From : 2007 (138) Com Cas 897 (Madras))
-2008.
M.S.D.C. Radharamanan v. M.S.D. Chandrasekara Raja and Anr.
(A) Companies Act (1 of 1956), S.397, S.398 - COMPANY - CONCURRENT
FINDINGS - Mismanagement - Two shareholders, Directors, father and son holding all
shares of company - Acrimony between parties, resulting in mismanagement of conduct
of affairs of company - Concurrent finding that as there was no mutual trust and
confidence between parties and, thus, it would be impossible for company to run the
same smoothly - Therefore, finding as regards dead lock in affairs of company cannot be
faulted with. (Paras 14, 15, 33, 40)
(B) Companies Act (1 of 1956), S.397, S.433 - COMPANY - Oppression and
mismanagement - Petition against - Just and equitable test applicable in case for winding
up of company - Cannot be said to be totally outside the purview of S.397.
@page-SC1739
The provisions of the Act vis-a-vis the jurisdiction of the Company Law Board must be
considered having regard to the complex situation(s) which may arise in the case before
it. No hard and fast rule can be laid down. There cannot be any doubt whatsoever that the
acts of omission and commission on the part of a member of a company should be qua
the management of the company, but it is difficult to accept the proposition that the just
and equitable test, which should be held to be applicable in a case for winding up of a
company, is totally outside the purview of S. 397 of the Act. The function of a Company
Law Board in such matters is first to see as to how the interest of the Company vis-a-vis
its shareholders can be safeguarded. The Company Law Board must also make an
endeavour to find out as to whether an order of winding up will serve the interest of the
company or subvert the same. Further, if an application is filed under S. 433 or S. 397
and/or 398 thereof, an order of winding up may be passed, but the Company Law Board
in a winding up application may refuse to do so, if any other remedy is available. The
Company Law Board may not shut its doors only on sheer technicality even if it is found
as of fact that unless the jurisdiction under S. 402 of the Act is exercised, there will be a
complete mismanagement in regard to the affairs of the company. Ss. 397 and 398
empower the Company Law Board to remove oppression and mismanagement. If the
consequences of refusal to exercise jurisdiction would lead to a total chaos or
mismanagement of the company, would still the Company Law Board be powerless to
pass appropriate orders is the question. If a literal interpretation to the provisions of S.
397 or 398 is taken recourse to, may be that would be the consequence. But jurisdiction
of the Company Law Board having been couched in wide terms and as diverse reliefs can
be granted by it to keep the company functioning: is it not desirable to pass an order
which for all intent and purport would be beneficial to the company itself and the
majority of the members? A Court of law can hardly satisfy all the litigants before it.
This, however, by itself would not mean that the Company Law Board would refuse to
exercise its jurisdiction, although the statute confers such a power on it. (Paras 19, 20)
(C) Companies Act (1 of 1956), S.397, S.433 - COMPANY - Oppression and
mismanagement - Petition against - What is important is not the interest of applicant but
interest of shareholders of company as a whole - Said principle if can be applied in case
of winding up of company - It can also be invoked in a case u/S.397 subject of course to
the applicability of well known judicial safeguards. (Para 35)
(2007) 1 Comp LJ 450 (CLB)39
(2007) 5 Comp LJ 279 (CLB)38
2006 CLC 218 (Delhi) 21
2005 AIR SCW 790 : AIR 2005 SC 809 : 2005 CLC 277 (Ref.) 35
(1996) 10 SCC 696 (Ref.) 37
(1986) Ch 211 35
1983 BCLC 273 35
AIR 1981 SC 1298 (Ref.) 18, 35, 37
AIR 1976 SC 565 (Ref.) 34
(1973) 75 Bom LR 778 35
1973 AC 360 35
AIR 1965 SC 1535 (Ref.) 17, 18, 30, 35
(1958) 3 All ER 689 17, 18
1952 SC 49 : 1952 SLT 112 35
(1916) 2 Ch 412 35
C.A. Sundaram, Sr. Advocate, Ms. Haripriya, Ms. Rohini, Ms. V. Mohana, for Appellant;
K. Parasaran, Sr. Advocate, R. Murari, Ms. K.P. Indira, K. Swami, Ms. Yousa Lachenpa,
Ms. Prabha Swami, for Respondents.
Judgement
2. M/s. Shree Bhaarathi Cotton Mills Private Limited is a company registered and
incorporated under the Companies Act, 1956 (for short, 'the Act'). Out of the 2,84,000
equity shares in the company of Rs.10/- each, 2,83,999 shares are held by the first
respondent and his son (appellant herein). The remaining one share is held by M/s. Visva
Bharathi Textiles Private Limited, shares in which again is held equally by the first
respondent and the appellant. Thus, for all intent and purport, all shares of the company
are held by the appellant and the first respondent.
3. Whereas the first respondent is the Managing Director of the Company, the appellant is
the Director thereof. Indisputably the parties are not on good terms.
4. Respondent No. 1 filed an application purported to be under Sections 397 and 398
@page-SC1740
of the Act alleging several acts of oppression on the part of appellant herein before the
Company Law Board, Additional Principal Bench, Chennai. The said application was
registered as C.P. No. 2 of 2004. By reason of an order dated 16th August, 2004, the
Company Law Board while opining holding there was no act of mala fide or oppression
on the part of the appellant, opined that there exists a deadlock in the affairs of the
company. It directed the appellant to purchase 2,84,000 shares held by the first
respondent at a value to be determined by a chartered valuer.
5. An appeal was filed thereagainst by the appellant before the High Court of Judicature
at Madras under of Section 10F of the Act which was registered as C.M.A. No. 174 of
2004.
By reason of the impugned judgment dated 11th October, 2006 a Division Bench of the
High Court dismissed the same opining that the Company Law Board could very well
look into the justifiability of the situation and was, thus, right in arriving at its conclusion
that there existed a deadlock situation. It was opined that in such a situation it would be
impossible for both of them to pull on together as there was incompatibility between
them. The High Court noticed that the appellant herein even intended to file a criminal
complaint against his father, the first respondent for alleged misappropriation of a sum of
Rs. 8,15,000/-. A suit for partition, it was furthermore noticed, was pending. It was
directed :
"77........However, if there is any dispute regarding the method of valuation of the shares
and the ultimate valuation arrived at by the valuer, it is open for either parties to approach
the Company Law Board for getting the valuation finalised. Thereupon, at the first
instance, the second respondent shall purchase the shares of the petitioners, within six
months from the date of finalisation of such valuation and on his failure to do so, the
petitioner in C.P., shall purchase the shares of the second respondent, within six months
thereafter. In the event of both the alternatives failing, the purchase of shares of either the
petitioner or the second respondent could be transferred to third parties depending upon
the exigency. The Company Law Board is at liberty to pass such further orders under
Section 402 of the Companies Act, in commensurate with the views expressed by this
court, for the smooth running of the company.
78. In view of the reasons given for deciding the aforesaid point this civil miscellaneous
appeal is partly allowed by modifying the order passed by the Company Law Board. The
submission made by learned Counsel for the petitioner is recorded as aforesaid."
6. Mr. C.A. Sundaram, learned Senior counsel appearing on behalf of the appellant, in
support of the appeal, submitted :
1. The Company Law Board was not justified in issuing the impugned direction in
purported exercise of its jurisdiction under Section 402 of the Act directing him to
purchase the shares of the respondent despite arriving at a finding of fact that no act of
oppression has been committed by the appellant.
2. The condition precedent for exercise of such power being oppression on the part of a
Director of a company being not satisfied, the impugned judgment is wholly
unsustainable.
3. The High Court committed a manifest error in passing the impugned judgment in
reversing the findings of fact arrived at by the Company Law Board; although no appeal
therefrom had been preferred by the first respondent so as to hold that the acts of
omission and commission on the part of the appellant constituted such an oppression.
4. Both the High Court as also the Company Law Board committed a serious error in
granting the relief in favour of the first respondent without taking into consideration that
the grant of relief shall not only be in the interest of the company but also must have a
direct nexus with the affairs of the company and conduct of its business.
5. In any view of the matter, having regard to the prayers made by the first respondent in
his application before the Company Law Board, appointment of an Additional Director
would have served the purpose.
6. As the appellant does not have the necessary fund to purchase the shares of the first
respondent, he could not be forced to sell his shares.
7. Mr. K. Parasaran, learned Senior counsel, appearing for the respondents, on the other
hand, would contend :-
1. Appellant did not raise any ground in
@page-SC1741
the special leave petition that he is not in a position to purchase the shares of the
Respondent No. 1.
2. The company being a private limited company, which is in the nature of a quasi
partnership concern, the Court should take a holistic view of the matter and so viewed the
judgments of the Company Law Board as also the High Court are unassailable.
3. Appellant having not acceded to the proposal of respondent No. 1 in regard to the
appointment of the Additional Director, it does not lie in the mouth to say that
appointment of the Additional Director would serve the purpose.
4. The Company Law Board, in exercise of its jurisdiction under Sections 397 and 398
read with Section 402 of the Companies Act has the requisite jurisdiction to direct a share
holder to sell his shares to the other, although no case for winding up of the company has
been made out or no actual oppression on the part of the Director has been proved.
8. A shareholder of a company or a Director has several remedies under the Act. Section
433 of the Act envisages filing of an application for winding up thereof, inter alia, in a
case where the Company Law Board may form an opinion that it is Just and equitable
that the company should be wound up.
9. Section 443 of the Act provides for the powers of Company Law Board in a winding
up proceeding. Sub-section (2) thereof provides that a company may be directed to be
wound up when a petition is presented for winding up on the ground that it is just and
equitable.
The Company Law Board may refuse to do so, if in its opinion some other remedy is
available to the petitioners and that they are acting unreasonably. The applicant, thus, in a
given case, when it would not be in the interest of the company to be wound up, may take
recourse to other remedies available in law. Making out a case of oppression is one of
them.
10. An application under Section 397 of the Act may be filed in the following
circumstances :-
1) Where the affairs of the company are being conducted in the manner prejudicial to
public interest; or
2) In a manner oppressive to any member or members.
11. Sub-section (2) of Section 397 of the Act. however, provides that in the event the
Court is of the opinion that the company's affairs are being conducted in a manner
oppressive to any member or members or furthermore held that directing winding up the
company would unfairly prejudice such member or members, but the same otherwise
justifies the making of a winding up order on the ground that it is just and equitable that
the company should be wound up. It may make such other or further order as may think
fit and proper with a view to bringing to an end to the matters complained of.
Interpretation of Section 397(2) of the Act came up for consideration before a Division
Bench of this court in Hanuman Prasad Bagri and Ors. vs. Bagress Cereals Pvt. Ltd. and
Ors. [ [2001] 2 SCR 811]. This court while examining the conditions laid down in the
section, opined that : 2001 AIR SCW 1359, Para 3
"No case appears to have been made out that the company's affairs are being conducted in
a manner prejudicial to public interest or in a manner oppressive of any member or
members. Therefore, we have to pay our attention only to the aspect that the winding up
of the company would unfairly prejudice the members of the company who have the
grievance and are the applicants before the court and that otherwise the facts would
justify the making of a winding up order on the ground that it was just and equitable that
the company should be wound up. In order to be successful on this ground, the
Petitioners have to make out a case for winding up of the company on just and equitable
grounds. If the facts fall short of the case set out for winding up on just and equitable
grounds no relief can be granted to the Petitioners. On the other hand the party resisting
the winding up can demonstrate that there are neither just nor equitable grounds for
winding up and an order for winding up would be unjust and unfair to them."
After reviewing the decision of the High Court on the above test, this Court held that no
reasons prevailed for interference with the order and thus dismissed the appeal.
12. Section 398 of the Act provides for filing of an application for the reliefs in cases of
mismanagement.
@page-SC1742
Section 402 provides for the powers of the Company Law Board on an application made
under Section 397 or 398 of the Act which includes the power to pass any order providing
for the purchase of the shares or interests of any member of the company by other
member (s) thereof or by the company.
13. Ordinarily, therefore, in a case where a case of oppression has been made a ground
for the purpose of invoking the jurisdiction of the Board in terms of Sections 397 and 398
of the Act, a finding of fact to that effect would be necessary to be arrived out. But, the
jurisdiction of the Company Law Board to pass any other or further order in the interest
of the company, if it is of the opinion, that the same would protect the interest of the
company, it would not be powerless. The jurisdiction of the Company Law Board in that
regard must be held to be existing having regard to the aforementioned provisions.
14. The deadlock in regard to the conduct of the business of the company has been
noticed by the Company Law Board as also the High Court. Keeping in view the fact that
there are only two shareholders and two Directors and bitterness having crept in their
personal relationship, the same, in our opinion, will have a direct impact in the matter of
conduct of the affairs of the company.
15. When there are two Directors, non-cooperation by one of them would result in a
stalemate and in that view of the matter the Company Law Board and the High Court
have rightly exercised their jurisdiction.
16. Before us, learned counsel for the parties, have referred to a large number of
decisions operating in the field.
We may notice the legal principle emerging from some of them.
17
. In S. P. Jain vs. Kalinga Tubes Ltd. : (1965) 2 SCR 720 this Court compared the
provisions of Section 397 with Section 210 of the English Act to hold :- AIR 1965 SC
1535, Para 13
"The law always provided for winding up, in case it was just and equitable to wind up a
company. However, it was being felt for some time that though it might be just and
equitable in view of the manner in which the affairs of a company were conducted to
wind it up, it was not fair that the company should always be wound up for that reason,
particularly when it was otherwise solvent. That is why Section 210 was introduced in the
English Act to provide an alternative remedy where it was felt that, though a case had
been made out on the ground of just and equitable cause to wind up a company, it was not
in the interest of the shareholders that the company should be wound up and that it would
be better if the company was allowed to continue under such directions as the court may
consider proper to give."
The Court analysed the decision in Re. H.R. Harmer Limited : [1958] 3 All ER 689 in the
following terms :-
"19. In Harmer's case, it was held that "the word 'oppressive' meant burdensome, harsh
and wrongful". It was also held that "the section does not purport to apply to every case
in which the facts would justify the making of a winding up order under the 'just and
equitable' rule, but only to those cases of that character which have in them the requisite
element of oppression." It was also held that "the result of applications under Section 210
in different cases must depend on the particular facts of each case, the circumstances in
which oppression may arise being so infinitely various that it is impossible to define them
with precision." The circumstances must be such as to warrant the inference that "there
has been, at least, an unfair abuse of powers and an impairment of confidence in the
probity with which the company's affairs are being conducted, as distinguished from
mere resentment on the part of a minority at being outvoted on some issue of domestic
policy". The phrase "oppressive to some part of the members" suggests that the conduct
complained of " should at the lowest involve a visible departure from the standards of fair
dealing, and a violation of the conditions of fair play on which every share holder who
entrusts his money to a company is entitled to rely . . . But, apart from this, the question
of absence of mutual confidence per se between partners, or between two sets of
shareholders, however relevant to a winding up, seems to me to have no direct relevance
to the remedy granted by Section 210. It is oppression of some part of the shareholders by
the manner in which the affairs of the company are being conducted that must be averred
and proved. Mere loss of confidence or pure deadlock does not . . . come within Section
210. It is not lack of confidence between share holders per se that brings Section 210 into
play, but lack of confidence
@page-SC1743
springing from oppression of a minority by a majority in the management of the
company's affairs and oppression involves ... at least an element of lack of probity or fair
dealing to a member in the matter of his proprietary right as a shareholder."
It is true that observations in Harmer's case was held to be applicable in a case falling
within the purview of Section 397 of the Act but the statement of law that it was not
enough that only a just and equitable case for winding up of the company should be made
out but it must also be found that conduct of the majority shareholders was oppressive to
the minority members, cannot be said to be exhaustive.
18
. The question came up for consideration yet again before a three judge Bench of this
Court in Needle Industries (India) Ltd. vs. Needle Industries Newey (India) Holding
Ltd. : (1981) 3 SCC 333 wherein Chandrachud, C.J. upon considering a large number of
decisions of this Court as also the English Courts including S.P. Jain and Harmer Ltd.
(supra) categorically held :- AIR 1981 SC 1298
AIR 1965 SC 1535
"172. Even though the company petition fails and the appeals succeed on the finding that
the Holding Company has failed to make out a case of oppression, the court is not
powerless to do substantial justice between the parties and place them, as nearly as it
may, in the same position in which they would have been, if the meeting of May 2 were
held in accordance with law."
19. The provisions of the Act vis-a-vis the jurisdiction of the Company Law Board must
be considered having regard to the complex situation(s) which may arise in the cases
before it. No hard and fast rule can be laid down. There cannot be any doubt whatsoever
that the acts of omission and commission on the part of a member of a company should
be qua the management of the company, but it is difficult to accept the proposition that
the just and equitable test, which should be held to be applicable in a case for winding up
of a company, is totally outside the purview of Section 397 of the Act. The function of a
Company Law Board in such matters is first to see as to how the interest of the company
vis-a-vis its shareholders can be safeguarded. The Company Law Board must also make
an endeavour to find out as to whether an order of winding up will serve the interest of
the company or subvert the same. Further, if an application is filed under Section 433 of
the Act or Section 397 and/or 398 thereof, an order of winding up may be passed, but as
noticed hereinbefore, the Company Law Board in a winding up application may refuse to
do so, if any other remedy is available. The Company Law Board may not shut its doors
only on sheer technicality even if it is found as of fact that unless the jurisdiction under
Section 402 of the Act is exercised, there will be a complete mismanagement in regard to
the affairs of the company.
20. Sections 397 and 398 of the Act empower the Company Law Board to remove
oppression and mismanagement. If the consequences of refusal to exercise jurisdiction
would lead to a total chaos or mismanagement of the company, would still the Company
Law Board be powerless to pass appropriate orders is the question.
If a literal interpretation to the provisions of Section 397 or 398 is taken recourse to, may
be that would be the consequence. But jurisdiction of the Company Law Board having
been couched in wide terms and as diverse reliefs can be granted by it to keep the
company functioning; is it not desirable to pass an order which for all intent and purport
would be beneficial to the company itself and the majority of the members? A court of
law can hardly satisfy all the litigants before it. This, however, by itself would not mean
that the Company Law Board would refuse to exercise its jurisdiction, although the
statute confers such a power on it.
21. It is now a well settled principle of law that the Courts should lean in favour of such
construction of statute whereby its jurisdiction is retained enabling it to mould the relief,
subject of course, to the applicability of law in the fact situation obtaining in each case.
In Pearson Education Inc. (formerly Prentice Hall Inc.) vs. Prentice Hall India (P) Ltd.
and Ors. [134 (2006) DLT 450], as regards the jurisdiction of the Company Law Board
and the High Court under Sections 397/398 and 402, a learned single judge of the Delhi
High Court held : 2006 CLC 218
"Jurisdiction of the CLB (and ultimately of this Court in appeal) under Sections 397/ 398
and 402 is much wider and direction can be given even contrary to the provisions of the
Articles of Association. It has even
@page-SC1744
right to terminate, set aside or modify the contractual arrangement between the company
and any person [see Section 402 (d) and (e)]. Section 397 specifically provides that once
the oppression is established, the Court may, with a view to bringing to an end the matters
complained of, make an order as it thinks fit. Thus, the Court has ample power to pass
such orders as it thinks fit to render justice and such an order has to be reasonable. It is
also an accepted principle that "just and equitable" provision in Section 402(g) is an
equitable supplement to the common law of the company to be found in its Memorandum
and Articles of Association."
22. In a case of this nature, where there are two shareholders and two Directors, any
animosity between them not only would have come in the way of proper functioning of
the company but it would also affect the smooth management of the affairs of the
company. The parties admittedly are at loggerheads. A suit is pending regarding title of
the shares of the Company. A contention had been raised by the appellant before the
Company Law Board that the 1st respondent having filed a wealth-tax return as Karta of
Hindu Undivided Family, he not only has 50 % shares in the Company but also 50%
shares in the H.U.F.; whereas the contention of the 1st respondent in that behalf is that the
appellant had already taken his half share in the joint family property and the H.U.F.
mentioned in the Wealth Tax Return pertains to the smaller H.U.F. which consists of
himself and his daughters.
1st respondent is about 80 years old. Because of his old age, he is not in a position to look
after the affairs of the company. Even in the grounds of appeal before us, a contention has
been raised that it was the 1st respondent, who is the oppressor. We have noticed
hereinbefore that, rightly or wrongly, appellant also intended to file a criminal case
against the 1st respondent alleging that he had misappropriated a huge amount as a
Director of the company.
23. Before the Company Law Board, several grounds to establish a case of oppression
had been made out :-
1) Non co-opting of a third Director on the Board;
2) Non clearance of accumulated stocks;
3) Surrender of the surplus power in favour of TNEB;
4) Non issue of duplicate share certificates;
5) Non redemption of preference shares;
6) Non sanctioning of increment to the staff members;
7) Deadlock in the affairs of the company.
24. In regard to the first ground, admittedly, A. Jayakumar, son-in-law of the 1st
respondent being the brother-in-law of the appellant was nominated as a Director of the
company. Appellant indisputably did not agree in that behalf. However, the first
respondent left it to the discretion of the Company Law Board to appoint a third Director,
but we are informed at the bar that even the same was objected to by the appellant.
25. It is in the aforementioned situation the Company Law Board has opined that such an
impasse could have been removed by resorting to appointment of an additional Director.
What the Board failed to notice was that when the appellant himself intended to become
the Managing Director, he would like to have his own man in the Board which was not
acceded to by the 1st respondent.
26. Surrender of surplus power in favour of TNEB may be a business decision but such a
decision will have a direct impact on the conduct of the business. It at least shows that the
parties were at loggerheads. It is in the aforementioned situation, the High Court opined :-
"The Company Law Board should have categorically held that such surrender was
beneficial to the company and the second respondent unjustifiably objected to it.
Admittedly, the second respondent was not in favour of such surrender on the ground that
it was required for future expansion of the factory activities. Such a plea of the second
respondent is based on mere conjectures and surmises and not borne out by any proposed
project for future expansion. As such the Company Law Board very well could have held
that the second respondent was oppressive."
27. In relation to the non-issue of duplicate share certificates the Company Law Board
opined :-
"That is why the petitioner took up the very same issue again at the Board meeting
convened on 20.03.2004, after filing of the company petition. It is on record that the
second respondent did not attend the Board meeting on 20.03.2004 on the ground that
@page-SC1745
the subject matter is sub-judice before the CLB. Thus, there is no ultimate denial of the
issue of duplicate share certificates by the second respondent in favour of the petitioner."
28. The High Court, however, in this regard opined "recording this, the Company Law
Board could have very well held that the second respondent was not justified in causing
obstruction to the issuance of such share certificates."
29. A ground has also been taken in the memo of appeal contending :
"The Division Bench entirely failed to appreciate that the Petitioner being a whole time
director and also being a 50% shareholder the Petitioner has a right to refuse to give his
consent to certain transactions if the Petitioner is of the opinion that the same is not good
for the business of the Respondent No.2 company or that the same is against the interests
of the company. The Petitioner has merely exercised his right as a whole time director in
not agreeing to certain resolutions and that by itself neither amounts to a deadlock of
oppression."
We have referred to the views taken by the Company Law Board as also the High Court,
not being oblivious of the objection of Mr. Sundaram, that in relation to those findings,
the 1st respondent did not prefer any appeal.
30. Without going into the legal issue, however, we are of the opinion that the same is
only evidence of the instances as to how a deadlock in the affairs of the company was
viewed. Both the Company Law Board as well as the High Court have arrived at a
concurrent finding that as there was no mutual trust and confidence between the parties
and, thus, it would be impossible for the company to run the same smoothly.
We are not again oblivious of the observations made by this Court in S.P. Jain case that
the same by itself would not be a ground of winding up; but the ground of lack of mutual
trust and confidence cannot be taken into consideration in isolation. The same has to be
considered having regard to large number of other factors, the cumulative effect thereof
would be extremely significant to arrive at one or the other conclusion. AIR 1965 SC
1535
31. We may take notice of the fact that the appellant had made the following allegations
against the 1st respondent in the list of dates :-
"It is respectfully submitted that the Respondent No. 1 did not maintain proper books of
minutes of meetings or attendance registers, did not allow the Petitioner herein to use the
company guest house in Chennai, the Respondent No. 1 attempted to bring in a third
director to marginalize the role of the Petitioner, the Respondent No. 1 siphoned off Rs.
8,15,000/- of the company money, the Respondent No. 1 attempted to transfer by way of
gifts properties given as collateral security to financial institutions and so on. When the
Petitioner herein either asserted his rights or attempted to thwart the wrongful acts of the
Respondent No. 1, the Respondent No. 1 became abusive."
32. We may also notice that in his reply statement before the Company Law Board it was
stated by the appellant :-
"5.10 The Petitioner-Managing Director has become quite old. In fact under the
Companies Act, in case of Public Companies there exist sufficient safeguards to restrict
appointment of Managing Directors over the age of 70 without prior permission of the
Central Government. Such provisions have been thoughtfully provided considering the
inherent weaknesses that will emerge out of old age. In order to continue the smooth
functioning of the enterprise, it would be very much conducive if the Managing Director
gracefully retires from the post and lets a much younger and still experienced person to
take over the mantle of the company. And further-more, so considering that the younger
person is the only son of the present Managing Director, it is quite natural that the take-
over of the mantle that should be mooted."
It was further averred :-
"6. There has been no oppression or mismanagement as averred by the Petitioner. It is a
fact that the Petitioner, who is the Managing Director of the company is in a more
convenient position to oppress the 2nd Respondent but on the other hand, the Petitioner
has been alleging the opposite, without any basis. The mere fact that one of the two
directors/shareholders decides to exercise his proprietary right as a shareholder/ director
to vote for or against any resolution does not amount to deadlock in management or
oppression."
33. In a case of this nature, it is necessary to take a holistic approach of the matter.
@page-SC1746
What might not be permissible for the affairs of a public limited company or even a
private company having large number of shareholders and Directors, may be permissible
in a case of this nature where a company for all intent and purport a quasi partnership
concern. The Parliament, while enacting a statute, cannot think of all situations which
may emerge in giving effect to the statutory provision.
The situation obtaining in the present case in that sense is a pathetic one. Both the
Company Law Board as also the High Court has no doubt found that the acrimony
between the parties is resulting in mismanagement of the conduct of affairs of the
company. Therefore, a conclusion as regards the deadlock in the affairs of the company
cannot be faulted with.
34
. In Hind Overseas (P) Ltd. vs. Raghunath Prasad Jhunjhunwalla and another [(1976) 3
SCC 259] this Court upon noticing a large number of decisions opined :- AIR 1976 SC
565, Paras 36 and 37
"37. Section 433 (f) under which this application has been made has to be read with
Section 443(2) of the Act. Under the latter provision where the petition is presented on
the ground that it is just and equitable that the Company should be wound up, the court
may refuse to make an order of winding-up if it is of opinion that some other remedy is
available to the petitioners and that they are acting unreasonably in seeking to have the
Company wound up instead of pursuing that other remedy.
38. Again under Sections 397 and 398 of the Act there are preventive provisions in the
Act as a safeguard against oppression in management. These provisions also indicate that
relief under Section 433 (f) based on the just and equitable clause is in the nature of a last
resort when other remedies are not efficacious enough to protect the general interests of
the Company."
35. This Court noticed that although the Indian Companies Act is modelled on the
English Companies Act, the Indian Law is developing on its own lines. It was opined that
the principle of 'just and equitable clause' is essentially equitable consideration and may,
in a given case, be superimposed on law.
The Court in arriving at the said conclusion considered the decision of House of Lords in
Re : Ebrahimi and Westbourne Galleries Ltd. : 1973 AC 360 whereupon strong reliance
has been placed by Mr. Sundaram as also in Re: Yenidje Tobacco Co. Ltd. : (1916) 2 Ch
412 amongst others.
What is important is not the interest of the applicant but the interest of the shareholders of
the company as a whole. If such a principle is applied in a case of winding up of a
company, we do not see any reason not to invoke the said principle in a case under
Section 397 of the Act, subject of course to the applicability of the well known judicial
safeguards.
A similar question came up for consideration in Sangramsinh P. Gaekwad vs. Shantadevi
P. Gaekwad 2005 (11) SCC 314 wherein this Court upon noticing a large number of
decisions including Needle Industries (India) Ltd. (supra) observed :- 2005 AIR
SCW 790
AIR 1981 SC 1298
"191. In Shanti Prasad Jain referring to Elder case it was categorically held that the
conduct complained of must relate to the manner of management of the affairs of the
company and must be such so as to oppress a minority of the members including the
petitioners qua shareholders. The Court, however, pointed out that law, however, has not
defined what oppression is for the purpose of the said section and it is left to the court to
decide on the facts of each case whether there is such oppression." Paras 198, 204 to 207
and 209 of AIR SCW
AIR 1965 SC 1535
It was furthermore held

"196. The court in an application under Sections 397 and 398 may also look to the
conduct of the parties. While enunciating the doctrine of prejudice and unfairness borne
in Section 459 of the English Companies Act. the Court stressed the existence of
prejudice to the minority which is unfair and not just prejudice per se.
197. The court may also refuse to grant relief where the petitioner does not come to court
with clean hands which may lead to a conclusion that the harm inflicted upon him was
not unfair and that the relief granted should be restricted. (See London School of
Electronics, Re.)
198. Furthermore, when the petitioners have consented to and even benefited from the
company being run in a way which would normally be regarded as unfairly prejudicial to
their interests or they might have
@page-SC1747
shown no interest in pursuing their legitimate interest in being involved in the company.
[See RA Noble and Sons (Clothing) Ltd., Re.]
199. In a given case the court despite holding that no case of oppression has been made
out may grant such relief so
201. In Shanti Prasad Jain v. Union of India it was held that the power of the Company
Court is very wide and not restricted by any limitation contained in Section 402 thereof
or otherwise."
36. It was opined that the burden to prove oppression or mismanagement is upon the
applicant. The Court, however, will have to consider the entire materials on record and
may not insist upon the applicant to prove each act of oppression. It was furthermore
observed that an action in contravention of law may not per se be oppressive, whereas the
conduct involving illegality and contravention of the Act may be suffice to warrant grant
of any remedy.
37. Reliance has been placed by Mr. Sundaram on Kilpest (P) Ltd. vs. Shekhar Mehra :
(1996) 10 SCC 696, which has also been noticed in Sangramsinh P. Gaekwad (supra)
opining :
"The real character of the company, as noticed hereinbefore, for the purpose of judging
the dealings between the parties and the transactions which are impugned may assume
significance and in such an event, the principles of quasi-partnership in a given case may
be invoked.
231. The ratio of the said decision, with respect, cannot be held to be correct as a bare
proposition of law, as was urged by Mr. Desai, being contrary to larger Bench judgments
of this Court and in particular Needle Industries. It is, however, one thing to say that for
the purpose of dealing with an application under Section 397 of the Companies Act, the
court would not easily accept the plea of quasi-partnership but as has been held in Needle
Industries the true character of the company and other relevant factors shall be considered
for the purpose of grant of relief having regard to the concept of quasi-partnership."
AIR 1981 SC 1298
38. Submission of Mr. Sundaram that the appointment of an additional Director could be
a sufficient relief which the court may grant cannot be accepted. Appellant rejected such
an offer. At this stage bitterness and acrimonious between the parties have ensued.
In a recent decision of J. K. Paliwal and Others vs. Paliwal Steels Ltd. and others [(2007)
5 Comp LJ 279 (CLB)], on the role of the directors in terms of Sections 397 and 398 , the
Company Law Board held that the role of the directors was well settled and they were the
trustees of the company. It was thus opined that the directors were required to act on
behalf of the company in a fiduciary capacity and their acts and deeds have to be
exercised for the benefit of the company.
39. In Girdhar Gopal Dalima and others vs. Bateli Tea Co. Ltd. and others : (2007) 1
Comp LJ 450 (CLB) the Company Law Board held that once the Company Law Board
gives a finding that acts of oppression have been established, winding up of the company
on just and equitable grounds becomes automatic.
40. We, in the facts and circumstances of this case, are of the opinion that it is not a fit
case where we should interfere with impugned judgment in exercise of our discretionary
jurisdiction under Article 136 of the Constitution of India. The appeal fails and dismissed
with costs. Counsel's fees assessed at Rs. 50,000/-.
Appeal dismissed.
AIR 2008 SUPREME COURT 1747 "Ram Swaroop v. State of Rajasthan"
(From : Rajasthan)*
Coram : 2 Dr. A. PASAYAT AND P. SATHASIVAM, JJ.
Criminal Appeal No. 548 of 2008 (arising out of SLP (Cri.) No.2469 of 2006), D/- 25 -3
-2008.
Ram Swaroop v. State of Rajasthan.
(A) Penal Code (45 of 1860), S.300 - Evidence Act (1 of 1872), S.45 - MURDER -
EVIDENCE - Murder - Variance between medical and ocular evidence - Doctor is
usually confronted with questions on different possibilities and probabilities of causing
injuries - Views expressed by him depend upon the manner questions were asked -
Answers given by him to such questions need not be last word on such possibilities -
Evidence of eye-witness cannot be discarded on strength of such medical opinion.
@page-SC1748
AIR 1979 SC 1194, AIR 1988 SC 2154, 1995 Supp (1) SCC 547, 1998 (6) SCC 50, 2003
AIR SCW 6731, Rel. on. (Para 9)
(B) Penal Code (45 of 1860), S.300 - Evidence Act (1 of 1872), S.3 - MURDER -
EVIDENCE - CONCURRENT FINDINGS - Murder - Evidence of eye-witnesses -
Clearly making accusations against accused - Certain minor variations in their testimony
- Would not corrode credibility of prosecution version - Concurrent finding that accused
was guilty - Not liable to be interfered with. (Para 11)
2003 AIR SCW 6731 : AIR 2004 SC 1053 : 2004 Cri LJ 640 (Rel. on) 10
(1998) 6 SCC 50 (Rel. on) 10
1995 Supp (1) SCC 547 (Rel. on) 10
Radha Shyam Jena, for Appellant; Mllind Kumar, Aruneshwar Gupta, for Respondent.
* D.B. Cri. A. No.473 of 2001, D/- 26-7-2005 (Raj).
Judgement
Dr. ARIJIT PASAYAT, J. :-Leave granted.
2. Challenge in this appeal is to the judgment rendered by a Division Bench of the
Rajasthan High Court upholding the conviction of the appellant for offence punishable
under Section 302 of the Indian Penal Code, 1860 (in short the 'IPC') and sentence of
Imprisonment for life as awarded by learned Additional Sessions Judge No.1, Jodhpur.
3. Background facts in a nutshell are as follows :
Report was lodged by one Tulsh Singh at the Tolesar Police station stating that on
19.11.1999 he was standing in the road along with Swai Singh, Sumer Singh (hereinafter
referred to as 'deceased') and Vijay Singh. Around 4 P.M. Laxman Singh who was then
studying in a nearby school came and inform that while the children were talking
amongst each other, appellant Ram Swaroop slapped him, At that time Ram Swaroop and
Shrawan were standing on the read. When Sumer Singh asked Ram Swaroop as to why
he had beaten Laxman, on this Shrawan started beating Sumer Singh and the complainant
tried to separate them. In the mean time the appellant with the intention to kill stabbed
Sumer Singh with a knife. Sumer Singh received two stab injuries on his chest and one
stab injury from knife on his back and he started bleeding and fell down. While the
complainant and others were attending to Sumer Singh, Shrawan and accused appellant
Ram Swaroop ran way. Sumer Singh's elder brother Kumbh Singh arrived there. Sumer
Singh in an injured condition was taken to the Gandhi Hospital at Jodhpur, but he died on
the way to the hospital. On the basis of this information, the FIR was lodged and
investigation was undertaken. Charge sheet was filed alleging commission of offence
punishable under Section 302 IPC by the accused appellant, while co-accused Shrawan
Ram was charged for offence punishable under Section 302 read with Section 34 IPC.
The matter was committed to the Court of Sessions and the two accused persons faced
the trial as they pleaded innocence and denied the allegation. In order to further its
version, prosecution examined 14 witnesses. Tulsh Singh-PW3 and Swai Singh-PW4
were stated to be eye witnesses. The trial court on considering the evidence on record
found the accused appellant guilty and convicted and sentenced accused appellant for
offence punishable under Section 302 IPC.
4. The trial court found the evidence to be not sufficient to fasten the guilt on accused
Shrawan Ram.
5. The High Court did not find any merit in the appeal of the accused appellant and
dismissed the same.
6. In support of the appeal, learned counsel for the appellant submitted that the trial court
and the High Court lost sight of the fact that PWs. 3 and 4 have not spoken the truth. The
scenario described by them does not fit in with the prosecution version. It is pointed out
that the manner of attack and infliction of injuries as stated by PWs. 3 and 4 do not fit
into the medical evidence.
7. Learned counsel for the respondent-State on the other hand supported the Judgment of
the trial court as affirmed by the High Court.
8. So far as the alleged variance between medical evidence and ocular evidence is
concerned, it is trite law that oral evidence has to get primacy and medical evidence is
basically opinionative. It is only when the medical evidence specifically rules out the
injury as claimed to have been inflicted as per the oral testimony, then only in a given
case the
@page-SC1749
Court has to draw adverse inference.
9. Over dependence on such opinion evidence, even if the witness is an expert in the
field, to checkmate the direct testimony given by an eyewitness is not a safe modus
adoptable in criminal cases. It has now become axiomatic that medical evidence can be
used to repel the testimony of eyewitnesses only if it is so conclusive as to rule out even
the possibility of the eyewitness's version to be true. A doctor usually confronted with
such questions regarding different possibilities or probabilities of causing those injuries
or post-mortem features which he noticed in the medical report may express his views
one way or the other depending upon the manner the question was asked. But the answers
given by the witness to such questions need not become the last word on such
possibilities. After all he gives only his opinion regarding such questions. But to discard
the testimony of an eyewitness simply on the strength of such opinion expressed by the
medical witness is not conducive to the administration of criminal Justice.
10
. Similar view has also been expressed in Mange v. State of Haryana (1979 (4) SCC 340),
State of U.P. v. Krishna Gopal and Anr. (AIR 1888 SC 2154) and Ram Dev and Anr. v.
State of U.P. (1995 Supp (1) SCC 547). State of U.P. v. Harban Sahai and Ors. (1998 (6)
SCC 50 and Ramanand Yadav v. Prabhu Nath Jha and Ors. (2003 (12) SCC 606). AIR
1979 SC 1194
2003 AIR SCW 6731
11. The trial court and the High Court have analysed in great detail the evidence of PWs.
3 and 4, which clearly bring out the accusations against the accused appellant. There are
certain minor variations which do not in any way corrode the credibility of the
prosecution version. The trial court and the High Court were, therefore, justified in
placing reliance on their evidence and holding the accused appellant guilty. We do not
find any merit in the appeal which is accordingly dismissed.
12. We record our appreciation for the able manner in which Mr. Radha Shyam Jena,
learned Amicus Curiae highlighted various points.
Appeal dismissed.
AIR 2008 SUPREME COURT 1749 "Kashmir Singh v. Harnam Singh"
(From : AIR 2001 Punj and Har 257)
Coram : 3 Dr. A. PASAYAT, P. SATHASIVAM AND AFTAB ALAM, JJ.
Civil Appeal No.1036 of 2002, D/- 3 -3 -2008.
Kashmir Singh v. Harnam Singh and Anr.
(A) Civil P.C. (5 of 1908), S.100 - APPEAL - CONCURRENT FINDINGS - Second
Appeal - Concurrent finding of fact - Interference - When permissible.
The general rule is that High Court will not interfere with concurrent findings of the
Courts below. But it is not an absolute rule. Some of the well recognized exceptions are
where (i) the Courts below have ignored material evidence or acted on no evidence; (ii)
the Courts have drawn wrong inferences from proved facts by applying the law
erroneously; or (iii) the Courts have wrongly cast the burden of proof. 'Decision based on
no evidence', not only means cases where there is a total dearth of evidence, but also
refers to any case, where the evidence, taken as a whole, is not reasonably capable of
supporting the finding. (Para 17)
(B) Civil P.C. (5 of 1908), S.100 - APPEAL - Second Appeal - Substantial question of
law - Parameters for constituting.
To be 'substantial' a question of law must be debatable, not previously settled by law of
the land or a binding precedent, and must have a material bearing on the decision of the
case, if answered either way, insofar as the rights of the parties before it are concerned.
To be a question of law 'involving in the case' there must be first a foundation for it laid
in the pleadings and the question should emerge from the sustainable findings of fact
arrived at by Court of facts and it must be necessary to decide that question of law for a
just and proper decision of the case. An entirely new point raised for the first time before
the High Court is not a question involved in the case unless it goes to the root of the
matter. It will, therefore, depend on the facts and circumstances of each case whether a
question of law is a substantial one and involved in the case, or not; the paramount
overall consideration being the need for striking judicious balance between the
indispensable obligation to do justice at all stages and impelling necessity of avoiding
prolongation in the life of any lis. (Para 15)
@page-SC1750
A substantial question of law will also arise in a contrary situation, where the legal
position is clear, either on account of express provisions of law or binding precedents, but
the Court below has decided the matter, either ignoring or acting contrary to such legal
principle. In the second type of cases, the substantial question of law arises not because
the law is still debatable, but because the decision rendered on a material question,
violates the settled position of law. (Para 16)
The substantial question of law on which a second appeal shall be heard need not
necessarily be a substantial question of law of general importance. (Para 12)
(C) Civil P.C. (5 of 1908), S.100 - APPEAL - Second Appeal - Question of law.
An inference of fact from the recitals or contents of a document is a question of fact. But
the legal effect of the terms of a document is a question of law. Construction of a
document involving the application of any principle of law, is also a question of law.
Therefore, when there is misconstruction of a document or wrong application of a
principle of law in construing a document, it gives rise to a question of law. (Para
16)
(D) Civil P.C. (5 of 1908), S.100 - APPEAL - APPELLATE COURT - Second Appeal -
Interference - Scope - Rejection by appellate Court of witnesses accepted by trial Court
as credible - Not ground for interference - Two views are possible - Not also a ground for
interference. (Para 10)
(E) Civil P.C. (5 of 1908), S.100 - APPEAL - Second Appeal - Maintainability - Grounds
stipulated for - Court cannot enlarge - Equity is not a ground. (Para 9)
2002 AIR SCW 5368 : AIR 2003 SC 689 (Ref.) 7
2001 AIR SCW 723 : AIR 2001 SC 965 (Ref.) 15
2000 AIR SCW 1001 : AIR 2000 SC 1485 (Rel. on) 6
1999 AIR SCW 2240 : AIR 1999 SC 2213 (Ref.) 11
1994 AIR SCW 4082 : AIR 1995 SC 73 (Ref.) 6
AIR 1976 SC 830 (Ref. on) 11
AIR 1962 SC 1314 (Rel. on) 9, 12, 13
AIR 1953 SC 521 14
AIR 1951 Mad 969 (FB) (Ref.) 12
AIR 1928 PC 172 (Ref.) 12
J.S.N. Joshi, A.S. Bhasme and Brijesh Pande, for Appellant; Rajat Sharma, Siddhartha
Singh, A.P. Mohanty, for Respondents.
Judgement
1. Dr. ARIJIT PASAYAT, J. :- Challenge in this appeal is to the judgment of a learned
Single Judge of the Punjab and Haryana High Court allowing the Second Appeal filed by
respondent No. 1. The Second Appeal was filed under Section 100 of the Code of Civil
Procedure, 1908 (in short the 'Code'). Though many points were urged in support of the
appeal it was primarily submitted that no substantial question of law was formulated and
Second Appeal would not have been allowed without formulating any such question.
2. In view of Section 100 of the Code the memorandum of appeal shall precisely state
substantial question or questions of law involved in the appeal as required under sub-
section (3) of Section 100. Where the High Court is satisfied that in any case any
substantial question of law is involved it shall formulate that question under sub-section
(4) and the Second Appeal has to be heard on the question so formulated as stated in sub-
section (5) of Section 100.
3. Section 100 of the Code deals with "Second Appeal". The provision reads as follows :
"Section 100 - (1) Save as otherwise expressly provided in the body of this Code or by
any other law for the time being in force, an appeal shall lie to the High Court from every
decree passed in appeal by any Court subordinate to the High Court, if the High Court is
satisfied that the case involves a substantial question of law.
(2) An appeal may lie under this section from an appellate decree passed ex parte.
(3) In an appeal under this Section, the memorandum of appeal shall precisely state the
substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved in any
case, it shall formulate that question.
(5) The appeal shall be heard on the question so formulated and the respondent shall,
@page-SC1751
at the hearing of the appeal, be allowed to argue that the case does not involve such
question :
Provided that nothing in this sub-section shall be deemed to take away or abridge the
power of the Court to hear, for reasons to be recorded, the appeal on any other substantial
question of law, not formulated by it, if it is satisfied that the case involves such
question."
4. A perusal of the impugned judgment passed by the High Court does not show that any
substantial question of law has been formulated or that the Second Appeal was heard on
the question, if any, so formulated. That being so, the judgment cannot be maintained.
5
. In Ishwar Dass Jain v. Sohan Lal (2000 (1) SCC 434) this Court in para 10, has stated
thus : 1999 AIR SCW 4573
"10. Now under Section 100, after the 1976 Amendment, it is essential for the High Court
to formulate a substantial question of law and it is not permissible to reverse the
judgment of the first appellate Court without doing so."
6
. Yet again in Roop Singh v. Ram Singh (2000 (3) SCC 708) this Court has expressed that
the jurisdiction of a High Court is confined to appeals involving substantial question of
law. Para 7 of the said judgment reads : 2000 AIR SCW 1001
"7. It is to be reiterated that under section 100 jurisdiction of the High Court to entertain a
second appeal is confined only to such appeals which involve a substantial question of
law and it does not confer any jurisdiction on the High Court to interfere with pure
questions of fact while exercising its jurisdiction under section 100. That apart, at the
time of disposing of the matter the High Court did not even notice the question of law
formulated by it at the time of admission of the second appeal as there is no reference of
it in the impugned judgment. Further, the fact findings courts after appreciating the
evidence held that the defendant entered into the possession of the premises as a batai,
that is to say, as a tenant and his possession was permissive and there was no pleading or
proof as to when it became adverse and hostile. These findings recorded by the two
courts below were based on proper appreciation of evidence and the material on record
and then was no perversity, illegality or irregularity in those findings. If the defendant got
the possession of suit land as a lessee or under a batai agreement then from the
permissive possession it is for him to establish by cogent and convincing evidence to
show hostile animus and possession adverse to the knowledge of the real owner. Mere
possession for a long time does not result in converting permissive possession into
adverse possession (Thakur Kishan Singh v. Arvind Kumar (1994 (6) SCC 591). Hence
the High Court ought not to have interfered with the findings of fact recorded by both the
courts below." 1994 AIR SCW 4082
7
. The position has been reiterated in Kanahaiyalal and Ors. v. Anupkumar and Ors. (JT
2002 (10) SC 98) 2002 AIR SCW 5368
8. After the amendment, a second appeal can be filed only if a substantial question of law
is involved in the case. The memorandum of appeal must precisely state the substantial
question of law involved and the High Court is obliged to satisfy itself regarding the
existence of such a question. If satisfied, the High Court has to formulate the substantial
question of law involved in the case. The appeal is required to be heard on the question so
formulated. However, the respondent at the time of hearing of the appeal has a right to
argue that the case in the court did not involve any substantial question of law. The
proviso to the section acknowledges the powers of the High Court to hear the appeal on a
substantial point of law, though not formulated by it with the object of ensuring that no
injustice is done to the litigant where such a question was not formulated at the time of
admission either by mistake or by inadvertence.
9
. It has been noted time and again that without insisting for the statement of such a
substantial question of law in the memorandum of appeal and formulating the same at the
time of admission, the High Courts have been issuing notices and generally deciding the
second appeals without adhering to the procedure prescribed under Section 100 of the
Code. It has further been found in a number of cases that no efforts are made to
distinguish between a question of law and a substantial question of law. In exercise of the
powers under this section in several cases, the findings of fact of the first appellate court
arc found to have been disturbed. It has to be kept in mind that the right of Para 6 of AIR
@page-SC1752
appeal is neither a natural nor an inherent right attached to the litigation. Being a
substantive statutory right, it has to be regulated in accordance with law in force at the
relevant time. The conditions mentioned in the section must be strictly fulfilled before a
second appeal can be maintained and no court has the power to add or to enlarge those
grounds. The second appeal cannot be decided on merely equitable grounds. The
concurrent findings of facts will not be disturbed by the High Court in exercise of the
powers under this section. Further, a substantial question of law has to be distinguished
from a substantial question of fact. This Court in Sir Chunilal V. Mehta and Sons Ltd. v.
Century Spg. and Mfg. Co. Ltd. (AIR 1962 SC 1314) held that :
"The proper test for determining whether a question of law raised in the case is
substantial would, in our opinion, be whether it is of general public importance or
whether it directly and substantially affects the rights of the parties and if so whether it is
either an open question in the sense that it is not finally settled by this Court or by the
Privy Council or by the Federal Court or is not free from difficulty or calls for discussion
of alternative views. If the question is settled by the highest court or the general
principles to be applied in determining the question are well settled and there is a mere
question of applying those principles or that the plea raised is palpably absurd the
question would not be a substantial question of law."
10. It is not within the domain of the High Court to investigate the grounds on which the
findings were arrived at, by the last court of fact, being the first appellate court. It is true
that the lower appellate court should not ordinarily reject witnesses accepted by the trial
court in respect of credibility but even where it has rejected the witnesses accepted by the
trial court, the same is no ground for interference in Second Appeal when it is found that
the appellate court has given satisfactory reasons for doing so. In a case where from a
given set of circumstances two inferences of fact are possible, one drawn by the lower
appellate court will not be interfered by the High Court in Second Appeal. Adopting any
other approach is not permissible. The High Court will, however, interfere where it is
found that the conclusions drawn by the lower appellate court were erroneous being
contrary to the mandatory provisions of law applicable or its settled position on the basis
of pronouncements made by the Apex Court, or was based upon inadmissible evidence or
arrived at by ignoring material evidence.
11
. The question of law raised will not be considered as a substantial question of law, if it
stands already decided by a larger Bench of the High Court concerned or by the Privy
Council or by the Federal Court or by the Supreme Court. Where the facts required for a
point of law have not been pleaded, a litigant should not be allowed to raise that question
as a substantial question of law in Second Appeal. Mere appreciation of facts, the
documentary evidence or the meaning of entries and the contents of the documents
cannot be held to be raising a substantial question of law. But where it is found that the
first appellate court has assumed jurisdiction which did not vest in it, the same can be
adjudicated in the Second Appeal, treating it as a substantial question of law. Where the
first appellate court is shown to have exercised its discretion in a judicial manner, it
cannot be termed to be an error either of law or of procedure requiring interference in
Second Appeal. This Court in Reserve Bank of India v. Ramkrishna Govind Morey (1976
(1) SCC 803) held that whether the trial court should not have exercised its jurisdiction
differently is not a question of law justifying interference. ([See : Kondiba Dogadu
Kadam v. Savitribai Sopan Gujar and others (1999 (3) SCC 722)]. AIR 1976 SC 830
1999 AIR SCW 2240
12. The phrase "substantial question of law", as occurring in the amended Section 100 is
not defined in the Code. The word "substantial", as qualifying "question of law", means
of having substance, essential, real, of sound worth, important or considerable. It is to be
understood as something in contradistinction with technical, of no substance or
consequence, or academic merely. However, it is clear that the legislature has chosen not
to qualify the scope of "substantial question of law" by suffixing the words "of general
importance" as has been done in many other provisions such as Article 133(1)(a) of the
Constitution. The substantial question of law on which a Second Appeal shall be heard
need not necessarily be a substantial question of law of general importance. In Guran
Ditta v. T. Ram Ditta (AIR 1928 PC 172), the phrase 'substantial question
@page-SC1753
of law' as it was employed in the last clause of the then existing Section 100 (since
omitted by the Amendment Act, 1973) came up for consideration and their Lordships
held that it did not mean a substantial question of general importance but a substantial
question of law which was involved in the case. In Sri Chunilal's case (supra), the
Constitution Bench expressed agreement with the following view taken by a Full Bench
of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju (AIR 1951 Mad
969) :
"When a question of law is fairly arguable, where there is room for difference of opinion
on it or where the Court thought it necessary to deal with that question at some length and
discuss alternative views, then the question would be a substantial question of law. On the
other hand if the question was practically covered by the decision of the highest court or
if the general principles to be applied in determining the question are well settled and the
only question was of applying those principles to the particular facts of the case it would
not be a substantial question of law."
13
. This Court laid down the following test as proper test, for determining whether a
question of law raised in the ease is substantial as quoted in Sir Chunilal's case (supra).
AIR 1962 SC 1314
14. In Dy. Commnr., Hardoi v. Rama Krishna Narain (AIR 1953 SC 521) also it was held
that a question of law of importance to the parties was a substantial question of law
entitling the appellant to a certificate under (the then) Section 100 of the CPC.
15
. To be "substantial" a question of law must be debatable, not previously settled by law of

the land or a binding precedent, and must have a material bearing on the decision of the
case, if answered either way, insofar as the rights of the parties before it are concerned.
To be a question of law "involving in the case" there must be first a foundation for it laid
in the pleadings and the question should emerge from the sustainable findings of fact
arrived at by court of facts and it must be necessary to decide that question of law for a
just and proper decision of the case. An entirely new point raised for the first time before
the High Court is not a question involved in the case unless it goes to the root of the
matter. It will, therefore, depend on the facts and circumstance of each case whether a
question of law is a substantial one and involved in the case, or not; the paramount
overall consideration being the need for striking a judicious balance between the
indispensable obligation to do justice at all stages and impelling necessity of avoiding
prolongation in the life of any lis. (See : Santosh Hazari v. Purushottam Tiwari (deceased)
by L.Rs. [(2001) 3 SCC 179]. 2001 AIR SCW 723
16. The principles relating to Section 100, relevant for this case, may be summarized thus
:-
(i) An inference of fact from the recitals or contents of a document is a question of fact.
But the legal effect of the terms of a document is a question of law. Construction of a
document involving the application of any principle of law, is also a question of law.
Therefore, when there is misconstruction of a document or wrong application of a
principle of law in construing a document, it gives rise to a question of law.
(ii) The High Court should be satisfied that the case involves a substantial question of
law, and not a mere question of law. A question of law having a material bearing on the
decision of the case (that is, a question, answer to which affects the rights of parties to the
suit) will be a substantial question of law, if it is not covered by any specific provisions of
law or settled legal principle emerging from binding precedents, and, involves a
debatable legal issue. A substantial question of law will also arise in a contrary situation,
where the legal position is clear, either on account of express provisions of law or binding
precedents, but the court below has decided the matter, either ignoring or acting contrary
to such legal principle. In the second type of cases, the substantial question of law arises
not because the law is still debatable, but because the decision rendered on a material
question, violates the settled position of law.
17. The general rule is that High Court will not interfere with concurrent findings of the
Courts below. But it is not an absolute rule. Some of the well recognized exceptions are
where (i) the courts below have ignored material evidence or acted on no evidence; (ii)
the courts have drawn wrong inferences from proved facts by applying the law
erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to
'decision based on no evidence', it not only refers to cases where there is a total
@page-SC1754
dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is
not reasonably capable of supporting the finding.
18. In view of the aforesaid position, we set aside the impugned judgment of the High
Court and remit the matter to it for fresh consideration. The Second Appeal can be only
maintained after formulating substantial question of law, if any, and not otherwise. We
make it clear we have not expressed any opinion on the question as to whether any
substantial question of law is involved or not.
19. The appeal is allowed to the aforesaid extent without any order as to costs.
Order accordingly.
AIR 2008 SUPREME COURT 1754 "M. Bala Krishna Reddy v. Director, CBI, New
Delhi"
(From : Madhya Pradesh)
Coram : 2 C. K. THAKKER AND DALVEER BHANDARI, JJ.
Criminal Appeal No.491 of 2008 (arising out of SLP (Cri.) No.1125 of 2007), D/- 14 -3
-2008.
M. Bala Krishna Reddy v. Director, CBI, New Delhi.
(A) Delhi Special Police Establishment Act (25 of 1946), S.5 - POLICE OFFICERS -
APPLICABILITY OF AN ACT - PUBLIC SERVICE COMMISSION -
INVESTIGATION - Applicability of Act - Appellant, alleged to have used unfair means
in examination conducted by Union Public Service Commission (UPSC) at centre in
State of Madhya Pradesh - Investigation - Fact that Head Office of UPSC is located at
New Delhi - And appellant is employee of Central Government - Do not confer
jurisdiction on CBI to invoke provisions of the Act. (Para 11)
(B) Delhi Special Police Establishment Act (25 of 1946), S.6 - POLICE OFFICERS -
CBI - Prosecution by CBI - Consent by State Government - Grant of - Mode, method or
manner - Not provided under Act - It depends on facts of each case - Letter by Deputy
Secretary of State Government to Secretary of Government of India, Ministry of Home
Affairs giving consent for exercise of power and jurisdiction in State - Is consent as
envisaged by S.6.
It cannot be said that consent by State Government for prosecution by CBI can never be
accorded except by issuing a notification. Section 3 of the Act refers to 'notification' and
requires the Central Government to issue notification specifying offences or class of
offences to be investigated by Special Police Establishment. Section 5 used the term
'order' and enables the Central Government to extend powers and jurisdiction of Special
Police Establishment to other areas not covered by the Act. Section 6 which speaks of
consent of State Government for the exercise of powers and jurisdiction of the Special
Establishment neither refers to 'notification' nor 'order'. It merely requires consent of the
State Government for the application of the Delhi Act. Parliament, advisedly and
deliberately did not specify the mode, method or manner for granting consent though in
two preceding sections such mode was provided. If it intended that such consent should
be in a particular form, it would certainly have provided the form as it was aware of
different forms of exercise of power. It, therefore, depends on the facts of each case
whether the consent required by S. 6 of the Delhi Act has or has not been given by the
State Government and no rule of universal application can be laid down.
In the instant case the letter written by the Deputy Secretary to State Government
mentioned that the 'State Government had no objection to the members of the Delhi State
Police Establishment exercising powers and jurisdiction within this State'. In the facts and
circumstances it cannot be said the State Government has not given consent as envisaged
by S. 6. Thus prosecution instituted by CBI on that basis against the appellant cannot be
said to be without jurisdiction. (Paras 18, 72)
2006 AIR SCW 3990 : AIR 2006 SC 2872 : 2006 Cri LJ 4050 (Disting., Pnt. B) 66, 68,
70
2003 AIR SCW 1848 : AIR 2003 SC 1405 (Ref.) 53, 54, 65
(1996) 2 SCC 26 (Ref.) 52, 65
AIR 1987 SC 1554 : 1987 Cri LJ 1860 (Ref.) 63, 65
AIR 1970 SC 679 : 1970 Lab IC 568 (Ref.) 51
AIR 1964 SC 1823 (Ref.) 48, 56, 65
AIR 1963 SC 395 (Disting, Pnt. B) 54, 56, 57, 64, 65
AIR 1961 SC 493 (Ref.) 54, 63
AIR 1961 SC 1381 (Ref.) 40
AIR 1961 SC 1762 (Ref.) 41, 43, 47, 52
AIR 1955 SC 160 (Ref.) 37, 39
@page-SC1755
AIR 1952 SC 181 : 1952 Cri LJ 955 (Ref.) 29, 39

AIR 1952 SC 317 : 1952 Cri LJ 1269 (Ref.) 35
AIR 1952 SC 350 (Ref.) 27, 28
AIR 1947 FC 38 : 1947 (48) Cri LJ 886 31
Dr. Rajiv Dhawan, Sr. Advocate, D. Rama Krishna Reddy and Mrs. D. Bharathi Reddy,
for Appellant; A Sharan, ASG, B.B. Singh, Amit Anand Tiwari P. Parmeswaran, for
Respondent.
Judgement
1. C. K. THAKKER, J. :-Leave granted.
2. The present appeal is filed against an order passed by Special Magistrate, CBI, Indore,
Madhya Pradesh on December 17, 2002 in Criminal Case No. 1155 of 2002 and
confirmed by the High Court of Madhya Pradesh (Indore Bench) on January 2, 2007 in
Criminal Revision No. 176 of 2003.
3. Briefly stated the facts of the case are that the appellant herein appeared in the
examination conducted by the Union Public Service Commission ('UPSC' for short) in
the year 1996 at Hamidiya Arts and Commerce College, Bhopal on November 1, 1996. It
was alleged that the appellant was found to be in possession of pre-written answer sheets
which were similar, if not identical, to the answer sheets supplied by the Examination
Board. The appellant was taken out of the hall and a statement was recorded in which he
confessed to have pre-written answer sheets with him. The matter was then reported to
UPSC Head Office at New Delhi. A preliminary inquiry was instituted and on being
prima facie satisfied about the allegations levelled, the Secretary, UPSC, lodged a
Criminal Case against the appellant for offences punishable under Sections 420, 471, 474,
467, 468 and 417 read with Section 511 of the Indian Penal Code, 1860 ('IPC' for short).
A charge-sheet was filed in the Court of Special Magistrate, Central Bureau of
Investigation ('CBI' for short), Indore.
4. The appellant raised a preliminary objection contending that the alleged offences had
been committed at Bhopal in the State of Madhya Pradesh and CBI had no power,
authority or jurisdiction to institute criminal proceedings. It was also contended that
before initiating proceedings under the Delhi Special Police Establishment Act, 1946
(hereinafter referred to as 'the Delhi Act'), consent of the State Government is required.
No such consent had been given by the State of Madhya Pradesh and the proceedings
initiated against the appellant by CBI were without jurisdiction.
5. The learned Magistrate, by an order dated December 17, 2002 rejected the preliminary
objection. Being aggrieved by the said order, the appellant preferred Revision under
Section 397 of the Code of Criminal Procedure, 1973 in the High Court of Madhya
Pradesh (Indore Bench), and as stated above, the High Court dismissed the Revision
Petition. The said order is challenged by the appellant by filing the present appeal.
6. On March 8, 2007, notice was issued by this Court. On August 6, 2007, the Registry
was directed to place the matter for final hearing. That is how the matter has been placed
before us.
8. The learned counsel for the appellant raised several contentions. It was submitted that
the High Court was wrong in holding that the proceedings against the appellant could
have been initiated by CBI. It was contended that the direction issued by the High Court
was ex facie erroneous. When alleged offence was committed by the appellant in Bhopal
in the State of Madhya Pradesh, Police Authorities of the State alone could have initiated
proceedings against the accused. It was also submitted that before invoking the
provisions of the Delhi Act, consent of the State Government is mandatory and a
condition precedent for the exercise of power. The provision as to consent of the State
Government must be complied with in letter and spirit and such consent should be in
proper form as required by law. Since the consent required under the Act is of the 'State
Government', the prerequisites of Article 166 of the Constitution must be observed. If the
procedure laid down in the said Article is not followed, the so-called consent has no
meaning. Such consent cannot be said to be legal, valid and in consonance with law and
CBI does not get jurisdiction in the matter. It was also submitted that the High Court was
wholly wrong in upholding the contention of CBI that it could have initiated prosecution
since the alleged offence had been committed in conduct of UPSC Examination which
had been conducted by its Delhi office which is the Head Quarter of UPSC and, hence,
the Delhi Act was applicable. The High Court was again
@page-SC1756
wrong in holding that since the appellant Was selected in Indian Forest Services
Examination conducted by UPSC and he was in Indian Forest Services since 1993 and
was an Officer of Central Government, the Delhi Act would apply for cognizance of
offences committed by him as a Central Government employee and CBI had power to
prosecute him. The High Court, according to the learned counsel, was not right in holding
that the letter dated February 5, 1957 by the Deputy Secretary to the Government of
Madhya Pradesh to the Secretary to the Government of India, Ministry of Home Affairs
could be termed and treated as 'consent within the meaning of Section 6 of the Delhi Act.
It was, therefore, submitted that the appeal deserves to be allowed by setting aside the
orders passed by the Courts below and by quashing the proceedings initiated by CBI
against the appellant.
9. The learned counsel for the respondents, on the other hand, supported the order passed
by the trial Court and confirmed by the Revisional Court. It was submitted that the High
Court had considered the order dated February 5, 1957 in its proper perspective and held
that the State of Madhya Pradesh had given consent as required by law (Section 6 of the
Delhi Act) and prosecution by CBI against the appellant under the Delhi Act cannot be
said to be without Jurisdiction.
10. We have given anxious consideration to the rival submissions of the learned counsel
of both the sides. We have also examined the relevant provisions of the Delhi Act, Article
166 of the Constitution and case law cited by both the parties and we are of the view that
by rejecting the preliminary objection raised by the appellant, the Courts below have not
committed any illegality or error of law and the appeal deserves to be dismissed.
11. At the outset, we must frankly admit that the two factors weighed with the High
Court, namely, (i) the Head Office of the UPSC is located at New Delhi; and (ii) the
appellant is an employee of Central Government and on those grounds, the Delhi Act
would be applicable have not impressed us. The said grounds, in our opinion, do not
confer jurisdiction on CBI to invoke the Delhi Act. The main ground, therefore, which
remains to be considered is whether 'consent' as envisaged by Section 6 of the Delhi Act
has been given by the State Government of Madhya Pradesh to the Central Government
so as to enable the latter to invoke the provisions of the Delhi Act. For the said purpose, it
is necessary to bear in mind the relevant provisions of the Delhi Act.
12. As the Preamble of the Act states, it is an Act to make provision for the constitution of
a Special Police Force in Delhi for the investigation of certain offences in the Union
Territories and for the extension to other areas of the powers and jurisdiction of the
members of the said force in regard to the investigation of the said offences. Section 1
declares that the Act extends to the whole of India. Section 2 provides for constitution
and powers of Special Police Establishment. Section 3 enables the Central Government to
investigate offences by Special Police Establishment. It reads thus :
3. Offences to be investigated by Special Police Establishment :- The Central
Government may, by notification in the Official Gazette, specify the offences or classes
of offences which are to be investigated by the Delhi Special Police Establishment.
13. Section 4 covers superintendence and administration of Special Police Establishment,
Section 5 empowers the Central Government to extend the powers and jurisdiction of
Special Police Establishment to States. The said section is also relevant and may be
reproduced;
5. Extension of powers and Jurisdiction of Special Police Establishment to other areas :-
(1) The Central Government may by order extend to any area including railway areas in a
State not being a Union Territory, the powers and jurisdiction of members of the Delhi
Special Police Establishment for the investigation of any offences or classes of offences
specified in a notification under Section 3.
(2) When by order under sub-section (1) the powers and jurisdiction of members of the
said Police Establishment are extended to any such area, a member thereof may, subject
to any order which the Central Government may make in this behalf, discharge the
functions of a police officer in the area and shall, while so discharging such functions, be
deemed to be a member of the police force of that area and be vested with the powers,
functions and privileges and be subject to the liabilities of a police officer belonging to
that police force.
@page-SC1757
(3) Where any such order under sub-section (1) is made in relation to any area, then,
without prejudice to the provisions of sub-section (2), any member of the Delhi Special
Police Establishment of or above the rank of Sub-Inspector may, subject to any orders
which the Central Government may make in this behalf, exercise the powers of the
officer-in-charge of a police station in that area and when so exercising such powers shall
be deemed to be an officer in-charge of a police station discharging the functions of such
an officer within the limits of his station.
14. Section 6 is very important which requires consent of State Government for
exercising powers and jurisdiction under the Act by Special Police Establishment to any
area in a State not being Union Territory or Railway. The said section, therefore, may be
quoted in extenso;
6. Consent of the State Government to exercise powers and jurisdiction :- Nothing
contained in Section 5 shall be deemed to enable any member of the Delhi Special Police
Establishment to exercise powers and jurisdiction in any area in a State, not being a
Union Territory or railway area without the consent of the Government of that State.
15. Plain reading of the above provisions goes to show that for exercise of jurisdiction by
the CBI in a State (other than Union Territory or Railway Area), consent of the State
Government is necessary. In other words, before the provisions of the Delhi Act are
invoked to exercise power and jurisdiction by Special Police Establishment in any State,
the following conditions must be fulfilled;
(i) A notification must be issued by the Central Government specifying the offences to be
investigated by Delhi Special Police Establishment (Section 3);
(ii) An order must be passed by the Central Government extending the powers and
jurisdiction of Delhi Special Police Establishment to any State in respect of the offences
specified under Section 3 (Section 5); and
(iii) Consent of the State Government must be obtained for the exercise of powers by
Delhi Special Police Establishment in the State (Section 6).
16. Now, so far as the first two conditions are concerned, they have been complied with
and the requisite material is on record of the case. A notification required to be issued by
the Central Government under Section 3 of the Delhi Act specifying offences under the
Indian Penal Code (IPC) as also under several other Acts has been issued on September 7,
1989 and has been placed by the respondent on record along with the affidavit-in-reply
filed by M.C. Sahni, Superintendent of Police, CBI, Bhopal. The said notification covers
inter alia, the offences punishable under Sections 417, 418, 420, 467, 468, 471, 474, 511,
IPC. Likewise, the Central Govenrment passed an order on February 18, 1963 as
contemplated by Section 5 of the Delhi Act extending the powers and jurisdiction of the
members of Special Police Establishment to various States including the State of Madhya
Pradesh for the investigation of offences specified in the Schedule annexed to the said
Schedule. The Schedule specifies various offences under IPC including the offences
referred to hereinabove, offences under the Prevention of Corruption Act and various
other enactments. Thus, Sections 3 and 5 of the Delhi Act have been complied with.
17. The question, therefore, which has to be considered is whether the consent
contemplated by Section 6 of the Delhi Act has been given by the State Government.
According to the appellant, no such consent has been given by the State of Madhya
Pradesh. The counter argument on behalf of the respondent is that such consent has been
given by the State Government which is reflected in the order dated February 5, 1957.
18. A copy of the letter addressed by the Deputy Secretary to the Government of Madhya
Pradesh to the Secretary, Ministry of Home Affairs, Government of India, New Delhi has
been placed on record by the appellant, which reads thus;
"To
The Secretary,
Ministry of Home Affairs,
Govt. of India,
New Delhi.
Bhopal, dated 5th February, 1957
Sub. : Consent of the State Government to the functioning of the Special Police
Establishment in the State.
Sir,
In continuation of this department letter No. 20/12(II)/Home Police dated the 29th
@page-SC1758
December, 1956 on the above subject, I am directed to state that this State Government
have no objection to the members of the Delhi State Police Establishment exercising
powers and jurisdiction within this State.
Yours faithfully,
Sd/-
P. N. MISHRA
DEPUTY SECRETARY TO THE GOVT."
19. The learned counsel for the appellant contended that the above letter which
purportedly records the consent of the State Government to the exercise of powers and
jurisdiction of the Delhi State Police Establishment to the State of Madhya Pradesh is
merely a letter and does not meet with the requirements of Section 6 of the Delhi Act.
The so-called 'consent' reflected in the letter, hence, cannot be said to be 'consent'
accorded by the State Government under the statute. In other words, the contention is that
the letter is in the nature of 'inter-Departmental communication' by the Deputy Secretary
to the State of Madhya Pradesh to the Secretary to Central Government and cannot be
regarded as consent under Section 6 of the Act.
20. In the counter-affidavit filed by the Superintendent of Police, CBI, Bhopal, the
deponent has stated that the consent as required by Section 6 of the Delhi Act had been
given by the State of Madhya Pradesh to the Central Government. It was also stated that
the copy of the order, dated February 5, 1957 annexed to the Special Leave Petition by
the petitioner (appellant herein) was not full and complete and did not contain
file/reference number, name of the department and the authority from whom it was
issued. The order, however, contains all such information. The deponent has annexed the
order as one of the Annexures (Annexure IV) to his reply and the same reads thus :
"SECRET
TRUE COPY
No. G97/II-Home/Police
Government of Madhya Pradesh
Home (Police) Department
From,
Shri R.N. Mishra, IAS
Deputy Secretary to Govt.
To,
The Secretary to the Govt. of India,
Ministry of Home Affairs,
NEW DELHI.
Bhopal, dated 5th February, 1957
Subject : Consent of the State Government to the functioning of the Special Police
Establishment in the State.
Sir,
In continuation of this department letter No. 20/12(II)/Home Police, dated the 29th
December, 1956 on the above subject, I am directed to state that this State Government
have no objection to the members of the Delhi Special Police Establishment exercising
powers and jurisdiction within this State.
Yours faithfully,
Sd/-
R. N. MISHRA
Deputy Secretary to the Govt.
ATTESTED
(T. C. RAMANUJACHARI)
DEPUTY SECRETARY TO THE GOVERNMENT OF INDIA"
(Emphasis supplied)
21. The learned counsel for the appellant then submitted that all executive actions of the
Government of a State must be taken in accordance with and as per the procedure laid
down in Article 166 of the Constitution. Article 166 of the Constitution on which strong
reliance has been placed by the appellant reads thus :
166. Conduct of business of the Government of a State.-
(1) All executive action of the Government of a State shall be expressed to be taken in the
name of the Governor.
(2) Orders and other instruments made and executed in the name of the Governor shall be
authenticated in such manner as may be specified in rules to be made by the Governor,
and the validity of an order on instruction which is so authenticated shall not be called in
question on the ground that it is not an order or instrument made or executed by the
Governor.
(3) The Governor shall make rules for the more convenient transaction of the business of
the Government of the State, and for the allocation among Ministers of the said business
in so far as it is not business with respect to which the Governor is by or under this
Constitution required to act in his discretion.
@page-SC1759
22. Bare reading of Clause (1) of Article 166 of the Constitution makes it clear that all
executive actions of the Government of a State should be expressed to be taken in the
name of the Governor. Clause (2) provides for the authentication of the orders and other
instructions made and executed in the name of the Governor. Clause (3) enables the
Governor to make rules for the more convenient transaction of the Government of the
State and for the allocation of business among the Ministers, usually known as 'Rules of
Business' or 'Business Rules'.
23. The learned counsel for the appellant contended that Article 166 of the Constitution
deals with 'Conduct of Government Business' and mandates that such business should be
performed in the manner laid down in Article 166. To put it differently, according to the
learned counsel, the provisions of Article 166 are mandatory and before any action is
taken, they are required to be strictly complied with. If the procedure prescribed by
Article 166 is not followed, the business cannot be said to be a 'business of the
Government of the State' and has no effect whatsoever.
24. The learned counsel for the respondents, on the other hand, submitted that the
provisions of Article 166 are directory and even if there is no strict compliance, the action
cannot be held illegal or invalid and the same can be upheld provided there is 'substantial'
compliance.
25. Now, let us see how the provision (Article 166 of the Constitution) has been
interpreted by this Court.
26. Article 166 came up for interpretation before this Court immediately after the
Constitution came into force and continued to come up for consideration from time to
time. Let us examine few leading cases wherein this Court had an occasion to deal with
the said provision.
27
. In Ujagar Singh and Ann v. State of Punjab, 1952 SCR 756, an order of detention was
made against the petitioner under the Preventive Detention Act, 1950. The detenu
challenged it in this Court by invoking Article 32 of the Constitution. One of the
contentions raised on his behalf was that the grounds of detention did not purport to state
that the authority making the order was the Governor of the State. AIR 1952 SC 350
28
. The Constitution Bench of this Court, however, negatived the contention. Interpreting
Article 166 of the Constitution, Chandrasekhara Aiyar, J. stated : AIR 1952 SC 350,
Para 7
"Under section 3 of the Preventive Detention Act, the authority to make the order is the
State Government. Section 166 (1) of the Constitution provides that all executive action
of the Government of a State shall be expressed to be taken in the name of the Governor.
The orders of detention expressly state that the Governor of Punjab was satisfied of their
necessity and that they were made by his order. The orders are signed no doubt by the
Home Secretary, but this is no defect. The communication of the grounds need not be
made directly by the authority making the order. Section 7 does not require this. The
communication may be through recognized channels prescribed by the administrative
rules of business."
(Emphasis supplied)
29
. In Dattatreya Moreshwar Pangarkar v. State of Bombay and Ors., 1952 SCR 612, the
petitioner was detained by an order passed by the District Magistrate, Surat in exercise of
powers conferred on him by the Preventive Detention Act, 1950. The petitioner moved
this Court by filing a writ petition under Article 32 of the Constitution challenging the
order of detention. One of the contentions raised by the petitioner in this Court was that
the order of confirmation of detention by the State Government was not in proper form
inasmuch as it was not made in the name of Governor as required by Clause (1) of Article
166 of the Constitution. AIR 1952 SC 181
30. The order passed by the Government read as under :

"Confidential letter
No. B. D. 11/1042-D (11) Home Department (Political) Bombay Castle, 28th April, 1951.
To,
The District Magistrate,
Surat.
Subject :- Preventive Detention Act, 1950 - Review of detention orders issued under the -
Reference your letter No. Pol. 1187/P, dated the 23rd February, 1951, on the subject noted
above.
2. In accordance with section 9 of the Preventive Detention Act, 1950, the case of
@page-SC1760
detenu Shri Dattatreya Moreshwar Pangarkar was placed before the Advisory Board
which has reported that there is sufficient cause for his detention. Government is
accordingly pleased to confirm the detention order issued against the detenu. Please
inform the detenu accordingly and report compliance.
3. The case papers of the detenu are returned herewith.
Sd/-
G. K. Kharkar,
for Secretary to the
Government of Bombay,
Home Department".
(Emphasis supplied)
31. It was urged on behalf of the detenu that the order of confirmation extracted
hereinabove had not been made in proper legal form and hence could not be said to be in
consonance with Article 166(1) i.e. in the name of the Governor. Learned Attorney
General, on the other hand, submitted that the omission to make and authenticate an
executive decision in the form mentioned in Article 166(1) of the Constitution did not
make the decision Illegal. It was argued by the Attorney General that there is distinction
between the taking of an executive decision and giving formal expression to the decision
so taken. It was stated that usually executive decision is taken on the office files by way
of notings or endorsements made by the Minister in charge and if every executive
decision has to be given a formal expression, the whole governmental machinery would
come to a standstill.
32
. Accepting the argument, negativing the contention of the detenu, holding the provision
directory and relying on a decision of the Federal Court in J. K. Gas Plant Manufacturing
Co. (Rampur) Ltd. and Ors. v. King Emperor, 1947 FCR 141, S.R, Das. J, stated : AIR
1947 FC 38
"In my opinion, this contention of the learned Attorney-General must prevail. It is well
settled that generally speaking the provisions statute creating public duties are directory
and those conferring private rights are imperative. When the provisions of statute relate to
the performance of a public duty and the case is such that to hold null and void acts done
in neglect of this duty would work serious general inconvenience or injustice to persons
who have no control over those entrusted with the duty and at the same time would not
promote the main object of the legislature, it has been the practice of the Courts to hold
such provisions to be directory only, the neglect of them not affecting the validity of the
acts done."
(Emphasis supplied)
33. His Lordship proceeded to say : "Strict compliance with the requirements of Article
166 gives an immunity to the order in that it cannot be challenged on the ground that it is
not an order made by the Governor. If. therefore, the requirements of that Article are not
complied with, the resulting immunity cannot be claimed by the State. This, however,
does not vitiate the order itself. The position, therefore, is that while the Preventive
Detention Act requires an executive decision, call it an order or an executive action for
the conformation of an order of detention under Section 11(1) that Act does not itself
prescribe any particular form of expression of that executive decision. Article 166 directs
all executive action to be expressed and authenticated in the manner therein laid down but
an omission to comply with those provisions does not render the executive action a
nullity. Therefore, all that the procedure established by laws requires is that the
appropriate Government must take a decision as to whether the detention order should be
confirmed or not under Section 11(1). That such a decision has been in fact taken by the
appropriate Government is amply proved on the record. Therefore, there has been, in the
circumstances of this case, no breach of the procedure established by law and the present
detention of the petitioner cannot be called in question."
(Emphasis supplied)
34. Agreeing with Justice Das, Mukherjea, J. said :
"The other contention raised by the learned Attorney-General involves consideration of
the question as to whether the provision of Article 186(1) of the Constitution is
imperative in the sense that non-compliance with it would nullify or invalidate an
executive action. The clause does not undoubtedly lay down how an executive action of
the Government of a State is to be performed; it only prescribes the mode in which such
act is to be expressed. The manner of expression is ordinarily a matter of form, but
whether a rigid compliance with
@page-SC1761
a form is essential to the validity of an act or not depends upon the intention of the
legislature. Various tests have been formulated in various judicial decisions for the
purpose of determining whether a mandatory enactment shall be considered directory
only or obligatory with an implied nullification for disobedience. It is unnecessary for our
present purpose to discuss these matters in detail.
In my opinion, Article 166 of the Constitution which purports to lay down the procedure
for regulating business transacted by the Government of a State should be read as a
whole. Under clause (3) the Governor is to make rules for the more convenient
transaction of such business and for allocation of the same among the Ministers in so far
as it does not relate to matters in regard to which the Governor is required to act in his
discretion. It is in accordance with these rules that business has to be transacted. But
whatever executive action is to be taken by way of an order or Instrument, It shall be
expressed to be taken in the name of the Governor in whom the executive power of the
State is vested and it shall further be authenticated In the manner specified in the rules
framed by the Governor. Clauses (1) and (2) of Article 166 in my opinion are to be read
together. Clause (1) cannot be taken separately as an Independent mandatory provision
detached from the provision of clause (2). While clause (1) relates to the mode of
expression of an executive order or instrument, clause (2) lays down the way in which
such order is to be authenticated; and when both these forms are complied with, an order
or instrument would be immune from challenge in a court of law on the ground that it has
not been made or executed by the Governor of the State".
35
. Again, in State of Bombay v. Purushottam Jog Naik, 1952 SCR 674, a similar view has
been taken by one more Constitution Bench of this Court, There also, the Court was
concerned with an order of detention which was confirmed by the State. There also, there
was no mention that the 'Governor' of Bombay was pleased to take the action as required
by Clause (1) of Article 166 of the Constitution. The Constitution Bench clarified that it
did not wish to encourage laxity of expression, nor to suggest that ingenious experiments
regarding the permissible limits of departure from the language of a statute or of the
Constitution would be worthwhile, but the Court must look into the 'substance' of Article
166 and not the 'form' of order. AIR 1952 SC 317
36
. The Court stated : AIR 1952 SC 317, Para 11

"The short answer in this case is that the order under consideration is 'expressed' to be
made in the name of the Governor because it says 'By order of the Governor'. One of the
meanings of 'expressed' is to make known the opinions or the feelings of a particular
person and when a secretary to Government apprehends a man and tells him in the order
that this is being done under the orders of the Governor, he is in substance saying that he
is acting in the name of the Governor and, on his behalf, is making known to the detenu
the opinion and feelings and orders of the Governor. In our opinion, the Constitution does
not require a magic incantation whichcan only be expressed in a set formula of words.
What we have to see is whether the substance of the requirements is there".
(Emphasis supplied)
37
. It Is profitable to refer at this stage, to a decision of larger Bench of seven Judges of this
Court in P. Joseph John v. State of Travancore-Cochin, (1955) 1 SCR 1011. In Joseph
John, a civil serremoved from service after holding a departmental inquiry wherein the
charges levelled against him were proved. The order of removal was upheld by the High
Court. The delinquent approached this Court. One of the contentions raised by the
employee was that the show cause notice issued to him was not in consonance with the
provisions of Article 166 of the Constitution since it was not expressed to have been
made in the name of Raj Pramukh. The notice was issued on behalf of the Government
and was signed by the Chief Secretary of the United State of Travancore-Cochin who had
under the Rules of Business framed by Rajpramukh was in charge of the portfolio of
"Service and Appointments" at the Secretariat level in the State. AIR 1955 SC 160
38. The Court referred to Dattatreya Moreshwar, wherein clauses (1) and (2) of Article
166 were held to be directory and it was observed that non-compliance with them did not
result in the order being invalid. It was further held that in order to determine whether
there was compliance with those provisions all that was necessary to be seen was whether
there had been 'substantial
@page-SC1762
stantial compliance' of the provisions of the Article.
39
. Reiterating the law laid down in earlier case, (Dattatreya Moreshwar), the Court stated;
AIR 1952 SC 181
"In the present case there can be no manner of doubt that the notice signed by the Chief
Secretary of the State and expressed to be on behalf of the Government and giving
opportunity to the petitioner to show cause against the action proposed to be taken against
him was in substantial compliance with the provisions of the article. The petitioner
accepted this notice and in pursuance of it applied for further time to put in his defence.
He was twice granted this time". AIR 1955 SC 160, Para 8
(Emphasis supplied)
40
. In Swadeshi Cotton Mills Co. Ltd. v. State Industrial Tribunal, U.P. and Ors., (1962) 1
SCR 422, a Constitution Bench of this Court held that where certain conditions precedent
have to be satisfied before an authority may pass an order, it is not necessary that the
satisfaction of those conditions should be recited in the order itself unless the statute
specifically requires it. Though it is desirable that it should be so reflected, but even
where the recital is not there on the face of the order, the order will not become illegal or
void ab initio. Only a burden is thrown on the authority passing the order to satisfy the
Court by other means that conditions precedent were complied with. AIR 1961 SC
1381
41
. In Major E.G. Barsay v. State of Bombay, (1962) 2 SCR 195, the question was whether
statutory consent was required for every individual member of the Delhi Police
Establishment or a general consent was enough. In that case, the Home Department of the
Government of Bombay addressed a letter to the Government of India on August 13,
1949 which read thus : AIR 1961 SC 1762
"...I am directed to state that this Government re-affirms, with reference to Section 6 of
the Delhi Special Police Establishment Act, 1946, the consent given for an indefinite
period under its letter No. 5042/ 4-D, dated the 6th November, 1946 to the members of
the Delhi Special Police Establishment exercising powers and jurisdiction in the area of
the province of Bombay".
42. Though the Court was not directly deciding the question whether a letter could be
treated as valid consent, but whether separate consent was required for every individual
member of the Delhi Police Establishment or general consent was enough. The Court
nonetheless held the consent valid as general consent was all that was required by law.
Though it did not remark on the form in which such consent should be given, i.e. the
letter, was correct or not, the fact that it could find nothing wrong with the consent raises
a strong presumption in favour of the argument that a letter can be a means of granting
consent by the State Government under Section 6.
43
. Another important aspect of the case was construction of Article 77 of the Constitution.
In Major Barsay, the appellant was a public servant who was prosecuted for an offence
under the Prevention of Corruption Act, 1947. Section 6 of the said Act required sanction
of the Central Government. The sanction accorded by the Government read thus : AIR
1961 SC 1762
"Now, therefore, the Central Government doth hereby accord sanction under section 197
of the Criminal Procedure Code (Act V of 1898) and section 6(1) (a) of the Prevention of
Corruption Act, 1947 (II of 1947) to the initiation of proceedings to prosecute in a Court
of competent jurisdiction the said Major E. G. Barsay and Shri H. S. Kochhar in respect
of the aforesaid offences and other cognate offences punishable under other provisions of
law.
Sd.
M. Gopala Menon,
Deputy Secretary to the Govt.of India."
(Emphasis supplied)
44. The requisite sanction thus had been granted by the Central Government and was
signed by the Deputy Secretary to the Government of India in the Ministry of Home
Affairs. The contention of the appellant, however, was that the provisions of Article 77 of
the Constitution were not complied with.
45. Article 77 of the Constitution reads thus;
77. Conduct of business of the Government of India.(1) All executive action of the
Government of India shall be expressed to be taken in the name of the President.
(2) Orders and other instruments made and executed in the name of the President
@page-SC1763
shall be authenticated in such manner as may be specified in rules to be made by the
President, and the validity of an order or instrument which is so authenticated shall not be
called in question on the ground that it is not an order or instrument made or executed by
the President.
(3) The President shall make rules for the more onvenient transaction of the business of
the Government of India, and for the allocation among Ministers of the said business.
46. Article 77 relates to conduct of business of the Government of India and is similar to
Article 166 of the Constitution which relates to conduct of business of the Government of
a State. It was contended that there was non-compliance with Clause (1) of Article 77
inasmuch as the executive action of granting sanction was not expressed to have been
taken in the name of the President. The sanction was, therefore, void.
47. The Court noted that Article 77 was corresponding to Article 166 which was subject
to judicial scrutiny by the Court in various cases. Then referring to those cases and
rejecting the contention, the Court said;
"The foregoing decisions authoritatively settled the true interpretation of the provisions of
Art. 166 of the Constitution. Shortly stated, the legal position is this : Art. 166(1) is only
directory. Though an impugned order was not issued in strict compliance with the
provisions of Art. 166(1), it can be established by evidence aliunde that the order was
made by the appropriate authority. If an order is issued in the name of the Governor and
is duly authenticated in the manner prescribed in Cl.(2) of the said Article, there is an
irrebuttable presumption that the order or instrument is made or executed by the
Governor. Any non-compliance with the provisions of the said rule does not invalidate
the order, but it precludes the drawing of any such irrebuttable presumption. This does
not prevent any party from proving by other evidence that as a matter of fact the order
has been made by the appropriate authority. Art. 77 which relates to conduct of business
of the Government of Indiais couched in terms similar to those in Art. 166 and the same
principles must govern the interpretation of that provision". AIR 1961 SC 1762, Para 25
(Emphasis supplied)
48
. In R. Chitralekha and Anr. v. State of Mysore and Ors., (1964) 6 SCR 368, a
Constitution Bench of this Court again had an occasion to consider a letter signed by the
Under Secretary to the Government, Education Department of the State of Mysore to a
Selection Board communicating the decision of the Government to prescribe interviews
for admission into colleges. Validity of the said letter was challenged on the ground that it
did not conform to the requirements of Article 166 of the Constitution as it was not
expressed in the name of the Governor. AIR 1964 SC 1823
49. The letter sent by the Education Department to the Selection Committee reads thus;
"Sir,
Sub : Award of marks for the "interview" of the candidates seeking admission to
Engineering Colleges and Technical Institutions.
With reference to your letter No. AAS.4.ADW/63/2491, dated the 25th June, 1963, on the
subject mentioned above, I am directed to state that Government have decided that 25 per
cent of the maximum marks........
Yours faithfully,
Sd/- S. NARASAPPA,
Under Secretary to Government,
Education Department."
(Emphasis supplied)
50. Referring to earlier cases and holding the letter valid and the decision of the State
Government, the majority observed that though the letter did not conform to the
provisions of Article 166 of the Constitution, it ex facie stated that an order to the effect
mentioned therein was issued by the Government and there was substantial compliance
with the provisions of Article 166 of the Constitution.
51
. In State of Uttar Pradesh v. Om Prakash Gupta, (1969) 3 SCC 775, this Court observed
that it had been repeatedly held that provisions of Article 166 (1) and (2) were 'directory'
and 'substantial' compliance with those provisions was sufficient. In that case, the order
impugned was made in the name of the State Government but was signed by the Chief
Secretary. The order was held valid. AIR 1970 SC 679
52. In Gulabrao Keshavrao Patil and Ors. v. State of Gujarat and Ors., (1996) 2 SCC 26.
the question of interpretation of Article 166 of the Constitution came up for consideration
@page-SC1764
in a matter under the Land Acquisition Act, 1894. The Court considered previous cases
and said :
".........Article 166(1) and (2) expressly envisage authentication of all the executive
actions and shall be expressed to be taken in the name of the Governor and shall be
authenticated in such manner specified in the rules made by the Governor. Under Article
166(3), the Governor is authorised to make the rules for the more convenient transaction
of the business of the Government of the State, and for the allocation among Ministers of
the said business insofar as it is not business with respect to which the Governor is by or
under the Constitution required to act in his discretion. In other words, except in cases
when the Government in his individual discretion exercises his constitutional functions,
the other business of the Government is required to be conveniently transacted as per the
Business Rules made by Article 166(3) of the Constitution. If the action of the
Government and the order is duly authenticated as per Article 166(2) and the Business
Rule 12, it is conclusive and irrebuttable presumption arises that decision was duly taken
according to Rules. The letter of the Section Officer is not in conformity with Rule 12
and Article 166(1) and (2), though under Rule 13 he is one of the authorised officers to
communicate the decision of the Government. In Major E.G. Barsay v. State of Bombay
this Court held that if an order is issued in the name of the President and is duly
authenticated in the manner prescribed in Article 77(2), there is an irrebuttable
presumption that the order is made by the President. Whereby the order does not comply
with the provisions of Article 77(2), it is open to the party to question the validity of the
order on the ground that it was not an order made by the President and to prove that it
was not made by the Central Government. Where the evidence establishes that the Dy.
Secretary on behalf of the Central Government made the order a delegate, the order
cannot be questioned. Therefore, it is necessary to show whether decision of the
Government is according to Business Rules". AIR 1961 SC 1762
53
. In J.P. Bansal v. State of Rajasthan and Ann, (2003) 5 SCC 134, this Court held that no
particular formula of words were required by Clause (1) of Article 166 of the
Constitution. It is enough if the requirement is substantially complied with. 2003
AIR SCW 1848
54. Referring to several earlier decisions, this Court stated;
"Clause (1) requires that all executive action of the State Government shall have to be
taken in the name of the Governor. Further, there is no particular formula of
wordsrequired for compliance with Article 166(1). What the Court has to see is whether
the substance of its requirement has been complied with. A Constitution Bench in R.
Chitralekha v. State of Mysore held that the provisions of the article were only directory
and not mandatory in character and if they were not complied with, it could still be
established as a question of fact that the impugned order was issued in fact by the State
Government or the Governor. Clause (1) does not prescribe how an executive action of
the Government is to be performed; it only prescribes the mode under which such act is
to be expressed. While clause (1) (sic) in relation to the mode of expression, clause (2)
lays down the ways in which the order is to be authenticated. Whether there is any
government order in terms of Article 166, has to be adjudicated from the factual
background of each case. Strong reliance was placed by learned counsel for the appellant
on L.G. Chaudhari to contend that for all practicable purposes the decision of the Cabinet
has to be construed as a government order, because three of the decisions taken by the
Cabinet have been implemented. As noted above, learned counsel for the State took the
stand that neither in the writ petition nor before the High Court, the Cabinet decision
itself was produced. In fact, the Cabinet memorandum and the order of the Cabinet show
that no decision was taken to pay any compensation. In this connection reference is made
to the Cabinet memorandum dated 18-3-1993 and Decision 57 of 1999. It was further
submitted that even if it is conceded for the sake of argument that such decision was
taken, the same cannot be enforced by a writ petition. 2003 AIR SCW 1848, Paras 7
and 8
AIR 1964 SC 1823
We need not delve into the disputed question as to whether there was any Cabinet
decision, as it has not been established that there was any government order in terms of
Article 166 of the Constitution. The Constitution requires that action must be taken by the
authority concerned in the name of the Governor. It is not till this formality is AIR
1961 SC 493
AIR 1963 SC 395
@page-SC1765
observed that the action can be regarded as that of the State. Constitutionally speaking,
the Council of Ministers are advisers and as the Head of the State, the Governor is to act
with the aid or advice of the Council of Ministers. Therefore, till the advice is accepted
by the Governor, views of the Council of Ministers do not get crystallised into action of
the State. (See : State of Punjab v. Sodhi Sukhdev Singh and Bachhittar Singh v. State of
Punjab.) That being so, the first plea of the appellant is rejected".
(Emphasis supplied)
55. We must, however, closely refer to two decisions of this Court on which strong
reliance was placed by the learned counsel for the appellant.
56
. In Bachhittar Singh v. State of Punjab, (1962) 3 SCR 713, the Constitution Bench of this
Court held that before Article 166 of the Constitution is invoked, essential ingredients
laid down therein must be complied with. AIR 1964 SC 1823
57. In Bachhittar Singh, the appellant, who was serving as Assistant Consolidation
Officer in the State of Pepsu was dismissed from service after a departmental inquiry
wherein it was proved that he was not 'above board'. Against the said order, he preferred
an appeal to the State Government. He, however, submitted an advance copy to the
Revenue Minister of Pepsu. The Minister called for the record of the case immediately
and wrote on the file that instead of dismissal, he should be reverted to his original post
of Qanungo. On the next day, the State of Pepsu merged in the State of Punjab. It was the
case of the appellant that the remarks amounted to an order which was orally
communicated to him by the Revenue Minister.
58. After the merger, the file was put up before the Revenue Minister of Punjab who
remarked that the charges were serious and put up a note: "C.M. may kindly advise". The
Chief Minister opined that the order of dismissal should be maintained. The said order
was then communicated to the appellant who challenged it by filing a petition in the High
Court which was dismissed. The appellant approached this Court.
59. It was, inter alia, contended by the appellant that the order passed by the Revenue
Minister of Pepsu reducing punishment from dismissal to reversion could not have been
reviewed by the successor Government. The record revealed that there was noting by the
Revenue Minister of Pepsu. Whether the noting could be said to be 'remarks' or 'order' but
it was not in dispute that it was never formally communicated to the appellant apart from
the fact that it was not expressed in the name of Governor. The case of the appellant
himself was that the 'order' was 'orally' communicated to him by the Revenue Minister.
60. The question before the Court was whether the 'noting' made by the Revenue Minister
could be said to be an 'order', and whether the provisions of Article 166 of the
Constitution could be said to have been complied with.
61. Dismissing the appeal and drawing distinction between the noting, remarks or opinion
expressed by a Minster on file and an order made by the Government, the Constitution
Bench stated;
"What we have now to consider is the effect of the note recorded by the Revenue
Minister of PEPSU upon the file. We will assume for the purpose of this case that it is an
order. Even so the question is whether it can be regarded as the order of the State
Government which alone, as admitted by the appellant, was competent to hear and decide
an appeal from the order of the Revenue Secretary. Art, 166(1) of the Constitution
requires that all executive action of the Government of a State shall be expressed in the
name of the Governor. Clause (2) of Art. 166 provides for the authentication of orders
and other instruments made and executed in the name of the Governor. Clause (3) of that
Article enables the Governor to make rules for the more convenient transaction of the
business of the Government and for the allocation among the Ministers of the said
business. What the appellant calls an order of the State Government is admittedly not
expressed to be in the name of the Governor. But with that point we shall deal later. What
we must first ascertain is whether the order of the Revenue Minister is an order of the
State Government i.e., of the Governor. In this connection we may refer to R. 25 of the
Rules of Business of the Government of PEPSU which reads thus :
"Except as otherwise provided by any other Rule, cases shall ordinarily be disposed of by
or under the authority of the Minister incharge who may by means of standing orders give
such directions as he
@page-SC1766
thinks fit for the disposal of cases in the Department. Copies of such standing orders shall
be sent to the Rajpramukh and the Chief Minister."
According to learned counsel for the appellant his appeal pertains to the department
which was in charge of the Revenue Minister and, therefore, he could deal with it. His
decision and order would according to him, be the decision and order of the State
Government. On behalf of the State reliance was, however, placed on R. 34 which
required certain classes of cases to be submitted to the Rajpramukh and the Chief
Minister before the issue of orders. But it was conceded during the course of the
argument that a case of the kind before us does not fall within that rule. No other
provision bearing on the point having been brought to our notice we would, therefore,
hold that the Revenue Minister could make an order on behalf of the State Government".
62. The Court proceeded to consider;
"The question, therefore, is whether he did in fact make such an order. Merely writing
something on the file does not amount to an order. Before something amounts to an order
of the State Government two things are necessary. The order has to be expressed in the
name of the Governor as required by clause (1) of Art. 166 and then it has to be
communicated. As already indicated, no formal order modifying the decision of the
Revenue Secretary was ever made. Until such an order is drawn up the State Government
cannot, in our opinion, be regarded as bound by what was stated in the file. As along as
the matter rested with him the Revenue Minister could well score out his remarks or
minutes on the file and write fresh ones".
(Emphasis supplied)
63. The Court concluded;
"The business of State is a complicated one and has necessarily to be conducted through
the agency of a large number of officials and authorities. The Constitution, therefore,
requires and so did the Rules of Business framed by the Rajpramukh of PEPSU provide,
that the action must be taken by the authority concerned in the name of the Rajpramukh.
It is not till this formality is observed that the action can be regarded as that of the State
or here, by the Rajpramukh. We may further observe that, constitutionally speaking, the
Minister is no more than an adviser and that the head of the State, the Governor or
Rajpramukh, is to act with the aid and advice of his Council of Ministers. Therefore, until
such advice is accepted by the Governor whatever the Minister or the Council of
Ministers may say in regard to a particular matter does not become the action of the State
until the advice of the Council of Ministers is accepted or deemed to be accepted by the
Head of the State. Indeed, it is possible that after expressing one opinion about a
particular matter at a particular stage a Minister or the Council of Ministers may express
quite a different opinion, one which may be completely opposed to the earlier opinion.
Which of them can be regarded as the "order" of the State Government? Therefore, to
make the opinion amount to a decision of the Government it must be communicated to
the person concerned. In this connection we may quote the following from the judgment
of this Court in the State of Punjab v. Sodhi Sukhdev Singh, AIR 1961 SC 493.
Mr. Gopal Singh attempted to argue that before the final order was passed the Council of
Ministers had decided to accept the respondent's representation and to reinstate him, and
that, according to him, the respondent seeks to prove by calling the two original orders.
We are unable to understand this argument. Even if the Council of Ministers had
provisionally decided to reinstate the respondent that would not prevent the Council from
reconsidering the matter and coming to a contrary conclusion later on, until a final
decision is reached by them and is communicated to the Rajpramukh in the form of
advice and acted upon by him by issuing an order in that behalf to the respondent.
Thus it is of the essence that the order has to be communicated to the person who would
be affected by that order before the State and that person can be bound by that order. For,
until the order is communicated to the person affected by it, it would be open to the
Council of Ministers to consider the matter over and over again and, therefore, till its
communication the order cannot be regarded as anything more than provisional in
character".
(Emphasis supplied)
[See also State of Bihar and Ors. v. Kripalu Shankar and Ors., (1987) 3 SCC 34) AIR
1987 SC 1554
64
. In our considered opinion, Bachhittar AIR 1963 SC 395
@page-SC1767
Singh has no application to the facts of the present case. As is clear, in Bachhittar Singh,
there was merely a 'noting' made by the Minister on the file. This Court held that merely
writing something on file does not amount to an 'order'. No formal order reducing the
punishment was ever made. Until such an order is drawn up by the State Government, it
could not take the character of Order since the Minister could change his mind and delete
the remarks. Moreover, the decision must also be communicated to the person concerned
which was absent in the case. To us, therefore, ratio laid down in Bachhittar Singh does
not help the appellant.
65
. It is also interesting to note at this stage that in subsequent cases, Bachhittar Singh was
relied upon for the proposition that in that case, the Constitution Bench of this Court held
the provisions of Article 166 of the Constitution mandatory. This Court, however, did not
uphold the argument and distinguished it on facts. For instance, in Chitralekha, the
Constitution Bench held Article 166 'directory'. As to Bachhittar Singh, the majority
observed that in that case, the order signed by the Revenue Minister was never
communicated to the party and, therefore, it was held that there was no effective order.
(See also State of Bihar v. Kripalu Shankar; Gulabrao Keshavrao Patil v. State of Gujarat;
J.P. Bansal v. State of Rajasthan). AIR 1964 SC 1823
AIR 1963 SC 395
AIR 1987 SC 1554
2003 AIR SCW 1848
66
. Another decision heavily relied upon by the appellant is a recent case in C.B.I. v. Ravi
Shankar Srivastava, (2006) 7 SCC 188. In that case, CBI instituted criminal proceedings
against the accused. The accused challenged the First Information Report (FIR) in the
High Court by invoking Section 482 of the Code of Criminal Procedure, 1973 inter alia
contending that the consent given by the State Government under Section 6 of the Delhi
Act for investigation of offences by Delhi Special Police Establishment and for operation
of the Delhi Act to the State was withdrawn by the State and CBI had no power to initiate
criminal proceedings. The High Court upheld the contention. CBI approached this Court.
2006 AIR SCW 3990
67. Allowing the appeal and setting aside the order of the High Court, this Court held that
there was no notification revoking the earlier one granting the consent. The letter on
which great emphasis had been laid by the accused did not indicate as to under what
authority such letter had been written. It was also not established that the person was
authorized to take such decision. It did not meet with the requirements of Article 166 of
the Constitution and could not, even conceptually be said to be a notification.
68
. To us, Ravi Shankar has no application to the case on hand. In a particular 'fact
situation', this Court held that there was no withdrawal of consent by the State
Government. For coming to such conclusion, the Court referred to several factors, such
as, it was merely a letter; it did not indicate the authority; there was nothing to show that
the person was authorized to take such decision, and as such, it did not meet with the
requirement of Article 166 of the constitution. 2006 AIR SCW 3990
69. In the present case, the decision produced by the respondent along with the counter-
affidavit filed by the Superintendent of Police, CBI, Bhopal clearly sets out all the
particulars required by Section 6 of the Delhi Act. It refers to the file/reference number,
name of the department, the authority from whom it was issued and communicated to the
concerned department of the Central Government. It, therefore, cannot be said that the
State Government had not granted consent under Section 6 of the Delhi Act.
70
. In Ravi Shankar, consent was granted by a notification. This Court, therefore, held that
it could not have been revoked by a letter, authenticity of which was not established and
was in cloud. In our judgment, it would be an impermissible leap of logic to deduce to
formulate a rule of law that consent can never be accorded except by issuing a
notification. 2006 AIR SCW 3990
71. A closer scrutiny of the relevant provisions of the Delhi Act also add credence to the
view which we are inclined to take. Section 3 refers to 'notification' and requires the
Central Government to issue notification specifying offences or class of offences to be
investigated by Special Police Establishment. Section 5 uses the term 'order' and enables
the Central Government to extend powers and jurisdiction of Special Police
Establishment to other areas not covered by
@page-SC1768
the Act. Section 6 which speaks of consent of State Government for the exercise of
powers and jurisdiction of the Special Establishment neither refers to 'notification' nor
'order'. It merely requires consent of the State Government for the application of the
Delhi Act. Parliament, in our considered opinion, advisedly and deliberately did not
specify the mode, method or manner for granting consent though in two preceding
sections such mode was provided. If it intended that such consent should be in a
particular form, it would certainly have provided the form as it was aware of different
forms of exercise of power. It, therefore, depends on the facts of each case whether the
consent required by Section 6 of the Delhi Act has or has not been given by the State
Government and no rule of universal application can be laid down.
72. On the facts stated hereinabove, there is no doubt that the State of Madhya Pradesh
has given consent as envisaged by Section 6 of the Delhi Act and prosecution instituted
by CBI against the appellant cannot be said to be without Jurisdiction. We see no
infirmity in the order passed by the trial Court and confirmed by the High Court. The
appeal, hence, deserves to be dismissed and we accordingly do so.
73. The appeal is dismissed accordingly.
Appeal dismissed.
AIR 2008 SUPREME COURT 1768 "Nirmal Kanta v. Ashok Kumar"
(From : 2002 AIHC 2084 (Punj and Har))
Smt. Nirmal Kanta (D) by L.Rs. v. Ashok Kumar and Anr.
East Punjab Rent Restriction Act (3 of 1949), S.13 - HOUSES AND RENTS -
EVICTION - TENANCY - DECREE - Eviction - Ground, creation of sub-tenancy -
Tenant allowed respondent, alleged sub-tenant to sit, fix and operate sewing machine
inside tenanted shop room - Evidence showing that respondent was assisting tenant in his
cloth business by helping customer to assess amount of cloth required for their particular
purposes - Tenant thus had not parted with exclusive possession of tenanted premises -
Creation of subtenancy and/or grant of sub-lease cannot be said to be established -
Respondent may at best be said to be licensee - Landlord not entitled to decree of eviction
on ground of sub-letting. (Para 16)
(2005) 1 SCC 31 (Ref.) 13
1998 AIR SCW 1080 : AIR 1998 SC 1240 (Ref.) 12, 16
AIR 1990 SC 1208 (Ref.) 11
Tilak Raj Bhandari, in person; Pramod B. Agarwala, Ms. Parveena Gautam, Nitin Kant
Setia, for Respondents.
Judgement
ALTAMAS KABIR, J. :- This appeal by special leave is directed against the judgment
and order dated 7th January, 2002, passed by the High Court of Punjab and Haryana at
Chandigarh in Civil Revision No. 2250 of 1984 filed under Section 15 of the East Punjab
Rent Restriction Act, 1949, (hereinafter called "the 1949 Act"). By the said Judgment, the
High Court set aside the order dated 25th October, 1983, passed by the Appellate
Authority and restored the order dated 13th August, 1983, passed by the Rent Controller
dismissing the appellant-landlords petition for eviction of the respondents under Section
13 of the 1949 Act. The facts relating to the filing of the eviction petition are set out in
brief hereinbelow. Reported in 2002 AIHC 2084
2. One Smt. Nirmal Kanta, wife of Shri T.R.Bhandari, filed the above-mentioned petition
under Section 13 of the 1949 Act seeking ejectment of the respondents herein from the
shop-room in question. Ejectment was sought on the ground that the tenant had not paid
the rents for the tenanted shop-room from 2nd March, 1982, till 15th June, 1982, when
the eviction petition was filed. It was also alleged that the conduct of the tenant was a
constant nuisance not only to the landlord but also to the neighbours as well and that the
landlord wanted to construct a first floor on the demised premises, which was being
obstructed by the tenant. A separate ground as to creation of sub-tenancy was also
pleaded along with some other grounds relating to installation of electric meter and an
attempt being made by the tenant to establish his own title to the suit property. The Rent
Controller dismissed the application on 13.8.1983 and against such order of dismissal of
his petition the appellant filed an appeal before the Appellate Authority. The Appellate
Authority allowed the appeal and set aside the order of the
@page-SC1769
Rent Controller by its judgment dated 14th June, 1984. The tenant, the respondent No. 1
herein, was directed to put the landlord/appellant in possession of the tenanted premises
within three months. The respondent No. 1/tenant filed Civil Revision No. 2250 of 1984
before the High Court against the order of the Appellate Authority and the same was
allowed on the finding that by allowing a tailor, even on payment, to sit in a part of the
shop-room with his sewing machine, while retaining his possession and rights as a tenant
over the premises leased to him, the respondent No. 1 /tenant did not create a sub-lease
and the tailor could at best be said to be a licensee. The High Court held that the appellant
landlord had failed to discharge his burden that there was a sub-letting of the demised
premises.
3. None of the other grounds appear to have been urged on behalf of the appellant-
landlord before the High Court, which set aside the Judgment of the Appellate Authority
only on the ground of alleged sub-letting. It is against the said order of the High Court
that the present Special Leave Petition has been filed.
4. At this juncture, it may be mentioned that the sole petitioner before the Rent Controller
died during the pendency of this appeal and she was substituted by her legal heirs in the
appeal. The appellant No. 1, Tilak Raj Bhandari, the husband of the deceased Nirmal
Kanta, who is an advocate, has appeared in person in support of the appeal.
5. He urged that the High Court had erred in reversing the well-considered judgment and
order of the Appellate Authority on a wrong understanding of the law relating to creation
of sub-tenancies by holding that even if it was established that the respondent No. 1
tenant had allowed the respondent No.2, a tailor, to sit inside a part of the demised
premises with his sewing machine for the purpose of stitching, the same would not
amount to creation of a subtenancy or a sub-lease. It was urged that by allowing the
respondent No.2 to use a portion of the demised premises, the respondent No. 1, had
parted with the exclusive possession of the said portion of the demised premises, thereby,
in fact, creating a subtenancy.
6. The appellant No. 1 urged that during the hearing of the application filed before the
Rent Controller under Section 13 of the 1949 Act, the Rent Controller had appointed a
Local Commissioner on 15th June, 1982, to visit the locale and to report the factual
position regarding the use of the portion of the demised premises by Lachman Singh
working as a tailor and as to whether, he had affixed his sewing machine, plied by feet,
on the floor at a particular point in the site plan. It was pointed out that the Local
Commissioner had reported that on his inspection in the presence of the parties, he found
that the tailor Master Lachman Singh was operating as a tailor from the point shown in
the site plan of the shop-room and that he had got a sewing machine plied by feet fixed to
the said spot.
7. The appellant No. 1 submitted that the report of the local commissioner had been
wrongly interpreted by the High Court, inasmuch as, it amply proved that a portion of the
shop-room had been sub-let to Lachhman Singh. He also submitted that the Appellate
Authority had correctly held that the respondent-tenant was liable to be evicted on
account of such sub-letting and the High Court had erred in reversing the said finding
upon holding that the fact that the alleged sub-tenant was found sitting inside the shop-
room would not alone establish the sub-tenancy and that if any person sits in the shop-
room for augmentation of the business of the tenant the plea of subtenancy could not be
accepted. The High Court further observed that the Rent Controller had arrived at the
correct finding that at best Lachman Singh was a licensee under the tenant and not a sub-
tenant as alleged by the appellant herein. The appellant submitted that the judgment of the
High Court was contrary to the law relating to licence and sub-tenancy and was liable to
be set aside and that of the Appellate Authority was liable to be restored.
8. On behalf of the respondents it was contended that in order to constitute a subtenancy,
one of the basic ingredients is that the tenant was required to part with possession of the
whole premises let out to him and that by allowing a person to sit in a portion of the
shop-room even if on payment of rent do not amount to sub-letting but at best could have
created a licence. It was urged that from the evidence on record it would be amply clear
that the respondent No. 1 had not parted with exclusive possession of the shop-room and
had only allowed the alleged sub-tenant to operate his sewing-machine from a portion of
the shop-room
@page-SC1770
and that too for the purpose of assisting the respondent No. 1 in his cloth business.
9. It was submitted that Lachhman Singh, the alleged sub-tenant, had been allowed to sit
in the shop-room to facilitate customers in taking measurements for the purpose of
buying cloth and as a master tailor, Lachhman Singh's job was to assist the customer to
assess the amount of cloth required for a particular purpose.
10. It was urged that even if the report of the local commissioner showed that a sewing-
machine had been affixed to the floor in a portion of the shop-room, that was not in the
nature of a sub-tenancy as alleged on behalf of the appellant, but in order to assist the
respondent No. 1 in his business. It was submitted that the Rent Controller, as also the
High Court, had very correctly assessed the situation in holding that at best it could be
said that a licence had been created by the respondent No. 1 in favour of Lachman Singh
in that portion of the shop-room where the sewing-machine had been affixed and from
where Lachman Singh was operating.
11
. In support of his submission learned counsel firstly relied upon the decision of this
Court in Delhi Stationers and Printers vs. Rajendra Kumar [(1990) 2 SCC 331] wherein
the meaning of sub-letting had been explained to mean transfer of an exclusive right to
enjoy the property in favour of a third party in lieu of payment of some compensation or
rent. It was observed that parting with legal possession meant parting with possession
with the right to include and to exclude others and that mere occupation is not sufficient
to infer either sub-tenancy or parting with possession. AIR 1990 SC 1208
12
. Reliance was also placed on the decision of this Court in Bharat Sales Limited v. Life
Insurance Corporation of India [(1998) 3 SCC 1] in which it was held that sub-tenancy or
sub-letting comes into existence when the tenant gives up possession of the tenanted
accommodation wholly or in part and puts another person in exclusive possession thereof
in such process. Rather, the scene is enacted behind the back of the landlord, concealing
the overt acts and transferring possession clandestinely to a person who is an utter
stranger to the landlord. It was further observed that it is the actual, physical and
exclusive possession of that person, instead of the tenant, which ultimately reveals to the
landlord that the tenant to whom the property was let out has put some other person into
possession of that property. 1998 AIR SCW 1080
13. The learned counsel for the respondent also referred to the decision of this Court in
Joginder Singh Sodhi vs. Amar Kaur [(2005) 1 SCC 31], in which, while dismissing the
special leave petition filed by the landlord this Court observed that as far as sub-letting
was concerned, two ingredients, namely, parting with possession and monetary
consideration therefor have to be established. It was submitted that neither of the two
ingredients had been proved in the instant case and all that was relied upon by the
Appellate Authority was the report of the local commissioner which indicated that
Lachhman Singh was operating from a portion of the shop-room where he had fixed a
feet-driven sewing machine. Regarding parting with exclusive possession learned counsel
submitted that the respondent No. 1 was always in possession of the entire shop-room
and the key of the shop-room was retained by him and till he opened the shop-room no
one had access thereto. Various other decisions were also referred to on behalf of the
respondents, which need not detain us.
14. The learned counsel submitted that there was no merit in the appeal and both the Rent
Controller and the High Court had correctly dismissed the eviction petition filed by the
appellant/landlord.
15. What constitutes sub-letting has repeatedly fallen for the consideration of this Court
in various cases and it is now well-established that a sub-tenancy or a sub-letting comes
into existence when the tenant inducts a third party/stranger to the landlord into the
tenanted accommodation and parts with possession thereof wholly or in part in favour of
such third party and puts him in exclusive possession thereof. The lessor and/or a
landlord seeking eviction of a lessee or tenant alleging creation of a subtenancy has to
prove such allegation by producing proper evidence to that effect. Once it is proved that
the lessee and/or tenant has parted with exclusive possession of the demised premises for
a monetary consideration, the creation of a sub-tenancy and/or the allegation of sub-
letting stands established.
16
. All the different cases cited on behalf of the parties are ad idem on this interpretation of
the law relating to the creation 1998 AIR SCW 1080
@page-SC1771
of a sub-tenancy or sub-letting. As was observed by this Court in the case of Bharat Sales
Limited (supra) the arrangement regarding the creation of a sub-tenancy or grant of a
sublease without the permission of the landlord has obviously to be done behind the
scene to prevent the landlord from coming to learn of such arrangement and it is only
after the landlord finds that stranger or a third party, other than the tenant, was occupying
the tenanted premises, does he become aware of the creation of such sub-tenancy or
granting of such sub-lease. In the instant case, from the report of the Local Commissioner
appointed by the Court it stands established that the respondent No.2, Lachhman Singh,
was, in fact, operating a feet-driven sewing machine from inside the shop-room
comprising the tenanted premises. The same has been interpreted in different ways by the
Rent Controller, the Appellate Authority and thereafter by the High Court. From the
evidence that has come on record, it appears that the respondent No. 2 had been
accommodated by the respondent No. 1 to assist him in his cloth business by helping
customers to assess the amount of cloth required for their particular purposes. The said
activity did not give the respondent No.2 exclusive possession for that part of the shop
room from where he was operating and where his sewing machine had been affixed. The
aforesaid issue has been correctly decided both by the Rent Controller as also the High
Court. In our view, the learned Appellate Authority has mis-construed the principles
relating to parting with exclusive possession which is one of the key ingredients for
arriving at a finding regarding the creation of a sub-tenancy or grant of a sub-lease. Since
from the report of the Local Commissioner it only appears that the respondent No.2 was
operating from a portion of the shop-room, it is quite clear that the respondent No. 1 had
not parted with exclusive possession of the tenanted premises as had been found both by
the Rent Controller and the High Court. The main ingredient of the creation of a sub-
tenancy and/or grant of a sub-lease not having been established, it may at best be said that
the respondent No.2 was a licensee under respondent No. 1 which would not entitle the
appellant-landlord to obtain a decree for eviction against the respondent No. 1 tenant on
the ground of sub-letting.
17. Since none of the other points appear to have been urged before either the Appellate
Authority or the High Court, we are not called upon to deal with the same.
18. The appeal accordingly fails and is dismissed.
19. There will be no order as to costs.
Appeal dismissed.
AIR 2008 SUPREME COURT 1771 "Bhikhubhai Vithlabhai Patel v. State of Gujarat"
(From : Gujarat)
Coram : 2 S. H. KAPADIA AND B. SUDERSHAN REDDY, JJ.
-2008.
Bhikhubhai Vithlabhai Patel and Ors. v. State of Gujarat and Ann
(A) Gujarat Town Planning and Urban Development Act (Presi. Act 27 of 1976), S.17(1)
(a), S.12(2)(o) - TOWN PLANNING - PLANNING AND DEVELOPMENT - WORDS
AND PHRASES - Sanction to draft development plan - Power of State Government to
sanction plan with substantial modifications - Not absolute or unfettered power -
Formation of opinion that modifications are necessary - Is precondition for exercise of
power - Such opinion must be formed on basis of material showing such necessity -
Order passed without forming requisite opinion held, void.
L.P.A. No. 1453 of 2005 D/-10/15-11-2006 and Misc. C.A. for Reviews No. 3165 of
2006, D/-14-02-2007 (Guj), Reversed.
Words and Phrases - 'So considered necessary' - Connotes active application of mind.
Words and Phrases - 'Necessary' - Means indespensable.
Section 17 indeed confers very wide powers on State Government in the matter of
sanctioning of draft development plan. S. 17(1)(a)(ii) Proviso provides that in cases
where the State Government is of opinion that the substantial modifications in the draft
development plan are necessary, it may, instead of returning them to the authority or the
authorised officer, publish the modifications so considered necessary along with the
notice in the prescribed manner inviting suggestions or objections with respect to the
proposed modifications. The State Government is entitled to publish the modifications
provided it is of opinion that
@page-SC1772
substantial modifications in the draft development plan are necessary. The expression 'is
of opinion' that substantial modifications in the draft development plan are necessary is of
crucial importance. Formation of opinion is a condition precedent for setting the law in
motion proposing substantial modifications in the draft development plan. Opinion to be
formed by the State Government cannot be on imaginary grounds, wishful thinking,
however, laudable that may be. Such a course is impermissible in law. The formation of
the opinion, though subjective, must be based on the material disclosing that a necessity
had arisen to make substantial modifications in the draft development plan. (Paras
19, 20, 21, 24)
The expression : 'so considered necessary' is again of crucial importance. The term
'consider' means to think over; it connotes that there should be active application of the
mind. In other words the term 'consider' postulates consideration of all the relevant
aspects of the matter. A plain reading of the relevant provision suggests that the State
Government may publish the modifications only after consideration that such
modifications have become necessary. The word 'necessary' means indispensable,
essential, unavoidable etc. etc. The formation of the opinion by the State Government
should reflect intense application of mind with reference to the material available on
record that it had become necessary to propose substantial modifications to the draft
development plan. The use of expressions 'is of opinion', that substantial modifications in
the draft development plan and regulations, 'are necessary', shows that S. 17 does not
confer any unlimited discretion on the Government. The discretion, if any, conferred
upon the State Government to make substantial modifications in the draft development
plan is not unfettered. There is nothing like absolute or unfettered discretion and at any
rate in the case of statutory powers. (Paras 25, 26, 32)
Order making substantial modifications in draft development plan passed by State
Government without forming of any opinion which is condition precedent for exercise of
power under S. 17 is void.
L.P.A. No. 1453 of 2005, D/- 10/15-11-2006 and Misc. C.A. for Review No. 3165 of
2006, D/- 14-2-2007 (Guj), Reversed. (Para 37)
(B) Gujarat Town Planning and Urban Development Act (Presi. Act 27 of 1976), S.17(1)
(a)(ii), Proviso - TOWN PLANNING - WRITS - Draft development plan - Grant of
sanction with substantial modifications - Opinion formed by State Government that
substantial modifications are necessary - Open to judicial scrutiny to extent of relevancy
of reasons to the opinion formed.
(C) Gujarat Town Planning and Urban Development Act (Presi. Act 27 of 1976), S.17(1)
(a)(ii), Proviso - TOWN PLANNING - PLANNING AND DEVELOPMENT - Sanction
to draft development plan with substantive modifications - Formation of opinion to that
effect by State Government - Must be substantiated by material on record - Not by
explanations subsequently given by decision making authority. (Para 35)
(D) Gujarat Town Planning and Urban Development Act (Presi. Act 27 of 1976), S.17 -
TOWN PLANNING - PLANNING AND DEVELOPMENT - Development plan -
Sanction by State Government - Provisions enabling State to impose restrictions on right
to use one's own land - Demand strict construction. (Para 37)
2002 AIR SCW 4939 : AIR 2003 SC 511 (Ref.) 4, 6, 12, 39
1999 AIR SCW 1579 : AIR 1999 SC 1912 : 1999 Cri LJ 2859 (Rel. on.) 27
AIR 1978 SC 851 (Rel. on, Pat. C) 35
AIR 1976 SC 1753 : 1976 Tax LR 726 (Rel. on) 31
AIR 1967 SC 295 (Rel. on) 29
AIR 1952 SC 16 (Rel. on, Pat. C) 35
Ashok H. Desai, S.H. Sanjanwala, T.R. Andhyarujina, Dushyant Dave, Sr. Advocates,
Shamik Sanjanwala, R.S. Sanjanwala, Ms. Meenakshi Arora, Dilip Kanojiya, Harsh
Parekh, for Appellants; R.P. Bhat, Sr. Advocate, Ms. Sumita Hazarika, Ms. Pinky Behera,
Ms. Hemantika Wahi, Prashant G. Desai, S.C. Patel, Tejas Patel, Subhashish Bhomick,
for Respondents.
Judgement
1. B. SUDERSHAN REDDY, J. :-Leave granted.
2. This appeal by special leave is directed against the common judgment and order dated
10-15th November, 2006 of the Gujarat High Court at Ahmedabad in LPA No. 1453 of
2005 and Miscellaneous Civil application for Review No. 3165 of 2006
@page-SC1773
dated 14th February, 2007; whereby the High Court dismissed the cross-objections filed
by the appellants in LPA No. 1453 of 2005. Essentially grievance in this appeal pertains
to the dismissal of cross objections preferred by the appellants.
3. The Gujarat Town Planning and Urban Development Act, 1976 (for short 'the said Act')
came into force with effect from February 1st, 1978. The State Government in exercise of
its power conferred under the provisions of the Act constituted Surat Urban Development
Authority (SUDA) which prepared a draft development plan whereby the lands belonging
to the appellants were proposed for designating the use of the lands for residential
purposes. The State Government having considered the draft development plan submitted
by SUDA sanctioned the plan in the modified form on January 31, 1986 whereby the
appellants' lands in question were reserved for "education complex of South Gujarat
University". The final development plan was accordingly brought into force with effect
from March 31, 1986. Neither the Area Development Authority nor the Authority for
whose purpose land has been designated in the final Development Plan initiated any steps
to acquire the lands of the appellants. The appellants having waited for a period of 10
years from the date of coming into force of the final development plan got served a notice
on the Authority concerned requiring it to acquire the land within six months from the
date of the service of such notice. However, no steps were taken by any of the authorities
proposing to acquire the lands. Instead SUDA in purported exercise of its power under
Section 21 of the Act sought to revise the development plan by reserving the lands in
question once again for education complex of South Gujarat University.
4
. The appellants challenged re-reservation of the lands for South Gujarat University on
various grounds which ultimately culminated in the judgment of this court in Bhavnagar
University vs. Palitana Sugar Mill (P) Ltd. and others1, This court in clear and categorical
terms laid down that Section 21 of the Act may impose statutory obligations on the part
of the State and the appropriate authority to revise the development plan but under the
garb of exercising the power to revise the development plan "the substantial right
conferred upon the owner of the land or the person interested therein" cannot be taken
away. It is observed : 2002 AIR SCW 4939
1 (2003) 2 SCC 111

"Para 38. Section 21 does not envisage that despite the fact that in terms of subsection (2)
of section 20, the designation of land shall lapse, the same, only because a draft revised
plan is made, would automatically give rise to revival thereof. Section 20 does not
manifest a legislative intent to curtail or take away the right acquired by a landowner
under Section 22 of getting the land defreezed..............."
5. The revised development plan submitted by SUDA was awaiting the sanction of the
State Government. The State Government in exercise of powers conferred by the proviso
to sub-clause (ii) of clause (a) of Section 17(1) of the Act proposed modifications in the
draft revised development plan submitted by SUDA and proposed to designate the land
under Section 12(2)(o) for "educational use". The appellants challenged the action on the
part of State Government in Issuing notification dated July 22, 2004 on various grounds.
During the pendency of the Writ Petition the State Government came out with final
notification dated September 28, 2004 designating the land in question for educational
use under Section 12(2)(o) of the Act. The appellants sought the leave of the court to
challenge the said notification also. The final notification was set aside on the ground that
there was no material before the Government on the basis of which the decision to
designate the lands for educational purposes could have been arrived at. The matter was
remitted for fresh consideration in the light of the observations and the directions issued
by the High Court.
6
. We have heard Shri Ashok H. Desai and Shri T.R. Andhyarujina, learned senior counsel
appearing for the appellants, Shri R. P. Bhatt, learned senior counsel for the State
Government and Shri Prashant G. Desai, learned counsel for SUDA. The contention of
the learned counsel for the appellants was that on a true interpretation of the provisions of
the said Act it was not open to the Government to designate the land in question as
education zone and secondly assuming that there is such a power, the exercise of the said
power by the preliminary Notification dated 22nd July, 2004 and final Notification dated
28th September, 2004 is not legal and bona fide particularly in the light of the fact that
the earlier reservation 2002 AIR SCW 4939
@page-SC1774
for a similar though not identical purpose, namely, education complex of South Gujarat
University was struck down by the Supreme Court in Bhavnagar University (supra).
7. The submission on behalf of the State Government was that the preliminary
notification issued by the Government with a proposal to use the land for educational
purpose under section 12(2)(o) of the Act is in conformity with the powers and the
objects sought to be served. The power of the State Government under Section 17(l)(a) is
very wide. It is entitled either to sanction the draft development plan as submitted by the
Authority or return the draft development plan for modification or make substantial
modifications in the draft development plan by itself after inviting suggestions and
objections. The Notification dated 22nd July, 2004 merely invited suggestions and
objections on the proposed use of the land for educational purposes. It was further
submitted that under Section 12(2)(o) of the Act the State Government can make
proposals for public or other purposes which have not been mentioned in sub-clause (a)
to (n) of Section 12(2). Therefore the State Government can propose reservations for
public purpose or can make designation of land for any purposes not mentioned in sub-
clause (a) to (n). It was submitted that the provisions of Sections 17(2), 20(1) and 20(2)
are not applicable in the appellants' case since these provisions relate to the lands kept for
reservation for the purpose of Area Development Authority or any other Authority for
whose purpose the land is reserved. This is not a case of reservation affecting the rights of
the appellants in any manner who are still entitled to develop the land in accordance with
the earmarked use/proposals.
8. Learned counsel for Surat Urban Development Authority while adopting the
submissions made by the counsel for the State Government contended that the State
Government and Urban Development Authority has power to create separate zone under
section 12(2)(o) of the Act.
9. We shall deal with the second contention, namely, whether the exercise of power by the
State Government is legal and bona fide? This issue is required to be considered in the
background of the relevant facts which are evident from the record.
10. The Urban Development Authority designated the present lands as part of the
residential zone in the development plan and submitted the same on 30th April, 1981 for
sanction to the State Government. The State Government by issuing notification under
the proviso to sub-clause (ii) of clause (a) of sub-section (1) of Section 17 deleted the
same from residential zone and the lands were sought to be reserved for education
complex of "South Gujarat University". The said plan was sanctioned under Section 17 of
the Act on 3rd March, 1986. The appellants after expiry of period of 10 years gave notice
under sub-section (1) of Section 20 calling upon the authority to acquire the land.
Nothing happened in the matter.
11. In the meanwhile, SUDA prepared and published the draft revised development plan
in respect of the lands under Section 13 of the Act once again reserving the land for
education complex of South Gujarat University. Notice regarding publication of the draft
revised development plan calling suggestions on the proposed draft revised development
plan was published in the Gazette on 29.2.1996. This was done in purported exercise of
the power under Section 21 of the Act whereunder the development authority is under
statutory obligation to revise the development plan at least once in 10 years from the date
on which the final development plan comes into force.
12
. The appellants filed writ petitions in the High Court of Gujarat challenging the action
rereserving the land in the draft revised development plan for the same purpose namely
education complex of South Gujarat University. The his ultimately culminated in the
judgment of this Court in Bhavnagar University (supra). This court held that : 2002
AIR SCW 4939
(i) Section 21 of the Act does not and cannot mean that substantial right conferred upon
the owner of the land or the person interested therein shall be taken away. It is not and
cannot be the intention of the legislature that what is given by one hand should be taken
away by the other.
(ii) It is further held that the statutory interdict of use and enjoyment of the property must
be strictly construed. It is well settled that when a statutory authority is required to do a
thing in a particular manner, the same must be done in that manner or not at all. The State
and other authorities while acting under the said Act are only creature of statute. They
must act within the four corners thereof.
@page-SC1775
(iii) It is further held that in spite of statutory lapse of designation of the land, the State is
not denuded of its power of eminent domain under the general law, namely, the Land
Acquisition Act in the event an exigency arises therefor.
13. The State Government unmindful of and undaunted by the judgment of this court
proposed to modify the draft revised development plan already submitted by the authority
in purported exercise of the power conferred by the proviso to sub-clause (ii) of clause (a)
of sub-section (1) of Section 17 of the Act by designating the land for educational use
under Section 12(2)(o) of the Act. The Government having considered the objections
issued final notification dated 28th September, 2004 confirming modifications proposed
in the preliminary notification.
14. The appellants filed a writ petition in the High Court of Gujarat challenging the
preliminary notification as well as the final notification on various grounds.
15. The High Court upon perusal of the records found that there is absolutely no material
on record except the noting of the Minister concerned suggesting change of use of the
land to education zone. The suggestion of the Chief Town Planner to place the entire area
in residential zone has been ignored. The Area Development Authority in the first
instance has suggested that the land in question be placed in residential zone. In the note
prepared and placed before the Minister concerned on 23 April, 2004 it was suggested
that the land should no more be reserved for the purpose of South Gujarat University and
should be placed in appropriate zone. The note further suggested that after releasing the
lands from reservation, the same should be placed under residential zone. On 21.7.2004
the Minister concerned passed the order which reads as under :
"......Reservation may be cancelled as suggested. However, (for the lands which are being
de-reserved) educational zone in terms of Section 12(2)(o) of the Gujarat Town Planning
and Urban Development Act be provided and notice be issued accordingly........."
16. It was pursuant to this direction, the preliminary notification dated 22nd July, 2004
came to be issued by the Government calling for objections and suggestions against the
proposed substantial modifications of the development plan. Point for consideration :
17. Whether the action of the State Government in issuing preliminary notification and
the final notification designaung the said lands for educational use is valid? Whether the
action is ultra vires?
18. Before we address ourselves to the questions for their determination it would be
appropriate to notice Sections 17 and 21 which are as under :
Section 17(1) (a) : On receipt of the draft development plan under Section 16, the State
Government may. by notification. -
(i) sanction the draft development plan and the regulation so received , within the
prescribed period, for the whole of the area covered by the plan or separately for any part
thereof, either without modification, or subject to such modification, as it may consider
proper; or
(ii) return the draft development plan and the regulations to the area development
authority or, as the case may be, to the authorized officer, for modifying the plan and the
regulations in such manner as it may direct :
Provided that, where the State Government is of opinion that substantial modifications in
the draft development plan and regulations are necessary, the State Government may,
instead of returning them to the area development authority, as the case may be, the
authorised officer under this sub-clause, publish the modifications so considered
necessary in the Official Gazette along with a notice in the prescribed manner inviting
suggestions or objections from any person with respect to the proposed modifications
within a period of two months from the date of publication of such notice; or
(iii) refuse to accord sanction to the draft development plan and the regulations and direct
the area development authority or the authorized officer to prepare a fresh development
plan under the provisions of this Act.
(b) Where a development plan and regulations are returned to an area development
authority, or, as the case may be, the authorized officer under sub-clause (ii) of clause (a),
the area development authority, or, as the case may be, the authorized officer, shall carry
out the modifications therein as directed by the State Government and then submit them
as so modified to the
@page-SC1776
State Government for sanction; and the State Government shall thereupon sanction them
after satisfying itself that the modification suggested have been duly carried out therein.
(c) Where the State Government has published the modification considered necessary in a
draft development plan as required under the proviso to sub-clause (ii) of clause (a), the
State Government shall, before according sanction to the draft development plan and the
regulations, take into consideration the suggestions or objections that may have been
received thereto, and thereafter accord sanction to the drafts development plan and the
regulations in such modified form as it may consider fit.
(d) The sanction accorded under? £[clause (a), clause (b) ] or clause (c) shall be notified
by the State Government in the Official Gazette and the draft development plan together
with the regulations so sanctioned shall be called the final development plan.
£These words, brackets and letters were substituted for the word, brackets and letter
"clause (b)" by Guj. 2 of 1999, S. 7(1).
(e) The final development plan shall come into force on such date as the State
Government may specify in the notification issued under clause (d) :
Provided that the date so specified shall not be earlier than one month from the date of
publication of such notification.
(2) Where the draft development plan submitted by an area development authority, as the
case may be, the authorized officer contains any proposals for the reservation of any land
for a purpose specified in clause (b) orßclause (n) or clause (o)] of subsection (2) of
section 12 and such land does not vest in the area development authority, the State
Government shall not include the said reservation in the development plan, unless it is
satisfied that such authority would acquire the land, whether by agreement or compulsory
acquisition, within ten years from the date on which the final development plan conies
into force.
ßThese words, brackets and letters were substituted for the word, brackets and letter
"clause (n)" by Guj. 2 of 1999, S. 7(2).
(3) A final development plan which has come into force shall, subject to the provisions of
this Act, be binding on the area development authority concerned and on all other
authorities situated in the area of the development plan.
(4) After the final development plan comes into force, the area development authority
concerned may execute any work for developing, re-developing or improving any area
within the area covered by the plan in accordance with the proposals contained in the
development plan.
Section 21. At least once in ten years from the date on which a final development plan
comes into force, the area development authority shall revise the development plan after
carrying out, if necessary, a fresh survey and the provisions of sections 9 to 20, shall, so
far as may be, apply to such revision."
19. A plain reading of Section 17 suggests that on receipt of draft development plan the
State Government may sanction the draft development plan, for the whole of the area
covered by the plan or separately for any part thereof; return the draft development plan
for modifying the plan in such a manner as may direct; but in cases where the State
Government is of opinion that the substantial modifications in the draft development plan
are necessary, it may, instead of returning them to the authority or the authorised officer,
publish the modifications so considered necessary along with the notice in the prescribed
manner inviting suggestions or objections with respect to the proposed modifications. It
may even refuse to accord sanction to the draft development plan and direct to prepare a
fresh development plan under the provisions of the Act. Indeed a very wide power is
conferred upon the State Government in the matter of sanctioning of the draft
development plan. In the instant case we are concerned with the action of the State
Government in making substantial modifications in the revised draft development plan.
Section 21 of the Act mandates that the same procedure as provided for preparation and
sanction of draft development plan including the one under section 17 would be
applicable even in respect of revision of development plan.
20. The State Government is entitled to publish the modifications provided it is of
opinion that substantial modifications in the draft development plan are necessary. The
expression "is of opinion" that substantial modifications in the draft development plan are
necessary is of crucial importance. Is there any material available on record which
@page-SC1777
enabled the State Government to form its opinion that substantial modifications in the
draft development plan were necessary? The State Government's jurisdiction to make
substantial modifications in the draft development plan is inter-twined with the formation
of its opinion that such substantial modifications are necessary in the draft development
plan. The State Government without forming any such opinion cannot publish the
modifications considered necessary along with notice inviting suggestions or objections.
We have already noticed that as on the day when the Minister concerned took the
decision proposing to designate the land for educational use the material available on
record were :
(a) the opinion of the Chief Town Planner;
(b) Note dated 23rd April, 2004 prepared on the basis of the record providing the entire
background of the previous litigation together with the suggestion that the land should no
more be reserved for the purpose of South Gujarat University and after releasing the
lands from reservation, the same should be placed under the residential zone.
21. It is true the State Government is not bound by such opinion and entitled to take its
own decision in the matter provided there is material available on record to form opinion
that substantial modifications in the draft development plan were necessary. Formation of
opinion is a condition precedent for setting the law in motion proposing substantial
modifications in the draft development plan.
22. Any opinion of the Government to be formed is not subject to objective test. The
language leaves no room for the relevance of a judicial examination as to the sufficiency
of the grounds on which the Government acted in forming its opinion. But there must be
material based on which alone the State Government could form its opinion that it has
become necessary to make substantial modification in the draft development plan.
23. The power conferred by Section 17(1)(a) (ii) read with proviso is a conditional power.
It is not an absolute power to be exercised in the discretion of the State Government, The
condition is formation of opinion - subjective, no doubt - that it had become necessary to
make substantial modifications in the draft development plan. This opinion may be
formed on the basis of material sent along with the draft development plan or on the basis
of relevant information that may be available with the State Government. The existence
of relevant material is a pre-condition to the formation of opinion. The use of word "may"
indicates not only a discretion but an obligation to consider that a necessity has arisen to
make substantial modifications in the draft development plan. It also involves an
obligation to consider which are of the several steps specified in sub-clauses (i), (ii) and
(iii) should be taken.
24. Proviso opens with the words "where the State Government is of opinion that
substantial modifications in the draft development plan and regulations are
necessary ......" These words are indicative of the satisfaction being subjective one but
there must exist circumstances stated in the proviso which are conditions precedent for
the formation of the opinion. Opinion to be formed by the State Government cannot be on
imaginary grounds, wishful thinking, however, laudable that may be. Such a course is
impermissible in law. The formation of the opinion, though subjective, must be based on
the material disclosing that a necessity had arisen to make substantial modifications in the
draft development plan.
25. The formation of the opinion by the State Government is with reference to the
necessity that may have had arisen to make substantial modifications in the draft
development plan. The expression : "so considered necessary" is again of crucial
importance. The term "consider" means to think over; it connotes that there should be
active application of the mind. In other words the term "consider" postulates
consideration of all the relevant aspects of the matter. A plain reading of the relevant
provision suggests that the State Government may publish the modifications only after
consideration that such modifications have become necessary. The word "necessary"
means indispensable, requisite; indispensably requisite, useful, incidental or conducive;
essential; unavoidable; impossible to be otherwise; not to be avoided; inevitable. The
word "necessary" must be construed in the connection in which ft is used. (See-Advanced
Law Lexicon, 3rd Edition, 2005; P. Ramanatha Aiyar)
26. The formation of the opinion by the State Government should reflect intense
application of mind with reference to the
@page-SC1778
material available on record that it had become necessary to propose substantial
modifications to the draft development plan.
27
. In J. Jayalalitha vs. U.O.I.2this Court while construing the expression "as may be
necessary" employed in Section 3 (1) of the Prevention of Corruption Act, 1988 which
conferred the discretion upon the State Government to appoint as many Special Judges as
may be necessary for such area or areas or for such case or group of cases to try the
offences punishable under the Act, observed : 1999 AIR SCW 1579
2 AIR 1999 SC 1912

"The legislature had to leave it to the discretion of the Government as it would be in a
better position to know the requirement. Further, the discretion conferred upon the
Government is not absolute. It is in "The nature of a statutory obligation or duty. It is the
requirement which would necessitate exercise of power by the Government. When a
necessity would arise and of what type being uncertain the legislature could not have laid
down any other guideline except the guidance of "necessity". It is really for that reason
that the legislature while conferring discretion upon the Government has provided that
the Government shall appoint as many Special Judges as may be necessary. The words
"as may be necessary" in our opinion is the guideline according to which the Government
has to exercise its discretion to achieve the object of speedy trial. The term "necessary"
means what is indispensable, needful or essential."
28. In the case in hand, was there any material before the State Government for its
consideration that it had become necessary to make substantial modifications to the draft
development plan? The emphatic answer is, none. The record does not reveal that there
has been any consideration by the State Government that necessity had arisen to make
substantial modifications to the draft development plan. We are of the view that there has
been no formation of the opinion by the State Government which is a condition precedent
for exercising the power under the proviso to Section 17(1)(a)(ii) of the Act.
29. In Barium Chemicals Ltd. vs. Company Law Board3this Court pointed out, on
consideration of several English and Indian authorities that the expressions "is satisfied",
"is of the opinion" and "has reason to believe" are indicative of subjective satisfaction,
though it is true that the nature of the power has to be determined on a totality of
consideration of all the relevant provisions. This Court while construing Section 237 of
the Companies Act, 1956 held :
3 AIR 1967 SC 295
"64. The object of S. 237 is to safeguard the interests of those dealing with a company by
providing for an investigation where the management is so conducted as to jeopardize
those interests or where a company is floated for a fraudulent or an unlawful object.
Clause (a) does not create any difficulty as investigation is instituted either at the wishes
of the company itself expressed through a special resolution or through an order of the
court where a judicial process intervenes. Clause (b), on the other hand, leaves directing
an investigation to the subjective opinion of the government or the Board. Since the
legislature enacted S. 637 (i) (a) it knew that government would entrust to the Board its
power under S. 237 (b). Could the legislature have left without any restraints or
limitations the entire power of ordering an investigation to the subjective decision of the
Government or the Board? There is no doubt that the formation of opinion by the Central
Government is a purely subjective process. There can also be no doubt that since the
legislature has provided for the opinion of the government and not of the court such an
opinion is not subject to a challenge on the ground of propriety, reasonableness or
sufficiency. But the Authority is required to arrive at such an opinion from circumstances
suggesting what is set out in sub-clauses (i), (ii) or (iii). If these circumstances were not
to exist, can the government still say that in its opinion they exist or can the Government
say the same thing where the circumstances relevant to the clause do not exist? The
legislature no doubt has used the expression "circumstances suggesting". But that
expression means that the circumstances need not be such as would conclusively
establish an intent to defraud or a fraudulent or illegal purpose. The proof of such an
intent or purpose is still to be adduced through an investigation. But the expression
"circumstances suggesting" cannot support the construction that even the existence of
circumstances is a matter of subjective opinion. That expression points out that there
must
@page-SC1779
exist circumstances from which the Authority forms an opinion that they are suggestive
of the crucial matters set out in the three sub-clauses. It is hard to contemplate that the
legislature could have left to the subjective process both the formation of opinion and
also the existence of circumstances on which it is to be founded. It is also not reasonable
to say that the clause permitted the Authority to say that it has formed the opinion on
circumstances which in its opinion exist and which in its opinion suggest an intent to
defraud or a fraudulent or unlawful purpose. It is equally unreasonable to think that the
legislature could have abandoned even the small safeguard of requiring the opinion to be
founded on existent circumstances which suggest the things for which an investigation
can be ordered and left the opinion and even the existence of circumstances from which it
is to be formed to a subjective process. These analysis finds support in Gower's Modern
Company Law (2nd Ed.) p. 547 where the learned author, while dealing with S. 165(b) of
the English Act observes that "the Board of Trade will always exercise its discretionary
power in the light of specified grounds for an appointment on their own motion" and that
"they may be trusted not to appoint unless the circumstances warrant it but they will test
the need on the basis of public and commercial morality." There must therefore exist
circumstances which in the opinion of the Authority suggest what has been set out in sub-
clauses (i), (ii) or (iii). If it is shown that the circumstances do not exist or that they are
such that it is impossible for any one to form an opinion therefrom suggestive of the
aforesaid things, the opinion is challengeable on the ground of non-application of mind or
perversity or on the ground that it was formed on collateral grounds and was beyond the
scope of the statute.
30. This Court while expressly referring to the expressions such as "reason to believe",
"in the opinion of observed : "Therefore, the words, "reason to believe" or "in the opinion
of do not always lead to the construction that the process of entertaining "reason to
believe" or "the opinion" is an altogether subjective to process not lending itself even to a
limited scrutiny by the court that such "a reason to believe" or "opinion" was not formed
on relevant facts or within the limits or as Lord Radcliffe and Lord Reid called the
restraints of the statute as an alternative safeguard to rules of natural justice where the
function is administrative."
31. In the Income-tax Officer, Calcutta and Ors. vs. Lakhmani Mewal Das4this court
construed the expressions "reason to believe" employed in Section 147 of the Income-tax
Act, 1961 and observed: the reasons for the formation of the belief must have a rational
connection with or relevant bearing on the formation of the belief. Rational connection
postulates that there must be a direct nexus or live link between the material coming to
the notice of the Income-tax Officer and the formation of his belief that there has been
escapement of the income of the assessee from assessment in the particular year because
of his failure to disclose fully or truly all material facts. It is not any or every material,
howsoever vague and indefinite or distant which would warrant the formation of the
belief relating to escapement of the income of the assessee from assessment. The reason
for the formation of the belief must be held in good faith and should not be a mere
pretence.
4 AIR 1976 SC 1753.
32. We are of the view that the construction placed on the expression "reason to believe"
will equally be applicable to the expression "is of opinion" employed in the proviso to
Section 17 (1) (a) (ii) of the Act. The expression "is of opinion", that substantial
modifications in the draft development plan and regulations, "are necessary", in our
considered opinion, does not confer any unlimited discretion on the Government. The
discretion, if any, conferred upon the State Government to make substantial modifications
in the draft development plan is not unfettered. There is nothing like absolute or
unfettered discretion and at any rate in the case of statutory powers. The basic principles
in this regard are clearly expressed and explained by Prof. Sir William Wade in
Administrative Law (Ninth Edn.) in the chapter entitled 'abuse of discretion' and under
the general heading the principle of reasonableness' which read as under :
"The common theme of all the authorities so far mentioned is that the notion of absolute
or unfettered discretion is rejected. Statutory power conferred for public purposes is
conferred as it were upon trust, not absolutely - that is to say, it can validly be used only
in the right and proper way which Parliament when conferring it is presumed to have
intended. Although the Crown's lawyers
@page-SC1780
have argued in numerous cases that unrestricted permissive language confers unfettered
discretion, the truth is that, in a system based on the rule of law, unfettered governmental
discretion is a contradiction in terms. The real question is whether the discretion is wide
or narrow, and where the legal line is to be drawn. For this purpose everything depends
upon the true intent and meaning of the empowering Act.
The powers of public authorities are therefore essentially different from those of private
persons. A man making his will may, subject to any rights of his dependents, dispose of
his property just as he may wish. He may act out of malice or a spirit of revenge, but in
law this does not affect his exercise of his power. In the same way a private person has an
absolute power to allow whom he likes to use his land, to release a debtor, or, where the
law permits, to evict a tenant, regardless of his motives. This is unfettered discretion. But
a public authority may do none of these things it acts reasonably and in good faith and
upon lawful and relevant grounds of public interest. The whole conception of unfettered
discretion is inappropriate to a public authority, which possesses powers solely in order
that it may use them for the public good. There is nothing paradoxical in the imposition
of such legal limits. It would indeed be paradoxical if they were not imposed."
33. The Court is entitled to examine whether there has been any material available with
the State Government and the reasons recorded, if any, in the formation of opinion and
whether they have any rational connection with or relevant bearing on the formation of
the opinion. The Court is entitled particularly, in the event, when the formation of the
opinion is challenged to determine whether the formation of opinion is arbitrary,
capricious or whimsical. It is always open to the court to examine the question whether
reasons for formation of opinion have rational connection or relevant bearing to the
formation of such opinion and are not extraneous to the purposes of the statute.
34. In the affidavit in reply filed on behalf of the State Government in the High Court, it
was averred what weighed with the State Government to exercise its power under Section
17(1)(a)(ii) of the Act was public interest at large. The State government thought it fit to
classify the lands in question for educational use so that there is a specific pocket of
educational institutional area in the fast developing city of Surat where its population in
the last decade, has almost doubled. If such educational institutional pockets in the
adjoining land, where there already exists the complex of South Gujarat University, are
not ensured in the development plan of the city like Surat, then, in that case, land would
not be available in future. This would resultantly make people to travel long distance
from the city area for educational purpose. Public interest parameter is undoubtedly a
valid consideration that could have been taken into account by the State Government. But
this aspect of the matter is stated for the first time in the affidavit in reply and is not born
out by the record. There is nothing on record suggesting as to what public interest
parameter weighed with the State Government. The question is : was there any material
available on record in support of what has been pleaded in the reply affidavit?
35. Be that as it may, the impugned preliminary notification itself does not reflect
formation of any opinion by the State Government that it had become necessary to make
substantial modifications in the draft development plan and, for that reason, instead of
returning in the plan, decided to publish the modifications so considered necessary in the
Official Gazette along with the notice inviting suggestions or objections with respect to
the proposed modifications. It is very well settled, public orders publicly made, in
exercise of a statutory authority, cannot be construed in the light of explanations
subsequently given by the decision making authority. Public orders made by authorities
are meant to have public effect and must be construed objectively with reference to the
language used in the order itself. (See - Gordhandas Bhanji5and Mohinder Singh Gill and
Ann vs. The Chief Election Commissioner, New Delhi6).
5 AIR 1952 SC 16
6 AIR 1978 SC 851
36. Neither the preliminary notification itself nor the records disclose the formation of
any opinion by the State Government much less any consideration that any necessity as
such had arisen to make substantial modifications in the draft development plan.
37. On consideration of the facts and the material available on record, it is established
@page-SC1781
that the State Government took the action proposing to make substantial modifications to
the plan without forming of any opinion, which is a condition precedent for the use of
power under proviso to Section 17(1)(a)(ii). The power, to restrict the use of land by the
owners thereof, is a drastic power. The designation or reservation of the land and its use
results in severe abridgment of the right to property. Statutory provisions enabling the
State or its authorities to impose restrictions on the right to use one's own land are
required to be construed strictly. The legislature has, it seems to us, prescribed certain
conditions to prevent the abuse of power and to ensure just exercise of power. Section 17
and more particularly the proviso to Section 17(1)(a)(ii) prescribes some of the conditions
precedent for the exercise of power. The order proposing to make substantial
modifications, in breach of any one of those conditions, will undoubtedly be void. On a
successful showing the order proposing substantial modifications and designating the
land of the appellants for educational use under Section 12(2)(o) of the Act has been
made without the State Government applying its mind to the aspect of necessity or
without forming an honest opinion on that aspect, it will, we have no doubt, be void.
38. For the view we have taken to strike down both the notifications and declare them
ultra vires it is unnecessary to go into various other contentions urged before us.
39
. The appellants are deprived of their right to use the land for residential purposes for over
a period of more than a quarter century. The Authority Included the land in the residential
zone but the State Government reserved the land for the purposes of South Gujarat
University but the authority for whose benefit it was required failed to acquire the land
leading to re-reservation of the land for the very same purpose which was ultimately
struck down by this Court in Bhavnagar University (supra). 2002 AIR SCW 4939
40. The present move of the State Government to designate the land for the educational
use under Section 12(2)(o) of the Act is declared ultra vires and void and this shall put an
end to the controversy enabling the appellants to utilize the land for residential purposes.
The authorities including the State Government shall accordingly do the needful, without
creating any further hurdle in the matter.
41. The appeal is, accordingly, allowed with costs.
Appeal allowed.
AIR 2008 SUPREME COURT 1781 "Neeldeep Investments (P) Ltd., M/s. v. The
Custodian"
M/s. Neeldeep Investments (P) Ltd. v. The Custodian and Ors.
Special Court (Trial of Offences Relating to Transactions in Securities) Act (27 of 1992),
S.3 - SPECIAL COURT - SECURITY TRANSACTION - APPEAL - SUPREME
COURT - Recovery of decretal amount - Application by custodian on behalf of Notified
party - Noticee creating difficulties in way of Court and Custodian, firstly, in passing of
decree and then in matter of its execution - Imposition of punishment and sentence on
noticee - Appeal - On consent arrived at between parties Supreme Court premitted
payment of amount in question by instalments - All instalments paid - Application by
custodian for modification of order on ground that amount in respect of one of the
decrees against noticee was not mentioned la order - Supreme Court modified/amended
decretal amount accordingly and directed payment of balance amount.
Constitution of India, Art.133. (Paras 15, 16)
L. Nageshwar Rao, Sr. Advocate, S.R. Mishra, Shallendra Narayan Singh, Vimla Chandra
S. Dave, for Appellants; Subramonium Prasad, for Respondents.
Judgement
1. ALTAMAS KABIR, J. :-This appeal has been filed under Section 10 of the Special
Courts (Trial of Offences Relating to Transactions in Securities) Act, 1992, challenging
the order passed by the learned Special Judge on 12.01.2005 in Show Cause Notice
No.26 of 2003 in Misc. Appeal No.470 of 1999 arising out of Misc. Petition No.43 of
1995. By his judgment and order dated 12.1.2005 the learned Special Judge came to a
finding that the conduct of the appellant herein through the noticee, Milan Dalal, son of
the Notified Party, Bhupen Dalal, was such as to repeatedly create difficulties in the way
of the Court and the Custodian, firstly, in passing the decree, and, thereafter,
@page-SC1782
in the matter of its execution. In the circumstances indicated in the order, the noticee,
Milan Dalai, was sentenced to undergo simple imprisonment for a period of 3 months and
was also directed to pay a fine of Rs. 2,000/-. The said order was suspended for a period
of 12 weeks within which period the appeal was filed in this Court and on 18.3.2005
notice was issued thereupon. While issuing the notice this Court directed that the stay
already granted by the Special Court would continue for a period of 4 weeks. On
29.4.2005 the stay granted was directed to continue until further orders.
2. On 5.1.2006 when the appeal was called on for hearing, this Court passed the
following order.
"We are prima facie of the opinion that having regard to the facts, the order under appeal
does not need to be interfered with. However, at the suggestion of the learned Solicitor
General we adjourn the matter to enable the appellant to consider whether the entire
decretal due of Rs.1,42,56,000/- can be paid.
The matter is adjourned by two weeks."
3. In order to appreciate the circumstances in which the aforesaid order came to be
passed, the facts leading to the filing of the Civil Appeal in this Court are briefly set out
hereunder.
4. Bhupen Dalal, the father of the noticee Milan Dalal, was declared to be a Notified
Party under the provisions of the Special Courts (Trial of Offences Relating to
Transactions in Securities) Act, 1992, hereinafter referred to as the '1992 Act'. The
Custodian under the said Act filed Misc. Petition No.43 of 1995 on behalf of the Notified
Party, Bhupen Dalai for recovery of 1,42,65,000/-with interest from M/s. Neeldeep
Investment Company Private Limited, the appellant herein. On 8.6.1995 the Special
Court passed a decree on that petition and noted that the Notified Party is a majority
shareholder of the judgment debtor M/s. Neeldeep Investment Company Private Limited,
along with noticee Milan Dalai. It was also noted that after Bhupen Dalai was notified
under the said Act the Custodian issued a public notice calling upon the parties to
disclose to him if any money was owed by them to the Notified Party. Despite such
public notice, the judgment debtor which was practically a family concern of the Notified
Party did not come forward to disclose that the judgment debtor owed huge amounts to
the Notified Party. It was noted that the Custodian came to know of the liability only on
account of information given by the Income Tax Department. It is on the basis of such
information that the Custodian had taken out the Misc. Petition No.45 of 1995.
5. The judgment debtor appeared in those proceedings and admitted the said liability and
on that basis a decree was passed against the judgment debtor by the learned Special
Judge.
6. In order to execute the decree the Custodian filed Misc. Application No.4 of 1999 and
on that application on 24.11.1999 the Court passed an interim order restraining the
judgment debtor and its Director from in any manner disposing of, transferring, alienating
or encumbering all of their properties. On behalf of the judgment debtor, the noticee filed
an affidavit disclosing that the judgment debtor had to recover substantial amounts from
six parties namely 1) M/s. Lighthouse Investments Limited, 2) Oceanic Investments
Limited, 3) Kalpvruksha Holdings and Investments Co. Pvt. Ltd., 4) Harisharan
Developers Private Limited, 5) M/s. S. Ramdas and 6) M/s. Anmol Chemicals (Guj)
Limited.
7. On the basis of the information disclosed by the noticee in his said affidavit on
15.12.1999, the Custodian took out garnishee notices. Pursuant to notice to the garnishees
they appeared and filed affidavits and the common defence taken was that though they
admittedly owed amounts to the judgment debtor, the said amounts were adjusted on
acceptance of shares of different companies by the judgment debtor towards repayment
of the dues. At that stage the Special Court passed order dated 19.9.2003 where reference
was made to the earlier order dated 24.11.1999. Show Cause Notice was issued pursuant
to the order dated 19.9.2003 under Section 11-A of the said Act wherein it was stated that
the noticee was to be tried for having disobeyed the order dated 24.11.1999. Although,
several defences were taken on behalf of the noticee, the learned Special Judge held by
his order dated 12.1.2005 that the conduct of the noticee showed that in the instant case
attempts had repeatedly been made to create difficulties in the way of the Court and the
Custodian, firstly. In the passing of the
@page-SC1783
decree and then in the matter of its execution. The learned Special Judge accordingly felt
that it would be appropriate to impose deterrent punishment on the noticee and sentenced
him to undergo simple imprisonment for a period of three months and to pay a fine of Rs.
2,000/- as stated hereinbefore.
8. It is in this background that on 20.1.2006 this Court passed the following order :
"It is proposed by learned counsel appearing on behalf of the appellant that his client will
pay an amount of Rs. 1,26,25,000/- (Rupees one crore twenty six lakhs and twenty five
thousands) (being the balance of the decretal amount of Rs. 1,42,00,000 (Rupees one
crore and forty two lakhs seventy five thousands) paid by the garnishee by three
instalments in the course of 2006. The first instalment shall be paid on 3rd April, 2006,
the second on 10th July and the third by 4th December, 2006.
The learned Solicitor General appearing on behalf of the Custodian has submitted that as
far as contempt proceedings are concerned, his client is willing to accept the offer of the
appellant but submits that this should not in any way affect the ultimate liability of the
appellant to pay the decreal amount.
In this view of the matter we adjourn the passing of the order on the basis of the consent
as arrived at between the parties, till 3rd April, 2006 when the petitioner will bring the
first instalment of the amount to Court. In the event the payment of all the instalments is
made as aforesaid, this appeal will stand allowed and the order of the High Court will
stand set aside and the garnishee notice will be discharged.
In default of payment of any one instalment or any portion thereof, the appeal will stand
dismissed and the impugned order of the High Court will become operative.
Adjourned to 3rd April, 2006."
9. Pursuant to the aforesaid order on 3.4.2006 the appellant brought two cheques towards
payment of the first instalment. The matter was directed to appear after 2 weeks to ensure
that the cheques were duly encashed. Subsequently, on 14.7.2006 it was recorded that the
second cheque which was payable on 10.7.2006 in terms of the order dated 20.1.2006 had
also been paid and that the third instalment was payable by 4.12.2006. The matter was
directed to be listed in the last week of December 2006, and, in the meantime, the hearing
of the garnishee notices before the Special Court, Murnbai, was stayed.
10. The matter thereafter appeared on 22.1.2007 when it was adjourned for a period of 4
weeks and then again on 23.2.07 it was adjourned for a further period of 4 weeks for
filing a rejoinder affidavit. A third adjournment of 4 weeks was granted on 30.3.2007 and
on 27.4.07 the matter was directed to be listed for final disposal in September, 2007.
11. The matter thereafter appeared for hearing on 14.11.2007 and on the said date after
hearing the parties the matter was adjourned further to enable the parties to file the facts
relating to the execution proceedings and the actual amount alleged to be due on account
of an error in the decretal amount which went unnoticed when the decree was passed.
12. Thereafter, an application was filed by the Custodian for modification of the order
passed in this appeal on 20th January, 2006. In the said application, it was clarified that
two separate decrees were passed by the Special Court against the respondent No. 1, one
was for recovery of a sum of Rs. 1,42,65,000/- with interest at the rate of 24% per annum
from the date of receipt of amount till payment and the other for a sum of Rs. 32,14,500/-
with interest at the rate of 15% per annum from the date of receipt of the amount till
payment. Despite the fact that two decrees had been passed for a total sum of Rs.
1,74,79,500/- in the decree the sum of Rs.1,42,65,000/- was mentioned together with
interest. It has been stated in the application that the total principal amount should be
mentioned as Rs. 1,74,79,500/- together with interest payable thereon instead of Rs.
1,42,65,000/- as indicated. By the said application, it was, therefore, prayed that the order
dated 20th January, 2006, was required to be modified by correcting the principal amount
mentioned in the decree to be Rs. 1,74,79,500/-minus Rs.15,75,000/-, which had already
been recovered, together with interest as decreed by the Special Court in its order dated
8th June, 1995.
@page-SC1784
13. The said application was also heard at the time of hearing of the appeal.
14. The fact that two separate decrees were passed for the sum of Rs.1,42,65,000/-and
Rs.32,14,500/- is not disputed, though, an attempt was made to establish that the two
were separate and would have to be dealt with separately. On behalf of the appellant it
was submitted that the order dated 20th January, 2006, had been fully implemented as the
entire decretal amount of Rs. 1,42,65,000/- had been paid in three instalments, and it is
only thereafter that an attempt was made by the Custodian to claim the further sum of
Rs.32,14,500/-together with interest thereon.
15. We do not see any force in the said submissions since both the decretal amounts
against the appellant have been mentioned in the order dated 19th September, 2003,
passed in Misc. Application No.470 of 1999 filed by the Custodian. We accordingly
allow the said application. The decretal amount shall be corrected to read as Rs.
1,59,04,500/- together with interest as decreed by the Special Court upon credit having
been given for Rs. 15,75,000/- which has already been recovered by the Custodian.
16. After taking into account the decretal amount as amended, together with interest as
directed by the Special Judge in his order dated 8th June, 1995 in M.P. 43/ 1995, the
appellant is directed to pay the balance decretal amount within 30th June, 2008, in three
equal instalments commencing from the month of April, 2008. The first of such
instalments shall be paid by 15th April, 2008, and the next two instalments by the 15th
day of May, 2008 and 30th June, 2008. The last instalment shall include any broken
amount left over after payment of the first two instalments. The hearing of the garnishee
notices before the Special Court, Mumbai, shall remain stayed till the said date, and in
case of default of such payment being made, this order will cease to be operative and the
order appealed against will stand revived.
18. The appeal is disposed of in the above terms.
Order accordingly.
AIR 2008 SUPREME COURT 1784 "Yogesh Ramchandra Naikwadi v. State of
Maharashtra"
(From : 2006 (4) AIR Bom R 583)
Coram : 2 K. G. BALAKRISHNAN AND R. V. RAVEENDRAN, J.
Civil Appeal No.2079 of 2008 (arising out of SLP (C) No. 8241 of 2006), D/- 7 -3 -2008.
Yogesh Ramchandra Naikwadi v. State of Maharashtra and Ors.
Constitution of India, Art.226 - WRITS - EDUCATION - CASTE SCRUTINY -
Education - Recalling of degree - Caste claim of appellant rejected by Scrutiny
Committee before admission to B.E. Course - Appellant given admission to B.E. Course
in reserved seat as per direction of H.C. - No allegation that caste certificate was forged -
Admission in fact was given 13 years back and degree secured 4 years back - Recalling
of degree in circumstances would not be proper - Conditions, however, imposed on
appellant for retaining his degree.
2006 (4) AIR Bom R 583, Reversed. (Para 7)
2004 AIR SCW 419 : AIR 2004 SC 1469 : 2004 Lab IC 556 (Expln.) 3, 4, 5, 6, 7
2000 AIR SCW 4303 : AIR 2001 SC 393 (Expln.) 3, 4, 5, 6, 7
Vinod A. Bobde, Sr. Advocate, Shivaji M. Jadhav, Rahul Joshi and Brij Kishor Sah, for
Appellant; Sanjay V. Kharde and Ms. Asha Gopalan Nair, for Respondents.
Judgement
K. G. BALAKRISHNAN, C.J.I. :- Leave granted. Heard learned counsel for the parties.
2. The appellant sought admission to Engineering course claiming the benefit of
reservation alleging that he belonged to 'Mahadeo Koli' - a scheduled tribe. The Scrutiny
Committee which verified the validity of his caste certificate, made an order dated
29.3.1995 rejecting his claim that he belonged to a Scheduled Tribe. The appellant
challenged the order of the scrutiny committee in W.P. No.2667/1995. In the said petition,
the Bombay High Court issued an Interim order directing the third respondent (Director
of Technical Education, State of Maharashtra) to accept the application of Appellant for
admission to BE course and process the same and give admission by treating him as a
candidate belonging to a scheduled tribe, with a condition that the admission, if granted,
will be provisional and subject to the final decision. In pursuance
@page-SC1785
of it, the appellant was admitted to the BE course by extending the benefit of reservation
under the quota for Scheduled Tribes. Eventually he completed the Engineering course
and was conferred a degree by the University of Pune on 31.3.2004.
3
. The writ petition filed by the Appellant was dismissed by order dated 28.3.2006,
upholding the order of the Scrutiny Committee, with a direction to the third Respondent
to take appropriate steps for recall of the degree granted to the appellant. The said order
of the High Court is challenged in this appeal by special leave. The only contention urged
by the appellant is that even if his scheduled tribe claim was rejected, he should not have
been denied the benefit of the degree obtained by him. In support of this contention, he
relied on the decisions of this Court in State of Maharashtra v. Milind, (2001) 1 SCC 4
and R. Vishwanatha Pillai v. State of Kerala, (2004) 2 SCC 105. 2000 AIR SCW 4303
2004 AIR SCW 419
2000 AIR SCW 4303, Para 37
4. In Milind, a Constitution Bench of this Court while rejecting the caste claim of first
Respondent therein, extended the benefit of retention of degree to him on the following
reasoning :-
"Respondent 1 joined the medical course for the year 1985-86. Almost 15 years have
passed by now. We are told he has already completed the course and may be he is
practicing as a doctor. In this view and at this length of time it is for nobody's benefit to
annul his admission. Huge amount is spent on each candidate for completion of medical
course. No doubt, one Scheduled Tribe candidate was deprived of Joining medical course
by the admission given to Respondent 1. If any action is taken against Respondent 1, it
may lead to depriving the service of a doctor to the society on whom public money has
already been spent. In these circumstances, this judgment shall not affect the degree
obtained by him and his practising as a doctor. But we make it clear that he cannot claim
to being to the Scheduled Tribe covered by the Scheduled Tribes Order. In other words,
he cannot take advantage of the Scheduled Tribes Order any further or for any other
constitutional purpose."
In Vishwanatha Pillai, this Court, following Milind, permitted one of the appellants
therein, who had been admitted to an Engineering Degree College against a seat reserved
for a scheduled caste and whose caste claim was negatived, to be allowed to take his
degree with the condition that he will not be treated as a Scheduled Caste candidate in
future either for securing employment or other benefits on the basis of the cancelled caste
certificate. 2004 AIR SCW 419
. In Milind, the question was whether the first respondent who belonged to 'Koshti' caste
could claim the benefit of ST reservation on the ground that it was a sub-tribe of 'Halba'
[Entry No. 19 in Part IX of the Constitution (Scheduled Tribes) Order 1950]. This Court
held that 'Koshti' was not a part of the Scheduled Tribe of Halba and that the entries in the
Scheduled Tribes Order could not be amended or expanded by any Authority. As a
consequence, the State's appeal was allowed and the claim of first respondent therein that
he belonged to a scheduled tribe was rejected. Having allowed the State's appeal, this
Court moulded the relief in exercise of its power under Article 142 by permitting the first
Respondent therein to retain the benefit of his degree (for the reasons extracted above).
Vishwanatha Pillai merely followed Milind. In Milind, there was a bona fide doubt as to
whether 'Halba-Koshti' could be considered as 'Halba'. In Vishwanatha Pillai, the
candidate's caste certificate was cancelled merely as a consequence of cancellation of his
father's caste certificate. Thus in Milind and Vishwanatha Pillai. the candidates apparently
believed that they belonged to a scheduled tribe/caste when they sought admission and
were admitted. Further, their caste certificates showing them as belonging to a scheduled
tribe/caste had not been invalidated when they were admitted to the course. The direction
in both cases permitting retention of degree was in exercise of power under Article 142 of
the Constitution. 2004 AIR SCW 419
2000 AIR SCW 4303
. There may however be cases where it will not be proper to permit the student to retain
the degree obtained by making a false claim. One example is where the candidates secure
seats by producing forged or fake caste certificates. There may be cases, where knowing
full well that they do not belong to a scheduled tribe/caste, candidates may make a false
claim that they belong to a scheduled tribe/caste. There may also be cases where even
before the date of admission, 2000 AIR SCW 4303
2004 AIR SCW 419
@page-SC1786
the caste certificates of the candidates might have been invalidated on verification by the
Scrutiny Committee. There may be cases where the admissions may be in pursuance of
interim orders granted by courts subject to final decision making it clear that the
candidate will not be entitled to claim any equities by reason of the admission. The
benefit extended in Milind and Vishwanatha Pillai, cannot obviously be extended
uniformly to all such cases. Each case may have to be considered on its own merits.
Further what has precedential value is the ratio decidendi of the decision and not the
direction issued while moulding the relief in exercise of power under Article 142 on the
special facts and circumstances of a case. We are therefore of the view that Milind and
Vishwanatha Pillai cannot be considered as laying down a proposition that in every case
where a candidate's caste claim is rejected by a caste verification committee, the
candidate should invariably be permitted to retain the benefit of the admission and the
consequential degree, irrespective of the facts.
7. We may therefore examine the facts of this case to decide whether the appellant should
be given any benefit and if so whether they should be similar to relief granted in Milind
and Vishwanatha Pillai. As the caste claim of the appellant had been rejected by the
Scrutiny Committee even before admission, this case stands on a different footing. But in
this case though the scrutiny committee had rejected the appellant's claim even prior to
his admission to the professional course, the High Court by order dated 22.6.1995 had
directed the Director of Technical Education to accept the admission form of appellant
without insisting upon the validation of caste and to process the same as if appellant
belonged to Scheduled Tribe, making it clear that admission if any made was provisional,
and if the appellant failed in his petition he will not be entitled to the benefit of degree he
may obtain. As observed in Milind, if the appellant's admission or degree is to be
annulled, it is to nobody's benefit as his seat cannot be offered to someone else. There is
also no allegation that appellant forged or faked the caste certificate. His admission to
engineering course was nearly thirteen years back and he secured the degree more than
four years back. We are therefore of the view that the appellant herein should be
permitted to retain the benefit of the degree but subject to terms. The first is that he shall
not claim or seek any further benefit by claiming to belong to a scheduled Tribe. The
second is that if the State has spent or incurred any expenditure on the appellant's
professional degree education by extending the benefit of exemption from payment of fee
or award of scholarship or by extending the benefit of concession in fee (that is less than
what is charged to general category students) by treating him as a Scheduled Tribe
candidate, the appellant cannot retain such financial benefits. The third Respondent may,
on behalf of the State Government, take appropriate steps to enquire and assess the
amount, if any spent on the appellant either towards fee, scholarship or by way of
concession in fee and make a demand on appellant for payment thereof. If the appellant
fails to pay the amount so found due within six months of the demand by the third
Respondent, the third Respondent may take steps for recalling the degree granted to the
appellant. If no amount is found to be due or if the amount determined and demanded is
paid by appellant, he may be permitted to retain the degree obtained by him.
8. The appeal is accordingly allowed in part, deleting the direction of the High Court to
the third respondent to take steps to recall the degree awarded to the appellant.
Appeal allowed.
AIR 2008 SUPREME COURT 1786 "Bal Krishna v. Bhagwan Das"
(From : Madhya Pradesh)*
PANTA, JJ.
Bal Krishna and Anr. v. Bhagwan Das (Dead) by L.Rs. and Ors.
(A) Specific Relief Act (47 of 1963), S.16(c) - CONTRACT - PLAINT - Suit for specific
performance of contract - Averment in plaint of plaintiffs readiness and willingness to
perform contract - Is mandatory. (Para 8)
(B) Specific Relief Act (47 of 1963), S.20 - CONTRACT - Specific performance - Relief
of, is discretionary - Considerations relevant for grant of such relief.
@page-SC1787
The relief for specific performance lies in the discretion of the Court and the Court is not
bound to grant such relief merely because it is lawful to do so. The exercise of the
discretion to order specific performance would require the Court to satisfy itself that the
circumstances are such that it is equitable to grant decree for specific performance of the
contract. While exercising the discretion, the Court would take into consideration the
circumstances of the case, the conduct of parties, and their respective interests under the
contract. No specific performance of a contract, though it is not vitiated by fraud or
misrepresentation, can be granted if it would give an unfair advantage to the plaintiff and
where the performance of the contract would involve some hardship on the defendant,
which he did not foresee. In other words, the Court's discretion to grant specific
performance is not exercised if the contract is not equal and fair, although the contract is
not void. (Para 8)
(C) Specific Relief Act (47 of 1963), S.16 - CONTRACT - AGREEMENT - Specific
performance - Agreement of reconveyance - Suit based on agreement for resale for lesser
consideration than for sale - Plaint allegation that by a second agreement for resale terms
of first agreement were made complete - Second agreement, however, making no
reference to first agreement - Resale promised under second agreement was for
consideration equal to sale consideration - Averments in plaint as well as evidence
adduced showing that plaintiff were ready and willing to perform contract only as per
first resale agreement - Plaintiff's held, not entitled to decree of specific performance.
(Paras 15, 16, 17)
(2005) 6 SCC 243 (Rel. on) 14
S.K. Gambhir, Sr. Advocate, D.M. Shali, Anil Sharma and T.N. Singh with him, for
Appellants; A.K. Chitale, Sr. Advocate, Niraj Sharma, Vikrant Singh Bais and Ms. Charu
Kapoor with him, for Respondents.
* First Appeal Nos. 93 and 118 of 1980, D/- 7-5-2002 (M.P.) (Indore Bench).
Judgement
1. P. P. NAOLEKAR, J. :-By this appeal, the appellants (plaintiffs in the suit) (hereinafter
referred to as the plaintiffs for the sake of convenience) have challenged the judgment
and order of the High Court dated 7.5.2002 whereby the suit filed by the plaintiffs on
10.5.1973 for specific performance of the contract to reconvey the suit property by
Manaklal, the predecessor-in-interest of respondents Nos. 1 and 2 herein (original
defendant No. 1 in the suit) (hereinafter referred to as the defendant for the sake of
convenience) was dismissed by the High Court.
2. The facts necessary are that the suit property was a joint family property of the
plaintiffs, namely, Bal Krishna and Ramanlal, both brothers and their late grandmother
Mainabai. The parents of the plaintiffs as also their grandfather late Ramnarayan Bhutda,
husband of late Mainabai had died much before the execution of the transaction in
dispute. On 19.7.1952, when the plaintiffs were minors, their late grandmother Mainabai
purporting to act for herself and as guardian of the plaintiffs executed a registered sale
deed vide Exhibit D/1 for consideration which was stated to be Rs.25,000/- in the sale
deed and delivered possession to the defendant/ vendee. Mainabai died on 1.3.1964 and
her legal representatives, besides the plaintiffs, were joined as pro forma defendants Nos.
2 to 14. In the plaint, it was pleaded by the plaintiffs that they being in need of funds
required for discharging the business debts of the joint family of the plaintiffs, their
grandmother Mainabai, for herself and as their guardian entered into an agreement with
the defendant, according to which a sale deed of the suit house was executed by her on
behalf of herself and as guardian of the plaintiffs in favour of the defendant and the
defendant was to execute an agreement of re-conveyance on certain terms and conditions
in favour of said Mainabai and the plaintiffs. Accordingly, Mainabai purporting to act on
her own behalf and also as guardian of the plaintiffs, who were both minors at that time,
executed a registered sale deed of the house on 19.7.1952 in favour of the defendant for
consideration which was stated in the deed to be a sum of Rs.25,000/-and delivered
possession of the house to him except one room and one gachhi which is still in
possession of the plaintiffs. Although the consideration mentioned in the sale deed was
stated to be Rs.25,000/-, as a matter of fact only a sum of Rs. 10,000/-was paid by the
defendant as consideration
@page-SC1788
which has been clearly accepted and acknowledged by the defendant in the agreement of
re-conveyance which he later executed in favour of Mainabai and the plaintiffs on the
same day. By this agreement, the defendant agreed to reconvey the house to Mainabai
and the plaintiffs after receiving from them the sum of Rs. 10,000/- and interest on this
amount. It was further pleaded by the plaintiffs that all essential terms of re-conveyance
not having been fully and properly stated in the aforesaid agreement which was executed
by the defendant on 19.7.1952, certain terms and conditions were notified by a further
agreement which the defendant executed in favour of the plaintiffs and their grandmother
Mainabai on 21.7.1952. The terms and conditions for re-conveyance as agreed and stated
in this document were as follows :
(1) The defendant No.1 will reconvey the house to Mainabai and the two plaintiffs
whenever they shall call upon him to do so by a notice in writing.
(2) For such re-conveyance, Mainabai and the two plaintiffs will be liable to pay the
defendant No. 1 the real and original amount which the later had paid to them for the
initial sale of the house, together with interest on it @ 6% per annum from the date of the
original sale to the date of re-conveyance.
(3) The amount which the defendant No. 1 shall realize by way of rent of the house in
question shall after deducting from it the amount spent by him on house-tax, water tax,
tokhat tax, electric charges and expenditure on repairs, be either paid to him to Mainabai
and the plaintiffs or credit for it shall be given to them towards the amount payable by
them for the reconveyance.
(4) No amount on account of electric charges or water charges shall be deducted by the
defendant No. 1 from the rent collected by him in case he was not required to pay the
same and it was collected by him from the tenants.
(5) It will be open to Mainabai and the plaintiffs to pay to the defendant No. 1 such sums
as they may like from time to time towards the price of reconveyance and the same shall
be accepted and accounted for by the defendant No. 1 when accounts shall be taken and
interest shall be calculated by 'kat-miti.
It was further pleaded in the plaint that towards the said agreement of reconveyance, the
plaintiffs had paid to the defendant Rs.1,000/- on 13.10.1953 and Rs.4,000/-on 1.2.1955
and the defendant has executed in their favour two receipts on 13.10.1953 and 1.2.1955
respectively. As per the plaint, according to the agreement of reconveyance, the plaintiffs
and defendants Nos. 2 to 14 were entitled to require the defendant (No. 1) to reconvey the
suit house to them by a registered deed after receiving from them the amount of
consideration payable to him as per that agreement. He had already been paid Rs.1,000/-
on 13.10.1953 and Rs. 4,000/- on 1.2.1955. He was further entitled to receive the balance
amount of Rs.5,000/- less the net rental income of the house received by him which was
to be ascertained after taking an account. For determining the precise balance of the
consideration payable to the defendant according to the agreement of reconveyance he
was to give an account of all sums collected by him as rent of the house and also of all
sums spent by him on account of taxes, repairs or any other charges and after deducting
the amounts spent by him from the payable amount realized as rent, to adjust the sum
towards the balance amount of Rs. 5,000/-and interest which was to be paid to him. On
7.5.1973, the plaintiffs had approached the defendant personally and requested him to
take the balance price of Rs. 5,000/- together with interest of Rs. 10,000/- by kat-miti and
after adjusting towards it the net rental income realized by him to be ascertained after an
account, to reconvey the house to the plaintiffs and defendants Nos. 2 to 14 by executing
a registered sale deed of the house in their favour at their own cost. Then in paragraph 12
of the plaint, it was averred that 'the plaintiffs have been and are ready and willing to
perform their part of the contract according to its true construction'. As per the plaint, the
cause of action accrued on service of notice on 9.5.1973 when the defendant failed to
comply with the plaintiffs notice dated 7.5.1973. For the purposes of court fee and
jurisdiction, the suit for specific performance was valued according to the consideration
for the re-conveyance on it by kat-miti from 19.7.1952 to the date when the defendant
failed to perform the contract in spite of notice taking into account the two payments of
Rs. 1,000/- and Rs. 4,000/- already made to the defendant. The amount of interest by kat-
miti on Rs. 10,000/- comes to Rs.6,930/-. Accordingly, the suit for specific performance
@page-SC1789
was valued at the total amount of Rs. 16,980/- for the purposes of court fee and
jurisdiction. The plaintiffs, inter alia, made a prayer that 'defendant No. 1 may be directed
to reconvey the suit house to the plaintiffs and defendants Nos. 2 to 14 by a registered
sale deed to be executed by him in consideration of Rs. 11,930/- and to deliver possession
of the same to them.
3. The defendant had died even before filing of the written statement which was then
filed by his legal representatives. It was denied in the written statement that the sale deed
dated 19-5-1952 was for consideration of Rs. 10,000/- only and not for Rs. 25,000/-.
Agreement of re-conveyance by Manaklal either on 19-7-1952 or 21-7-1952 was denied.
They also denied the terms set out in the agreement. It was submitted that the signature of
Manaklal was obtained by the plaintiffs on some papers in connection with a suit filed
against late Ramanandji, father of the plaintiffs and it appeared to them that false
agreement and receipts had been prepared by the plaintiffs using those signed papers. The
demand either oral or by any letter by the plaintiffs from late Manaklal for execution of
the sale deed was denied.
4. The trial court recorded the finding that the sale deed was for Rs. 25,000/- and not Rs.
10,000/-; that there was an agreement of re-conveyance between the parties but for a total
consideration of Rs. 25,000/-; that the agreement dated 21-7-1952, not the one dated 19-
7-1952, was enforceable; that the plaintiffs had paid Rs. 5,000/- to late Manaklal and they
had always been and were still willing to perform their part of the contract; that the suit
was within limitation; and that the plaintiffs were entitled to get the deed of re-
conveyance executed from the legal representatives of late Manaklal on payment of
balance amount of Rs. 20,000/-. On these findings, the plaintiffs claim for specific
performance was decreed with direction to the plaintiffs to pay or deposit the balance
consideration amount of Rs. 20,000/-.
5. Both parties aggrieved by the impugned judgment and decree of the trial court filed
first appeals before the High Court. The grievance of the plaintiffs was that the trial court
committed an error in holding that the sale deed dated 19.7.1952 was for a total sum of
Rs.25,000/- and that said amount was fixed as consideration for executing the deed of re-
conveyance. It was asserted that the plaintiffs were liable only to pay Rs. 10,000/- as
consideration amount to get the deed of re-conveyance from the legal representatives of
late Manaklal, whereas the legal representatives of late Manaklal (deceased defendant
No. 1) assailed the entire judgment and decree contending that the trial court erred in
holding that execution of the two agreements Ex.P/1 and Ex. P/2 was duly proved; that
the two documents were not only contradictory and Inconsistent but also suspicious. The
finding that a sum of Rs. 5,000/- was paid to late Manaklal and plaintiffs willingness to
perform their part of the contract were also challenged. It was submitted that as per the
plaintiffs own showing it was clear that they were never ready or willing to pay the entire
consideration for reconveyance as stipulated in the agreement Ex.P/2 and the plaintiffs
readiness and willingness was only to make the payment as per the agreement Ex.P/1
dated 19.7.1952 and not agreement Ex.P/2 dated 21.7.1952.
6. Both appeals - one filed by the plaintiffs and the other by legal representatives of late
Manaklal - were dismissed by the High Court on 10.4.1995. However, in letters patent
appeals, the judgment dated 10.4.1995 was set aside and the cases were remanded back to
the learned Single Judge for rehearing and deciding the matter afresh.
7. On remand, the High Court found that as per plaintiffs own showing a subsequent
agreement Ex.P/2 was entered into between the parties on 21-7-1952, i.e., two days after
execution of the agreement Ex.P/1 dated 19-7-1952. It was observed by the High Court
that although it was the case of the plaintiffs that the subsequent agreement Ex.P/2 was
executed by way of modification/clarification of the agreement Ex.P/1, but a bare reading
of the agreement Ex.P/2 would show that it was wholly an independent document making
absolutely no reference of Ex.P/1. So even if the agreement Ex.P/1 was executed between
the parties, the same stood substituted by a new agreement Ex.P/2 and the agreement
Ex.P/1 became non-existent and neither of the parties was obliged to perform the same.
The execution of the agreement Ex.P/2 was not seriously contested by the counsel for the
defendants and the High Court concurred with the finding of the trial court that the
factum of execution of agreement Ex.P/2 dated 21-7-1952 was duly established. The
High Court further considered whether the
@page-SC1790
plaintiffs were ready and willing to perform their part of the contract as per the agreement
Ex.P/2 and held that clause (c) of Section 16 of the Specific Relief Act, 1963 provides
that specific performance of a contract cannot be enforced in favour of a person who fails
to aver and prove that he has performed or has always been ready and willing to perform
the essential terms of the contract which are to be performed by him. Explanation (ii) to
clause (c) makes it clear that the plaintiff must aver performance of, or readiness and
willingness to perform, the contract according to its true construction. The compliance of
the requirement of Section 16(c) is mandatory and in the absence of necessary averment
in the plaint and in the absence of proof of the same that the plaintiff has always been
ready and willing to perform his part of the contract, a suit cannot succeed. The High
Court has held that the plaintiffs have failed to make averment and lead evidence to prove
their readiness and willingness to perform their part of the contract according to its true
construction, i.e., in accordance with the terms and conditions of the agreement dated
21.7.1952. The High Court has further held that although the sale deed was dated 19-7-
1952 and the agreement to re-conveyance was dated 21-7-1952 the only step taken by the
plaintiffs was to pay back the amount of Rs. 1,000/- on 13.10.1953 and amount of Rs.
4,000/- on 1-2-1955 and thereafter till the service of notice dated 7-5-1973 and 10-5-1973
when the suit was filed, no steps were taken by the plaintiffs on their part to show their
readiness or willingness to perform their part of the contract. Plaintiff No. 1 kept quiet
almost for 18 years after attaining majority and plaintiff No. 2 for 7 years, which is
indicative of callous indifference and wilful negligence on the part of the plaintiffs and,
therefore, they were held not entitled for equitable relief of specific performance of the
contract in their favour and consequently the decree for specific performance passed by
the trial court was set aside and plaintiffs suit was dismissed. However, the legal
representatives oflate Manaklal (original defendant No. 1 in the suit) were directed to pay
back to the plaintiffs a sum of Rs. 5,000/- with interest at the rate of 6 per cent per
annum. Aggrieved by this order, the plaintiffs have come up before this Court by filing a
special leave petition which has been converted into the present appeal.
8. Section 16 of the Specific Relief Act, 1963 (hereinafter referred to as "the Act")
corresponds with Section 24 of the old Act of 1877 which lays down that the person
seeking specific performance of the contract, must file a suit wherein he must allege and
prove that he has performed or has been ready and willing to perform the essential terms
of the contract, which are to be performed by him. The specific performance of the
contract cannot be enforced in favour of the person who fails to aver and prove his
readiness and willingness to perform essential terms of the contract. Explanation (ii) to
clause (c) of Section 16 further makes it clear that plaintiff must aver performance of, or
readiness and willingness to perform, the contract according to its true construction. The
compliance of the requirement of Section 16(c) is mandatory and in the absence of proof
of the same that the plaintiff has been ready and willing to perform his part of the contract
suit cannot succeed. The first requirement is that he must aver in plaint and thereafter
prove those averments made in the plaint. The plaintiffs readiness and willingness must
be in accordance with the terms of the agreement. The readiness and willingness of the
plaintiff to perform the essential part of the contract would be required to be
demonstrated by him from the institution of the suit till it is culminated into decree of the
court. It is also settled by various decisions of this Court that by virtue of Section 20 of
the Act, the relief for specific performance lies in the discretion of the court and the court
is not bound to grant such relief merely because it is lawful to do so. The exercise of the
discretion to order specific performance would require the court to satisfy itself that the
circumstances are such that it is equitable to grant decree for specific performance of the
contract. While exercising the discretion, the court would take into consideration the
circumstances of the case, the conduct of parties, and their respective interests under the
contract. No specific performance of a contract, though it is not vitiated by fraud or
misrepresentation, can be granted if it would give an unfair advantage to the plaintiff and
where the performance of the contract would involve some hardship on the defendant,
which he did not foresee. In other words, the courts discretion to grant specific
performance is not exercised if the contract is not equal and fair, although the contract is
not void.
@page-SC1791
9. As per the pleadings, the plaintiffs allegation is that on the date of the execution of the
said deed dated 19.7.1952, there was an agreement of resale entered into between the
parties on 19.7.1952 itself. It is further alleged that as the terms of the agreement dated
19.7.1952 were not complete, another supplementary agreement of reconveyance was
entered into and executed between the parties on 21.7.1952.
10. On 19.7.1952, an agreement is said to have been executed by Manaklal, predecessor-
in-title of the defendants in favour of the plaintiffs. As per that agreement, he had
purchased the suit house by a registered sale deed on the same day. Although an amount
of Rs.25,000/- has been mentioned in the sale deed as sale consideration, he had not paid
the said amount to the plaintiffs. He had only given Rs.10,000/- and the balance amount
has been paid by the plaintiffs which has been added to the amount and the amount of
Rs.25,000/- has been paid as sale consideration. When the resale of the house will be
executed, the plaintiffs will be required to pay only an amount of Rs. 10,000/- along with
interest and the sale deed will be executed. Execution of this document does not stand to
reason as to how the amount of Rs. 15,000/- has been paid by the plaintiffs to the
defendant to be included along with the amount of Rs. 10,000/- which has been paid by
him to show the consideration of Rs.25,000/- as sale consideration. When the need of
execution of the sale deed in favour of the defendant was alleged to be the plaintiffs need
of money on that date, then how it is that Rs. 15,000/- has been paid by the plaintiffs to
the defendant whereas only Rs. 10,000/-was secured by sale of the house to the
defendant. If the plaintiffs were in need of money and already possessed of Rs. 15,000/-,
then why they will sell the house for a consideration Rs. 10,000/- only. Apart from this
fact, the amount of Rs.10,000/- in the document is written by hand, whereas other
contents of the document are typed. The handwritten figure has not been initialled by the
defendant or the plaintiffs. The sale deed executed on 19.7.1952 shows that the
consideration for the sale of the house was paid : Rs.5000/- as cash and Rs.20,000/-by
way of Cheque No.877383 drawn on Punjab National Bank, Siyaganj Branch. Sale deed
does not show that the amount of Rs.10,000/- was paid in cash. Endorsement on the sale
deed shows that this amount was paid by cash and cheque to the plaintiffs before the
Registrar. These facts clearly belies the case of the plaintiffs that the sale deed was
executed for only amount of Rs.10,000/- and that agreement of resale was executed by
the defendant for a consideration of Rs. 10,000/- only. Both the courts have for different
reasons disbelieved this document. Execution of the document for resale on the date of
execution of the sale deed for different consideration by the defendant than the sale
consideration cannot be believed.
11. Ex.P/2 dated 21.7.1952 is a document executed by the defendant after execution of
the sale deed dated 19.7.1952 and the alleged document Ex.P/1 dated 19.7.1952. It is the
plaintiffs case that as the terms of Ex.P/1 were not complete, the second document was
executed on 21.7.1952. From a bare reading of the document dated 21.7.1952, it does not
appear to be so. The document Ex.P/2 dated 21.7.1952 does not refer to the document
dated 19.7.1952, nor is there any mention that the sale consideration was Rs. 10,000/-
only. This documents contends that the defendant had purchased the suit house for a
consideration of Rs.25,000/- by registered sale deed; and that the house was sold by the
plaintiffs as they were in need of money. It was agreed by the parties that whenever the
plaintiffs would want to purchase the house, then the sale deed would be executed by the
defendant in their favour on certain terms and conditions which have already been
referred by us. From a bare reading of this document, it does not appear that the
document was executed in pursuance of the first document. The document dated
21.7.1952 is an independent separate document wherein the defendant had agreed to
reconvey the house whenever asked for by the plaintiffs.
12. It is urged by Shri S. K. Gambhir, learned senior counsel for the appellants that on the
language used in clause (c) of Section 16 read with Explanation (ii), a contract may be
open to more than one construction and a plaintiff may allege the alternative construction
to which the contract may be open and claim relief on that basis. The true construction of
the contract would be that construction which is finally accepted by the court. The
plaintiffs suit would not be dismissed merely because one of the
@page-SC1792
constructions placed by the plaintiff to the contract was not accepted by the court where
the alternative construction is being alleged and proved.
13. In the present case, the plaintiffs placed reliance on paragraph 12 of the plaint where
it has been averred that the plaintiffs have been and are ready and willing to perform their
part of the contract according to its true construction. This construction is, no doubt, in
tune with the words used in clause (c) and its explanation (ii) of Section 16 of the Act, but
when one reads this averment in the context of the other averments made in the plaint,
then the averment made in paragraph 12 has a reference to the averments made in the
foregoing paragraphs of the plaint.
14
. In Syed Dastagtr v. T. R. Gopalakrishna Setty, AIR 1999 SC 3029, this Court has held in
para 9 as under : 1999 AIR SCW 2959
"......In construing a plea in any pleading, Courts must keep in mind that a plea is not an
expression of art and science but an expression through words to place fact and law of
ones case for a relief. Such an expression may be pointed, precise, some times vague but
still could be gathered what he wants to convey through only by reading the whole
pleading, depends on the person drafting a plea. In India most of the pleas are drafted by
counsel hence aforesaid difference of pleas which Inevitably differ from one to other.
Thus, to gather true spirit behind a plea it should be read as a whole. This does not
distract one from performing his obligations as required under a statute."
In Motilal Jain v. Ramdasi Devi (Smt.) and Others, (2000) 6 SCC 420, this Court has held
that an averment as to readiness and willingness in plaint is sufficient if the plaint, read as
a whole, clearly indicates that the plaintiff was always and is still ready and willing to
fulfil his part of the obligations. Such averment is not a mathematical formula capable of
being expressed only in certain specific words or terms. 2000 AIR SCW 2554
Further, in Umabai and Another v. Nilkanth Dhondiba Chavan (Dead) by LRs. and Anr.,
(2005) 6 SCC 243, this Court in para 30 has said as under :
"It is well settled that the conduct of the parties, with a view to arrive at a finding as to
whether the plaintiff-respondents were all along and still are ready and willing to perform
their part of contract as is mandatorily required under Section 16(c) of the Specific Relief
Act must be determined having regard to the entire attending circumstances. A bare
averment in the plaint or a statement made in the examination-in-chief would not suffice.
The conduct of the plaintiff-respondents must be judged having regard to the entirety of
the pleadings as also the evidences brought on records.
15. When the entire plaint is read, there is no reference of the agreement dated 21.7.1952
about which the plaintiffs have alleged that they are ready and willing to perform their
part of the contract as per the agreement. From the entire tenor of the plaint, it is clear
that the plaintiffs have pleaded for their readiness and willingness to perform their part of
the contract as per the agreement dated 19.7.1952. The agreement dated 21.7.1952 has
been referred to only for the purposes of accounting to be made for the payment of the
consideration for resale of property and there also the plaintiffs have specifically stated
that they have already paid Rs. 1,000/- on 13.10.1053 and Rs.4,000/- on 1.2.1955 and the
defendant is entitled to receive the balance of Rs.5,000/- less the net rental income of the
house received by him.
16. In the evidence also, the plaintiffs have throughout maintained that the agreement of
reconveyance was for a sale consideration of Rs.10,000/- only of which Rs.5,000/- has
already been paid - Rs.1,000/- on 13.10.1953 and Rs.4,000/-on 1.2.1955. There is no
specific statement made by the plaintiffs in examination-in-chief or in cross-examination
that plaintiff No.1 Bal Krishna and/or his brother plaintiff No.2 Ramanlal were/was ready
or are/ is ready and willing to pay the entire amount of Rs.25,000/- as consideration
amount to the defendant for reconveying the suit house. It may also be pertinent to note
that the finding recorded by the trial court that the sale consideration of the suit house
was Rs.25,000/- was even challenged by the plaintiffs by filing an appeal before the High
Court.
17. We have already recorded a finding that the document Ex.P/1 dated 19.7.1952 was
not executed by the defendant in favour of the plaintiffs. The document Ex.P/2 dated
21.7.1952, which has been executed after the sale deed dated 19.7.1952, was executed
@page-SC1793
by the defendant for reconveying the property in favour of the plaintiffs. That document
indicates that the consideration for the reconveyance would be Rs. 25,000/-. The
plaintiffs case throughout in the plaint as well as in the evidence was that they were and
are ready and willing to purchase the suit house for the consideration of Rs. 10,000/-. In
the absence of pleadings or proof by the plaintiffs as to their willingness and readiness to
perform their part of the contract and get the sale deed executed in their favour on
payment of Rs.25,000/-, no case is made out by the plaintiffs for specific performance of
the contract of reconveyance.
18. On the above findings, we need not go into the question whether it would have been
just, fair and equitable in the circumstances of the case to grant the relief of specific
performance to the plaintiffs exercising discretionary power in favour of the plaintiffs.
19. For the aforesaid reasons, the appeal is dismissed. However, in the circumstances of
the case, there shall be no order as to costs.
Appeal dismissed.
AIR 2008 SUPREME COURT 1793 "State of Maharashtra v. Madhukar Wamanrao
Smarth"
(From : Bombay)*
Criminal Appeal Nos. 520-521 with 522 to 527 of 2008 (arising out of SLP (Cri.) Nos.
5951-5952 with 7157-7162, 7164 and 8114 of 2007), D/- 24 -3 -2008.
State of Maharashtra v. Madhukar Wamanrao Smarth.
Criminal P.C. (2 of 1974), S.389 - BAIL - SENTENCE SUSPENSION - APPEAL -
CHEATING - FORGERY - BREACH OF TRUST - CONSPIRACY - Suspension of
sentence and grant of bail pending appeal - Accused convicted for cheating, preparing
and using forged documents, criminal breach of trust and conspiracy - Considering
gravity of offence sentences imposed by trial Court directed to run consecutively -
Suspension of sentence only on grounds that bail granted during trial was not misused -
And likelihood of delay in disposal of appeal - Improper.
Cri. A. Nos. 1698, 1775 of 2007 in Cri. A. No. 220 of 2007, D/-22-06-2007 and 29-06-
2007 (Bom), Respectively Reversed. (Para 11)
2005 AIR SCW 2199 : 2005 Cri LJ 2531 (Rel. on) 10
2004 AIR SCW 7409 : AIR 2005 SC 1481 : 2005 All LJ 1252 (Rel. on) 9
Shekhar Naphade, Sr. Advocate, Ravindra Keshavrao Adsure with him, for Appellant;
Ashok Srivastav, U.U. Lalit, Sr. Advocates, Satyajit A, Desai, Ms. Anagha S. Desai, P. N.
Gupta. Dr. R. S. Sundram, Gagan Sanghi, Mihir Y. Kanade, Porus Kotwal, Rameshwar
Prasad Goyal, Amol N. Suryawanshi, Naveen R. Nath, Lalit Mohini Bhat and A.
Dashratha with them, for Respondent.
* Crl. A. Nos. 1698 and 1775 of 2007 in Cri. A. No. 220 of 2007 respectively, dated 22-6-
2007 and 29-6-2007 (Bom) (Nagpur Bench).
Judgement
Dr. ARIJIT PASAYAT, J. :- Leave granted.
2. In each of these cases challenge is to the bail granted to the respondent by the Bombay
High Court, Nagpur Bench. Since all these appeals have a common matrix, they are taken
up together.
3. On the basis of allegations that the respondents were guilty of having committed
cheating, preparing forged and false documents for the purpose of cheating, using the said
documents as genuine, abetment of crime, committing criminal breach of trust by
forming criminal conspiracy in furtherance of their common intention, law was set into
motion.
4. They were convicted by the trial Court, and have preferred appeals before the High
Court and had prayed for grant of bail by suspension of sentence in terms of Section 389
of the Code of Criminal Procedure, 1973 (in short the 'Code'). The High Court primarily
granted bail to each of the respondents on the ground that bail was granted during trial
and the liberty was not misused. Further ground indicated was that there was likelihood
of delay in disposal of the appeals. In the case of respondent-Madhukar it was stated that
the evidence appeared to be scanty against him.
5. Questioning correctness of the order passed in each case, learned counsel for the State
submitted that there was large scale manipulation of records resulting in manipulation of
results of the candidates and each of the respondents had a definite role to play. Apart
from the cases where they have been convicted, large number of connected
@page-SC1794
cases are also pending. In the case of respondent-Yadav Nathoba Konchade, two cases
under the Prevention of Corruption Act, 1988 (in short 'PC Act') were pending. In one
case the said accused had offered bribe to the investigating officer and was caught red
handed. It was submitted that considering the gravity of the offence the sentences were
directed to run consecutively in terms of Section 31(1) of Code. It was stated that the
High Court was misled in the case of respondent-Madhukar who made a false statement
before the High Court that he had deposited fine amount while in fact he had not done so
as would be apparent from the second order. It was essentially submitted that without
indicating any plausible reason, much less, the reasons contemplated under Section 389
of the Code, the bail has been granted. The seriousness of the allegations for which the
accused respondents have been already convicted has been completely lost sight of.
6. Learned counsel for the respondents on the other hand submitted that the parameters
for grant of bail and cancellation of bail are different. It was submitted that some of them
are very elderly persons and have retired from services. It is not a case where any
irrelevant factor has been taken into consideration. It is pointed out on behalf of
respondent-Madhukar that the only link the said accused is stated to have centres round
two chits which were exhibited. They did not in any way establish the involvement of the
accused in the alleged crime. That is why in his case the High Court observed that the
evidence is scanty.
7. In reply, learned counsel for the State submitted that in some cases, for example,
accused Shamrao Kisanrao Kamlakar the ground for releasing him was the grant of bail
to co-accused. Further, the plea taken by Madhukar is not correct inasmuch as one of the
co-accused has categorically stated that pressure was exerted by accused Madhukar for
doing the illegal acts.
8. The factual details involved are as follows :
@page-SC1795
@page-SC1796
. The parameters to be observed by the High Court while dealing with an application for
suspension of sentence and grant of bail have been highlighted by this Court in many
cases. In Kishori Lal v. Rupa and Ors. (2004 (7) SCC 639) it was observed as follows :
"Section 389 of the Code deals with suspension of execution of sentence pending the
appeal and release of the appellant on bail. There is a distinction between bail and
suspension of sentence. One of the essential ingredients of Section 389 is the requirement
for the appellate Court to record reasons in
@page-SC1797
writing for ordering suspension of execution of the sentence or order appealed. If he is in
confinement, the said court can direct that he be released on bail or on his own bond. The
requirement of recording reasons in writing clearly indicates that there has to be careful
consideration of the relevant aspects and the order directing suspension of sentence and
grant of bail should not be passed as a matter of routine."
10
. The above position was re-iterated in Vasant Tukaram Pawar v. State of Maharashtra
(2005 (5) SCC 281). 2005 AIR SCW 2199
11. It is true that the parameters to be applied in cases where life or death sentence is
imposed, may not be applicable to other cases. But, the gravity of the offence, the
sentence imposed and several other similar factors need to be considered by the Court.
The fact that accused was on bail during trial is certainly not a relevant factor. This
position has been fairly conceded by learned counsel for the respondents. The reasons
indicated by the High Court for granting ball in our opinion do not satisfy the parameters.
It needs to be pointed out that the trial Court considering the gravity of the offence has
directed the sentences to run consecutively. This aspect has also not been considered by
the High Court. In the circumstances, the impugned order in each case is indefensible and
deserves to be set aside which we direct. But considering the fact that the High Court had
not applied correct principles it would be proper for the High Court to reconsider the
matter and for that purpose the matter is remitted to the High Court. Needless to say the
High Court shall consider all the relevant aspects and pass orders in accordance with law.
12. The appeals are allowed.
Appeals allowed.
AIR 2008 SUPREME COURT 1797 "Karnataka State Financial Corporation v. N.
Narasimahaiah"
(From : AIR 2004 Kant 46)
Coram : 2 S. B. SINHA AND LOKESHWAR SINGH PANTA, JJ.
Civil Appeal Nos. 610-612 of 2004, D/- 13 -3 -2008.
Karnataka State Financial Corporation v. N. Narasimahaiah and Ors.
(A) State Financial Corporations Act (63 of 1951), S.29 - FINANCIAL CORPORATION
- Rights of Corporation to make recovery - S.29 confers extraordinary power on
Corporation - Provision has therefore to be construed strictly. (Paras 9, 12)
(B) State Financial Corporations Act (63 of 1951), S.29, S.31 - FINANCIAL
CORPORATION - CONTRACT - Rights of Corporation to make recovery - Scope -
Exercisable only against defaulting industrial concern - Not against surety or guarantor -
Power to proceed against surety is given by S.31 - S.29 and S.31 do not control each
other.
Contract Act (9 of 1872), S.128.
The heading of S. 29 states 'Rights of financial corporation in case of default'. The default
contemplated thereby is of the industrial concern. Such default would create a liability on
the industrial concern. Such a liability would arise inter alia when the industrial concern
makes any default in repayment of any loan or advance or any installment thereof under
the agreement. In the eventualities contemplated under S. 29 of the Act, the Corporation
shall have the right to take over the management or possession or both of the industrial
concern. The provision does not stop there, It confers an additional right as the words 'as
well as' is used which confers a right on the corporation to transfer by way of lease or
sale and realize the property pledged, mortgaged, hypothecated or assigned to the
Corporation. S. 29 nowhere states that the Corporation can proceed against the surety
even if some properties are mortgaged or hypothecated by it. The right of the financial
corporation in terms of S. 29 must be exercised only on a defaulting party. There cannot
be any default as is envisaged in S. 29 by a surety or a guarantor. The liabilities of a
surety or the guarantor to repay the loan of the principal debtor arises only when a default
is made by the latter. The words 'as well as' play a significant role. It confers two different
rights but such rights are to be enforced against the same person, viz., the industrial
concern. (Paras 13, 14, 15)
It is true that sub-section (1) of S. 29 speaks of guarantee. But such a guarantee is meant
to be furnished by the Corporation in favour of a third party for the benefit of the
industrial concern. It does not speak about a surety or guarantee given in favour of the
Corporation for the benefit of the industrial concern. It is significant to notice
@page-SC1798
in this regard that sub-section (4) of S. 29 which lays down appropriation of the sale
proceeds only refers to 'industrial concern' and not a 'surety' or 'guarantor'. (Paras 15, 16)
The liability of a surety is made co-extensive with the liability of the principal debtor
only by virtue of S. 128 of Contract Act. The rights and liabilities of a surety and the
principal borrower otherwise are different and distinct. (Para 18)
An implied power of Corporation to proceed against a surety or guarantor cannot be read
in S. 29 on principle that a construction which effectuates the legislative intent and
purpose must be adopted. A statutory authority, may have an implied power to effectuate
exercise of substantive power, but the same never means that if a remedy is provided to
take action against one in a particular manner, it may not only be exercised against him
but also against the other in the same manner. (Paras 20, 21, 32)
Section 31 of the Act provides for a special provision. It, apart from the default on the
part of the industrial concern, can be invoked where the Financial Corporation requires an
industrial concern to make immediate repayment of loan or advance in terms of S. 30 if
and when such requirement is not met. The aforementioned provision could be resorted to
by the Corporation, without prejudice, to its rights under the provisions of S. 29 as also S.
69 of the Transfer of Property Act and for the said purpose it is required to apply to the
District Judge having appropriate Jurisdiction. It also provides for a relief against a surety
and not confined to the industrial concern alone. (Para 22)
It is thus clear that the intention of the Parliament in enacting Ss. 29 and 31 was not
similar. Whereas S. 29 consists of the property of the industrial concern, S. 31 takes
within its sweep both the property of the industrial concern and as that of the surety.
None of the provisions control each other. The Parliament intended to provide an
additional remedy for recovery of the amount in favour of the Corporation by proceeding
against a surety only in terms of S. 31 and not under S. 29 thereof. (Paras 22, 23, 27)
(C) State Financial Corporations Act (63 of 1951), S.31, S.29 - FINANCIAL
CORPORATION - OBJECT OF AN ACT - Scope - S.31 postulates an additional relief to
Corporation - What can be done by invoking S.29 can inter alia be done by invoking S.31
- It also provides for relief against surety - Relief available u/S.31 not limited to
interlocutory reliefs. (Paras 22, 23, 27)
(D) INTERPRETATION OF STATUTES - Interpretation of Statutes - External aids -
Object of statute - Relevant only when language is not clear. (Para 32)
(E) INTERPRETATION OF STATUTES - RECOVERY OF DUES - Interpretation of
Statutes - Act providing speedy remedy for recovery of dues - Court while weighing
between right of recovery and protection of right - Would lean in favour of person who
would be deprived. (Para 32)
2008 AIR SCW 208 : AIR 2008 SC 876 (Ref.) 26
2008 AIR SCW 390 (Ref.) 21
2007 AIR SCW 461 : AIR 2007 SC 767 (Ref.) 21
2007 AIR SCW 2897 : AIR 2007 SC 1753 (Ref.) 30
2007 AIR SCW 3752 : AIR 2007 SC 1984 (Ref.) 26
2006 AIR SCW 6460 (Ref.) 26
2005 AIR SCW 2676 : AIR 2005 SC 2821 (Ref.) 26
(2005) 3 WLR 554 : 2005 EWHC 817 (Ch) 30
(2005) ECHR 921 : 2005 (49) ERG 90 30
(2004) 6 SCC 758 (Ref.) 10
(2004) 11 SCC 625 (Ref.) 25, 34
2003 AIR SCW 1399 : AIR 2003 SC 1917 (Ref.) 21
(2003) 6 SCC 1 (Ref.)31
1994 AIR SCW 1953 : AIR 1994 SC 2151 (Ref.) 29
AIR 1987 SC 1023 (Ref.) 21
AIR 1985 SC 582 (Rel. on) 33
AIR 1980 SC 801 (Ref.) 34
AIR 1974 SC 2009 (Ref.) 34
AIR 1969 SC 932 (Ref.) 31
(1944) 12 ITR 458 (Ref.) 31
(1914-15) All ER (Rep) 1061 33
1897 AC 22 : 66 LJ Ch 35 (Ref.) 31
K.K. Venugopal, Sr. Advocate, Ms. Kiran Suri, S.J. Amith, Ms. Piparna Bhat and Ankur
Talwar, for Appellant; Vikas Rojipura, E.C. Vidya Sagar and P.P. Singh, for Respondents.
@page-SC1799
Judgement
S. B. SINHA, J. :- INTRODUCTION
1
. Interpretation of Section 29 vis-a-vis Section 31 of the State Financial Corporations Act,

1951 (for short "the Act") is in question in these appeals which arise out of a judgment
and order dated 26.03.2003 passed by a Division Bench of the Karnataka High Court in
Writ Petition Nos. 37209 and 37907 of 2000, 24452 of 2001, 13354 and 16614 of 2002.
reported in AIR 2004 Kant 46
FACTUAL BACKDROP
2. Respondents herein furnished sureties and/or guarantees in respect of the loans taken
by the industrial concerns (Respondent-Company) .
3. We may notice the fact of the matter from the case of AP Rocks Private Limited (Writ
Petition Nos. 37209 and 30907 of 2000) before the High Court.
AP Rocks Private Limited is an industrial concern. It approached the appellant
Corporation for grant of loan in the form of non-convertible debenture facility to the
extent of 100 lakhs to meet its working capital requirements.
Respondents who were Directors of Company executed deeds of guarantee dated
15.05.1996 and 9.08.1996 agreeing to guarantee repayment/redemption by the Company
to the Corporation of the said non-convertible debenture subscription together with
interest, etc. The said Company also executed a deed of hypothecation on or about
9.08.1996 whereby and whereunder its plants and machinery were hypothecated. A
collateral security agreement was also executed by Shri S.K. Rajan wherefor a property
bearing No. 49, House List Khata No. 100-A, Hennarayanapalya, Hemlet of
Cholanayakamahalli, Kasba Hobli, Bangalore North Taluka was mortgaged as a security
therefor.
Respondent No. 1 executed an agreement on 15.05.1996 in terms whereof his property
bearing Site No. 55 (old), New No. 59, Annammadevi Temple Extension, Subedar
Chatram Road, B. C. C. Division No. 22, Bangalore was given as a collateral security.
The 'Industrial Concern' allegedly committed defaults.
PROCEEDINGS
4. Appellant-Corporation on or about 20.11.2000 in exercise of its power under Section
29 of the Act directed that the possession of the said two properties of the guarantors be
taken over. Respondent No. 1 and Shri S.K. Rajan filed writ petitions before the
Karnataka High Court on the premise that the appellant-Corporation could not have
proceeded against the guarantors under Section 29 of the Act.
The High Court by reason of the impugned judgment while upholding the said contention
directed:
"(i) The impugned orders passed by the Karnataka State Financial Corporation under
Section 29 of the State Financial Corporations Act authorizing its officers to take
possession of the properties of petitioners are quashed.
(ii) The Karnataka State Financial Corporation is directed not to proceed against the
property of the surety, mortgaged/hypothecated in its favour, under Section 29 of the
State Financial Corporations Act.
(iii) Parties to bear their respective costs."
Appellant is, thus, before us.
SUBMISSIONS
5. Mr. K.K. Venugopal, learned senior counsel appearing on behalf of the appellant,
submitted :
(i) the High Court committed a serious error in passing the impugned judgment in so far
as it failed to take into consideration that the second part of Section 29 of the Act being
an independent provision and having not referred to an 'industrial concern', it was within
the jurisdiction of the appellant to take possession of the said property also.
(ii) Section 29 of the Act confers two independent rights, viz., taking over of the
mortgaged property and sale of the mortgaged, hypothecated and charged property.
Whereas first part of Section 29 of the Act covers taking over possession and/or
management of the mortgaged property, the second part thereof covers the case of sale of
the property mortgaged, irrespective of the fact as to whether the same belonged to the
industrial concern or not.
(iii) Section 29 having taken within its umbrage security and/or guarantee, the legislative
intent being speedy recovery of the dues, the same includes the power to take possession
of the mortgaged property of the guarantor also, being incidental to the main power
and/or implied power of the Corporation.
(iv) Section 31 confers the same benefit
@page-SC1800
to the Corporation with an additional remedy, viz., to pray for an interlocutory order.
(v) Section 69(c) of the Transfer of Property Act also confers power upon the mortgagee
to sale the charged property privately wherefor taking over of possession being not a pre-
requisite, the High Court committed a serious error in coming to the conclusion that
before a property is to be sold, taking over possession thereof is mandatory.
(vi) Section 31 of the Act would be applicable only when the loan is called back in terms
of Section 30 of the Act.
(vii) Special statutory power having been conferred on the Corporation so as to enable it
to recover its debts which serves a larger economic interest of the country, Sections 29
and 31 of the Act should be interpreted in such a manner which would help it to achieve
the said purpose.
6. Mr. Vikas Rojipura, learned counsel appearing on behalf of the respondents, on the
other hand, submitted :
(i) It is wrong to contend that similar reliefs can be claimed both under Sections 29 and
31 of the Act as in that event it was not necessary for the Parliament to enact two
different provisions.
(ii) Clause (aa) of sub-section (1) of Section 31 of the Act, which was inserted by Act No.
43 of 1985 with effect from 21.08.1985, clearly establishes that the purport and object of
two sections are absolutely distinct and separate.
(iii) Sections 29 and 31 confer two different rights on the Corporation which are
independent of each other. Whereas Section 29 provides for a limited remedy, Section 31
provides for a composite remedy to the Corporation to realize the dues both from the
principal borrower as also from the guarantor.
(iv) Remedy both under Sections 29 and 31 being equal, speedy and efficacious, it would
be wrong to contend that both the reliefs can be claimed simultaneously.
THE ACT
7. The Act was enacted to provide for the establishment of State Financial Corporations.
Appellant is a Corporation established and incorporated under the Act.
"Industrial concern" has been defined in Section 2(c) of the Act to mean any concern
engaged or to be engaged in any of the activities specified therein.
Section 29 of the Act provides for the rights of Financial Corporation to realize its dues in
case of default.
We may take notice of sub-section (1) of Section 29 of the Act which reads as under :
"29. Rights of Financial Corporation in case of default - (1) Where any industrial
concern, which is under a liability to the Financial Corporation under an agreement,
makes any default in repayment of any loan or advance or any instalment thereof or in
meeting its obligations in relation to any guarantee given by the Corporation or otherwise
fails to comply with the terms of its agreement with the Financial Corporation, the
Financial Corporation shall have the right to take over the management or possession or
both of the industrial concerns, as well as the right to transfer by way of lease or sale and
realize the property pledged, mortgaged, hypothecated or assigned to the Financial
Corporation."
Section 30 of the Act Inter alia provides for power to call for repayment before the agreed
period.
Section 31 provides for special provisions for enforcement of claims by Financial
Corporation. It reads as under :
"31. Special provisions for enforcement of claims by Financial Corporation. - (1) Where
an Industrial concern, in breach of any agreement, makes any default in repayment of any
loan or advance or any instalment thereof or in meeting its obligations in relation to any
guarantee given by the Corporation or otherwise fails to comply with the terms of its
agreement with the Financial Corporation or where the Financial Corporation requires an
industrial concern to make immediate repayment of any loan or advance under Section 30
and the industrial concern fails to make such repayment then, without prejudice to the
provisions of Section 29 of this Act and of Section 69 of the Transfer of Property Act,
1882 (4 of 1882), any officer of the Financial Corporation, generally or specially
authorised by the Board in this behalf, may apply to the District Judge within the limits of
whose jurisdiction the industrial concern carries on the whole or a substantial part of its
business for one or more of the following reliefs, namely -
(a) for an order for the sale of the property pledged, mortgaged, hypothecated or assigned
to the Financial Corporation as security
@page-SC1801
for the loan or advance; or
(aa) for enforcing the liability of any surety; or
(b) for transferring the management of the industrial concern to the Financial
Corporation; or
(c) for an ad interim injunction restraining the industrial concern from transferring or
removing its machinery or plant or equipment from the premises of the industrial concern
without the permission of the Board, where such removal is apprehended.
(2) An application under sub-section (1) shall state the nature and extent of the liability of
the industrial concern to the Financial Corporation, the ground on which it is made and
such other particulars as may be prescribed."
Section 32 of the Act provides for the procedure in respect of the proceedings before the
District Judge on applications under Section 31; sub-section (1A) whereof reads as
under :
"(1-A) When the application is for the relief mentioned in clause (aa) of sub-section (1)
of Section 31, the District Judge shall issue a notice calling upon the surety to show cause
on a date to be specified in the notice why his liability should not be enforced."
For enforcing a claim envisaged under clause (aa) of sub-section (1) of Section 31 of the
Act, a special procedure has been laid down in sub-section (4A) of Section 32 which
reads as under :
"(4A) If no cause is shown on or before the date specified in the notice under sub-section
(1A) the District Judge shall forthwith order the enforcement of the liability of the
surety."
Section 32-G of the Act, which was also inserted by Act No. 43 of 1985, provides for yet
another additional remedy to a Financial Corporation in the following terms :
"32G. Recovery of amounts due to the Financial Corporation as an arrear of land revenue
-
Where any amount is due to the Financial Corporation in respect of any accommodation
granted by it to any industrial concern, the Financial Corporation or any person
authorised by it in writing in this behalf, may, without prejudice to any other mode of
recovery, make an application to the State Government for the recovery of the amount
due to it, and if the State Government or such authority, as that Government may specify
in this behalf, is satisfied, after following such procedure as may be prescribed, that any
amount is so due, it may issue a certificate for that amount to the Collector, and the
Collector shall proceed to recover that amount in the same manner as an arrear of land
revenue."
INTERPRETATION - SECTION 29 ISSUE
8. A lender of money under the common law has the remedy to file a suit for realization
of the amount lent if the borrower does not repay the same. The Act, however, provides
for a special remedy in favour of the Financial Corporation constituted thereunder
enabling it to exercise a statutory power of either selling the property or take over the
management or possession or both belonging to the industrial concern.
9. Section 29, therefore, confers an extraordinary power upon the 'Corporation'. It, being
a 'State' within the meaning of Article 12 of the Constitution of India, is expected to
exercise its statutory powers reasonably and bona fide.
10. Apart from the said constitutional restrictions, the statute does not put any embargo
upon the Corporation to exercise its power under Section 29 of the Act. Indisputably, the
said provision was enacted by the Parliament with a view to see that the dues of the
Corporation are realized expeditiously. When a statutory power is conferred, it is a trite
law that the same must be exercised within the four corners of the Statute. Power of a
lender to realize the amount lent either by enforcing the charged and/or hypothecated or
encumbrance created on certain property and/or proceeding simultaneously and/or
independently against the surety/guarantor is a statutory right. Different statutes provide
for different remedies. We may by way of example refer to Pawan Kumar Jain v.
Pradeshiya Industrial and Investment Corporation of U.P. Ltd. and others [(2004) 6 SCC
758] where a statutory mandate has been given to realize the dues from sale of the
mortgaged properties and then to sell other properties of the borrower. We are, however,
not concerned with such a situation.
11. Such a right can also indisputably be conferred by way of contract as has been
provided for under Section 69 of the Transfer of Property Act in terms whereof a
mortgagee
@page-SC1802
is entitled to effect sale without the intervention of the court, subject, of course, to the
limitations prescribed therein.
12. If special provisions are made in derogation to the general right of a citizen, the
statute, in our opinion, should receive strict construction. 'Industrial concern' has been
defined under the Act. For the purpose of enforcing a liability of an industrial concern,
recourse can be taken both under Sections 29 and 31 of the Act. Right of the Corporation
to file a suit or take recourse to the provisions contained in Section 32G of the Act also
exists.
13. The heading of Section 29 of the Act states "Rights of Financial Corporation in case
of default". The default contemplated thereby is of the industrial concern. Such default
would create a liability on the industrial concern. Such a liability would arise when the
industrial concern makes any default in repayment of any loan or advance or any
instalment thereof under the agreement. It may also arise when it fails to meet its
obligation(s) in relation to any guarantee given by the Corporation. If it otherwise fails to
comply with the terms of the agreement with the Financial Corporation, also the same
provisions would apply. In the eventualities contemplated under Section 29 of the Act,
the Corporation shall have the right to take over the management or possession or both of
the industrial concern, The provision does not stop there. It confers an additional right as
the words "as well as" is used which confers a right on the corporation to transfer by way
of lease or sale and realize the property pledged, mortgaged, hypothetical or assigned to
the Corporation.
14. Section 29 of the Act nowhere states that the Corporation can proceed against the
surety even if some properties are mortgaged or hypothecated by it. The right of the
Financial Corporation in terms of Section 29 of the Act must be exercised only on a
defaulting party. There cannot be any default as is envisaged in Section 29 by a surety or
a guarantor. The liabilities of a surety or the guarantor to repay the loan of the principal
debtor arises only when a default is made by the latter.
15. The words "as well as" in our opinion play a significant role. It confers two different
rights but such rights are to be enforced against the same person, viz., the industrial
concern. Submission of the learned senior counsel that the second part of Section 29
having not referred to 'industrial concern', any property pledged, mortgaged,
hypothecated or assigned to the Financial Corporation can be sold, in our opinion cannot
be accepted. It is true that sub-section (1) of Section 29 speaks of guarantee. But such a
guarantee is meant to be furnished by the Corporation in favour of a third party for the
benefit of the industrial concern. It does not speak about a surety or guarantee given in
favour of the Corporation for the benefit of the industrial concern.
16. The legislative object and intent becomes furthermore clear as in terms of sub-section
(4) of Section 29 of the Act only when a property is sold, the manner in which the sale
proceeds is to be appropriated has categorically been provided therein.
It is significant to notice that sub-section (4) of Section 29 of the Act which lays down
appropriation of the sale proceeds only refers to 'industrial concern' and not a 'surety' or
'guarantor'.
17. The provisions of Section 128 of the Indian Contract Act must also be kept in mind. It
is only by reason thereof, subject of course to the contract by the parties thereto, the
liability of a surety is made co-extensive with the liability of the principal debtor.
18. Banking practice may enable a Financial Corporation to ask for a collateral security.
Such security, we would assume, may be furnished by the Directors of a Company but
furnishing of such security or guarantee is not confined to the Directors or employees or
their close relatives. They may be outsiders also. The rights and liabilities of a surety and
the principal borrower are different and distinct.
Apart from the defences available to a principal borrower under the provisions of the
Indian Contract Act, a surety or a guarantor is entitled to take additional defence. Such
additional defence may be taken by the guarantor not only against the Corporation but
also against the principal debtor. He, in a given situation, would be entitled to show that
the contract of guarantee has come to a not. Ordinarily, therefore, when a guarantee is
sought to be enforced, the same must be done through a court having appropriate
jurisdiction. In the absence of any express provision in the statute, a person being in
lawful possession cannot be deprived thereof by reason of default on the part of a
principal borrower.
@page-SC1803
19. Furthermore, construction of a statute would not depend upon a contingency. A statute
must be interpreted having regard to the constitutional provisions as also human rights.
We will deal with this aspect of the matter a little later.
IMPLIED POWER
20. Reference to implied and/or incidental power of the Corporation as was contended by
Mr. Venugopal deserves outright rejection.
21. Our attention has been drawn to the following passage of 'Principles of Statutory
Interpretation' by Justice G.P. Singh, 9th edition, page 365 : 10th edition, page 391 :
".....The rule of implied prohibition is, however, subservient to the basic principle that the
Court must, as far as possible, adopt a construction which effectuates the legislative intent
and purpose..................."
We fail to see how the aforementioned statement of law comes to the aid to the
contention of the learned counsel.
Moreover Section 29 of the Act does not deal with a case where express and implied
conditions have been laid down in the matter of exercise of power conferred upon a
statutory authority under a Statute. Section 29 does not envisage any prohibition at all
either express or implied.
Let us consider the legal implication of the aforementioned statement of law in the light
of a decision of this Court.
In Jamal Uddin Ahmad v. Abu Saleh Najmuddin and another [(2003) 4 SCC 257], this
Court stated the law, thus : 2003 AIR SCW 1399, para 10
"11. Dealing with "statutes conferring power; implied conditions, judicial review", Justice
G.P. Singh states in the Principles of Statutory Interpretation (8th Edn., 2001, at pp. 333,
334) that a power conferred by a statute often contains express conditions for its exercise
and in the absence of or in addition to the express conditions there are also implied
conditions for exercise of the power. An affirmative statute introductive of a new law
directing a thing to be done in a certain way mandates, even if there be no negative
words, that the thing shall not be done in any other way. This rule of implied prohibition
is subservient to the basic principle that the court must, as far as possible, attach a
construction which effectuates the legislative intent and purpose. Further, the rule of
implied prohibition does not negate the principle that an express grant of statutory power
carries with it by necessary implication the authority to use all reasonable means to make
such grant effective. To illustrate, an Act of Parliament conferring jurisdiction over an
offence implies a power in that jurisdiction to make out a warrant and secure production
of the person charged with the offence; power conferred on the Magistrate to grant
maintenance under Section 125 of the Code of Criminal Procedure, 1973 to prevent
vagrancy implies a power to allow interim maintenance; power conferred on a local
authority to issue licences for holding 'hats' or fairs implies incidental power to fix days
therefor; power conferred to compel canegrowers to supply cane to sugar factories
implies an incidental power to ensure payment of price......"
A statutory authority, thus, may have an implied power to effectuate exercise of
substantive power, but the same never means that if a remedy is provided to take action
against one in a particular manner, it may not only be exercised against him but also
against the other in the same manner.
It is a trite law that the entire statute must be first read as a whole then section by section,
clause by clause, phrase by phrase and word by word. [See Reserve Bank of India v.
Peerless General Finance and Investment Co. Ltd. and others, (1987) 1 SCC 424,
Deewan Singh and Ors. v. Rajendra Pd. Ardevi and Ors., 2007 (1) SCALE 32 and
Sarabjit Rick Singh v. Union of India, 2007 (14) SCALE 263]. AIR 1987 SC 1023
2007 AIR SCW 461
2008 AIR SCW 390
SECTION 31 - ISSUE
22. Keeping the aforementioned legal principles in mind, we may notice the other limb of
the argument of Mr. Venugopal that Section 31 of the Act is to be taken recourse to only
when an interlocutory order is required to be sought for and not otherwise.
Section 31 of the Act provides for a special provision. It, apart from the default on the
part of the industrial concern, can be invoked where the Financial Corporation requires an
industrial concern to make immediate repayment of loan or advance in terms of Section
30 if and when such requirement is not met. The aforementioned provision could be
resorted to by the Corporation, without prejudice, to its rights under the provisions of
Section 29 as also
@page-SC1804
Section 69 of the Transfer of Property Act and for the said purpose it is required to apply
to the District Judge having appropriate jurisdiction. Section 31 of the Act provides for
the reliefs which may be sought for by the Corporation strictly in terms thereof. Clause
(aa) of sub-section (1) of Section 31 of the Act provides for a final relief. It does not
speak of any interlocutory order. Clause (aa), as noticed hereinbefore, has been inserted
by Act No. 43 of 1985. Thus, prior thereto even Section 31 could not have been taken
recourse to against a surety.
23. Such a relief, if prayed for, would also lead to grant of a final relief and not an
interlocutory one. Similarly, clause (b) of subsection (1) of Section 31 of the Act also
provides for a final relief. Only clause (c) of sub-section (1) of Section 31 of the Act
empowers the District Judge in the event any application is filed by the Corporation to
pass an ad interim injunction. The very fact that Section 31 uses the terminology "without
prejudice" to the provisions of Section 29 of the Act and/or Section 69 of the Transfer of
Property Act, it clearly postulates an additional relief. What can be done by invoking
Section 29 of the Act can Inter alia be done by invoking Section 31 thereof also but
therefor a different procedure has to be adopted. Section 31 also provides for a relief
against a surety and not confined to the industrial concern alone. Sub-section (2) of
Section 31 also refers to industrial concern and not the surety. The legislative intent,
therefore, to our mind, is clear and unambiguous.
SUBSEQUENT AMENDMENT - EFFECT
24. Sub-section (1A) of Section 32 of the Act lays down a procedure when clause (aa) of
sub-section (1) of Section 31 thereof is invoked. Sub-section (4A) of Section 31 also
empowers the court to forthwith order the enforcement of the liability of the surety if no
cause is shown on or before the date notified by the parties. However, in the event, a
cause is shown upon making an investigation as provided for under sub-section (6) of
Section 32, a final order can be passed in terms of sub-section (7) thereof.
25. Significantly, by Act No. 43 of 1985, Section 32-G of the Act was also inserted. It
does not speak of an industrial concern. Section 32-G, therefore, can be resorted to both
against the industrial concern as also the security. It is so held by this Court in Delhi
Financial Corpn. and another v. Rajiv Anand and others [(2004) 11 SCC 625] in the
following terms :
".....Thus a provision incorporated by the legislature with the intention to enable Financial
Corporations to speedily recover amounts due to them cannot be whittled down by giving
an interpretation which would render it nugatory."
26
. While interpreting the provisions of a statute, the court employs different principles or
canons. To interpret a statute in a reasonable manner, the court must place itself in the
chair of a reasonable legislator/ author. [See New India Assurance Company Ltd. v. Nusli
Neville Wadia and Anr. [JT 2008 (1) SC 31]. Attempt on the part of the court while
interpreting the provisions of a statute should, therefore, be to pose a question as to why
one provision has been amended and the other was not? Why one terminology has been
used while inserting a statutory provision and a different clause in another? It is well-
known that casus omissus cannot be supplied, [See Ashok Lanka v. Rishi Dixit (2005) 5
SCC 598 and J. Srinivasa Rao v. Govt. of A.P. and Anr. 2008 (13) SCALE 27 and
Southern Petrochemical Industries Co. Ltd. v. Electricity Inspector and E.T.I.O. and Ors.
(2007) 5 SCC 447]. 2008 AIR SCW 208
2005 AIR SCW 2676
2006 AIR SCW 6460
2007 AIR SCW 3752
27. The legislative Intent, in our opinion, is manifest. The intention of the Parliament in
enacting Sections 29 and 31 of the Act was not similar. Whereas Section 29 of the Act
consists of the property of the Industrial concern, Section 31 takes within its sweep both
the property of the industrial concern and as that of the surety. None of the provisions
control each other. The Parliament intended to provide an additional remedy for recovery
of the amount in favour of the Corporation by proceeding against a surety only in terms
of Section 31 of the Act and not under Section 29 thereof.
THE EFFECT - OF
28. A Corporation, after coming into force of Section 32G of the Act has four remedies,
viz. :
(i) to file a suit
(ii) to take recourse to Section 29;
(iii) to take recourse to Section 31; and
(iv) to take recourse to Section 32-G of the Act.
@page-SC1805
29
. In A.P. State Financial Corporation v. M/s. GAR Re-Rolling Mills and another [(1994) 2
SCC 647], this Court held : 1994 AIR SCW 1953
"19. The right vested in the Corporation under Section 29 of the Act is besides the right
already possessed at common law to institute a suit or the right available to it under
Section 31 of the Act".............
Section 32-G of the Act provides for an additional remedy.
It is, however, Interesting to note that while upholding the right of the Corporation to opt
for either Section 29 or Section 31 of the Act, it was opined :
"......In our opinion the Corporation can initially take recourse to Section 31 of the Act but
withdraw or abandon it at any stage and take recourse to the provisions of Section 29 of
the Act, which section deals with not only the rights but also provides a self-contained
remedy to the Corporation for recovery of its dues. If the Corporation chooses to take
recourse to the remedy available under Section 31 of the Act and pursues the same to the
logical conclusion and obtains an order or decree, it may thereafter execute the order or
decree, in the manner provided by Section 32(7) and (8) of the Act. The Corporation,
however, may withdraw or abandon the proceedings at that stage and take recourse to the
provisions of Section 29 of the Act.................."
30. Right of property, although no longer a fundamental right, is still a constitutional
right. It is also human right. In absence of any provision either expressly or by necessary
implication, depriving a person therefrom, the court shall not construe a provision leaning
in favour of such deprivation.
Recently, this Court in P.T. Munichikkanna Reddy and Ors. v. Revamma and Ors. [(2007)
6 SCC 59] dealing with adverse possession opined : 2007 AIR SCW 2897
"Human rights have been historically considered in the realm of individual rights such as,
right to health, right to livelihood, right to shelter and employment etc. but now human
rights are gaining a multifaceted dimension. Right to property is also considered very
much a part of the new dimension. Therefore, even claim of adverse possession has to be
read in that context. The activist approach of the English Courts is quite visible from the
judgement of Beaulane Properties Ltd. v. Palmer [2005 (3) WLR 554 : 2005 EWHC 817
(Ch.)] and JA Pye (Oxford) Ltd. v. United Kingdom [2005] ECHR 921 : [2005] 49 ERG
90, [2005] ECHR 921]. The court herein tried to read the Human Rights position in the
context of adverse possession. But what is commendable is that the dimension of human
rights has widened so much that now property dispute issues are also being raised within
the contours of human rights."
31
. A surety may be a Director of the Company. He also may not be. Even if he is a close
relative of the Director or the Managing Director of the Company, the same is not
relevant. A Director of the Company is not an industrial concern. He in his capacity as a
surety would certainly not be. A juristic parson is a separate legal entity. Its veil can be
lifted or pierced only in certain situations. [See Salomon v. Salomon and Co. [1897 AC
22]; Dal Chand and others v. Commissioner of Income Tax, Punjab (1944) 12 ITR 458;
Juggilal Kamlapat vs. Commissioner of Income Tax, U.P. (1969) 1 SCR 988 : 1969 (73)
ITR 702 and Kapila Hingorani v. State of Bihar (2003) 6 SCC 1]. AIR 1969 SC 932
32. Interpretation of a statute would not depend upon a contingency. It has to be
interpreted on its own. It is a trite law that the court would ordinarily take recourse to the
golden rule of literal interpretation. It is not a case where we are dealing with a defect in
the legislative drafting. We cannot presume any. In a case where a court has to weigh
between a right of recovery and protection of a right, it would also lean in favour of the
person who is going to be deprived therefrom. It would not be the other way round. Only
because a speedy remedy is provided for that would itself lead to the conclusion that the
provisions of the Act have to be extended although the statute does not say so. The object
of the Act would be a relevant factor for interpretation only when the language is not
clear and when two meanings are possible and not in a case where the plain language
leads to only one conclusion.
33. Even if the legislation is beneficent, the same by itself would not be held to be
extendable to a situation which the statute does not contemplate. [S. Sundaram Pillai, etc.
v. V. R. Pattabiraman, AIR 1985 SC 582].
In Attorney General v. Milne [1914-15] All ER Rep 1061], Lord Dunedin states : "Now,
prima facie one would expect that
@page-SC1806
the scope of the two sets of provisions would be the same, i.e., in other words that the
question must be answered as to those kinds of property which are swept in by S.2, just
as much as to those which fall under S.1. Inasmuch, however, as this is a taxing statute,
and the duty here is an additional duty, I consider that it must be shown that the words
would clearly cover the individual case to which it is right to apply them."
34
. It is now well-settled that when more than one remedy is provided for an option is given
to a suiter to opt for one or the other remedy. Such a provision is not ultra vires as has
been held by this Court in Maganlal Chhaganlal (P) Ltd. v. Municipal Corporation of
Greater Bombay and others [(1974) 2 SCC 402]; Director of Industries, U.P. and others v.
Deep Chand Agarwal [(1980) 2 SCC 332]; Rajiv Anand (supra). AIR 1974 SC 2009
CONCLUSION
35. For the views we have taken, it is not necessary for us to consider the question as to
whether before a property is put to sale, possession is required to be taken.
36. For the reasons aforementioned, there is no merit in these appeals which are
dismissed accordingly. Counsel's fee assessed at Rs. 50,000/- in each case.
Appeal dismissed.
AIR 2008 SUPREME COURT 1806 "Huchappa v. State of Karnataka"
(From : Karnataka)*
Criminal Appeal No. 577 of 2008 (arising out of S.L.P. (Cri.) No.7463 of 2007), D/- 1 -4
-2008.
Huchappa alias Hucharayappa and Ors. v. State of Karnataka.
Criminal P.C. (2 of 1974), S.386 - APPEAL - GRIEVOUS HURT - Appeal - Manner of
disposal - Conviction u/S.326, I.P.C. challenged - Contentions raised by appellant not
considered - Appeal disposed of in casual manner - Order liable to be set aside - Matter
remitted.
Cri. A. No. 346 of 2001 (SJ), D/-27-07-2006 (Kant), Reversed.
N.D.B. Raju, Ms. Bharathi Raju and N. Ganpathy, for Appellants; Ms. Anitha Shenoy, for
Respondent.
* Cri. A. No. 346 of 2001 (SJ), D/- 27-7-2006 (Kant).
Judgement
1. Dr. ARIJIT PASATAT, J. :-Leave granted.
2. Challenge in this appeal is to the order passed by a learned single Judge of the High
Court upholding the judgment of learned Principal Sessions Judge, Shimoga in SC No.
37 of 1995 convicting the three appellants for offence punishable under Section 326 of
the Indian Penal Code, 1860 (in short the 'IPC') and sentence each one of them to undergo
rigorous imprisonment for five years and to pay a fine of Rs. 2,000/-each with default
stipulation. There were originally 14 accused persons. The trial court found the present
appellants guilty and others were found not to be guilty under Section 235(1) of the Code
of Criminal Procedure, 1973 (in short the 'Cr.P.C.'). Originally all the accused persons
were charged for having committed offence under Sections 143, 144,147, 148, 109, 504,
324, 323 and 506 read with Section 149, IPC. In view of death of Mahadevappa
(hereinafter referred to as 'deceased') on 28.11.1994, Section 302, IPC was added.
3. The prosecution version as unfolded during trial was as follows:
The accused persons 1 to 14 forming themselves into members of unlawful assembly,
with deadly weapons assaulted CW-1 and caused fracture of his left leg. CW-1
consequent to the injuries and septicemia died after five days while under treatment. The
F.I.R. is lodged by the deceased. The contents of the F.I.R. implicated all the accused
persons. P.Ws. 2 and 5 are the eyewitnesses to the incident. They also implicate A1 to A-
14 as assailants who caused grievous injuries on CW-1, ultimately resulting in his death.
4. As noted above, after the death of the deceased, another complaint was filed and the
case was registered as one in relation to the offence punishable under Section 302, IPC.
The trial court as noted above found accused 4 to 14 to be not guilty. An appeal was
preferred by the appellants which, as noted above was dismissed. The High Court
disposed of the appeal observing as follows :
"The trial court has grossly erred in acquitting A4 to A14. Since Section 149 is invoked
and acquitted accused would be equally and vicariously liable for the acts of
@page-SC1807
A1 to A3 as they have shared common object and they had also participated in the
assault. The State has not filed an appeal against illegal acquittal.
The trial court convicted A1 to A3 for committing offence under Section 326 I.P.C. The
injury was caused on the non-vital part, no intention to cause the injury which is likely to
cause death and no knowledge of causing death could be inferred from the overt acts.
Therefore conviction u/S. 326, IPC is sound and proper. Looking into the consequence
and ghastly act, the sentence imposed is also sound and proper and do not call for
interference. The appeal is dismissed."
5. Learned counsel for the appellants submitted that the High Court's judgment is clearly
unsustainable being unreasoned.
6. Learned counsel for the respondent-State supported the judgment.
7. To say the least the High Court's judgment is a bundle of confusion. The High Court
held that the trial court has erred in acquitting A4 to A14, since Section 149 was invoked
and acquitted accused persons should be equally and vicariously liable as they shared
common object of A1 to A3 and also participated in the assault.
8. The High Court noted that the State has not filed an appeal against the "illegal
acquittal". The High Court upheld the conviction holding that injury was caused on the
non-vital part which was likely to cause the injury which is likely to cause death and no
knowledge of causing death could be inferred from the overt acts. Therefore the
conviction was maintained and the appeal was dismissed.
9. Since the High Court has not applied its mind to various contentions raised on behalf
of the appellant and has in a casual manner disposed of the appeal, we have no hesitation
in setting aside the impugned judgment. We remit the matter to the High Court for fresh
disposal in accordance with law. Since the Criminal Appeal is to the year 2001, we
request the High Court to dispose of the appeal as early as practicable preferably by the
end of October, 2008.
10. It is stated that an application for suspension of the sentence of the accused persons
and grant of bail shall be moved in the High Court. If the same is filed, it shall be dealt
with in accordance with law.
Appeal allowed.
AIR 2008 SUPREME COURT 1807 "Keya Mukherjee v. Magma Leasing Ltd."
(From : Calcutta)
Criminal Appeal No. 620 of 2008 (arising out of S.L.P. (Cri.) No. 1477 of 2008), D/- 8 -4
-2008.
Keya Mukherjee v. Magma Leasing Ltd. and Anr.
Criminal P.C. (2 of 1974), S.313 - EXAMINATION OF ACCUSED - PERSONAL
APPEARANCE - SUMMONS CASE - Examination of accused by Court - Dispensing
with his personal attendance - Exemption from personal attendance statutorliy given in
summons cases - Can be extended to other cases if it works hardship on accused -
Procedure to be followed for granting exemption and answering questionnaire laid down.
The object of examination of an accused under S. 313 is for the purpose of enabling the
accused personally to explain any circumstances appearing in the evidence against him.
Thus the provision is mainly intended to benefit the accused and as its corollary to benefit
the Court in reaching the final conclusion. The provision is not intended to nail him to
any position, but to comply with the most salutary principle of natural justice enshrined
in the maxim audi alteram partem. The one category of offences which is specifically
exempted from the rigour of S. 313(1)(b) is 'summons cases.' Remaining present
personally is therefore the general rule. However if remaining present involves undue
hardship to accused the Court can alleviate the difficulties of the accused. Particularly in
view of revolutionary change in technology of communication and transmission and the
marked improvement in facilities for legal aid in the country. The provisions of Ss. 243,
247 and 233 enabling the accused to put in written statements most of which are prepared
by the counsel also supports such view. If such written statements can be treated as
statements directly emanating from the accused, hook, line and sinker, why not the
answers given by him in a specified manner, in special contingencies, be afforded the
same worth. A pragmatic and humanistic approach is therefore warranted in regard to
special exigencies. The word 'shall' in Cl. (b) to S. 313(1) is therefore to be interpreted as
obligatory on the Court and it should be complied with when it is for the benefit of the
accused. But if it works to his great
@page-SC1808
prejudice and disadvantage the Court should, in appropriate cases, relieve him of such
hardship and at the same time adopt a measure to comply with the requirements in S. 313
in a substantial manner. (Paras 19, 20, 21, 22, 23, 24, 25)
Manner of applying for exemption from personal attendance and the manner of
answering the questionnaire supplied by the Court to advocate of accused prescribed.
(Paras 26, 27)
2000 AIR SCW 3692 : AIR 2000 SC 3214 : 2000 Cri LJ 4604 (Rel. on) 29, 31
AIR 1988 SC 2163 : 1989 Cri LJ 296 (Ref.) 4, 30
AIR 1973 SC 2622 : 1973 Cri LJ 1783 (Ref.) 17
AIR 1969 SC 381 : 1969 Cri LJ 654 (Ref.) 8, 13, 30
AIR 1963 SC 612 : 1963 (1) Cri LJ 495 (Ref.) 19
AIR 1953 SC 468 : 1953 Cri LJ 1933 (Ref.) 11
Judgement
2. Challenge in this appeal is to the order passed by a learned Single Judge of the Calcutta
High Court dismissing the application filed by the appellant under Section 401 read with
Section 482 of the Code of Criminal Procedure, 1973 (in short the 'Cr.P.C.'). Challenge in
the said application was to the order dated 26.9.2006 passed by learned Additional
Sessions Judge, 7th Fast Track Court, Calcutta in Criminal Revision No. 36 of 2006 by
which the order dated 2.2.2006 passed by learned Metropolitan Magistrate 11th Court,
Calcutta in Case No. C-510 of 2003 was upheld. Learned Magistrate has rejected the
appellant's prayer for dispensing with her examination under Section 313 Cr.P.C. by
examining of the pleader who was to represent her under Section 205 Cr.P.C. The
proceeding was one under Section 138 of the Negotiable Instruments Act, 1881 (in short
the 'N I Act'). Appellant appeared before learned Magistrate on 2.6.2003 and was released
on bail. On 31.1.2004 she was examined under Section 251 Cr.P.C. Since she was absent
on 3.7.2004, warrant of arrest was issued against her but on 20.7.2004 she surrendered
before learned Magistrate and was released on bail. Recording of evidence was
completed and 5th May, 2005 was fixed for her examination under Section 313 Cr.P.C.
But on that date she was absent and a prayer was made for adjournment. The date was
adjourned to 12.5.2005. On that date appellant filed a petition purported to be under
Section 313 (1)(b) of Cr.P.C. Another petition was filed on 23.8.2005 under Section 205
Cr.P.C. Learned Magistrate allowed the petition filed under Section 205 Cr.P.C. on
2.2.2006 subject to the condition that the appellant shall appear before the Court as and
when called. But the petition under Section 313(1)(b) Cr.P.C. was rejected.
3. Learned Magistrate fixed 6.3.2006 for examination of the accused under Section 313
Cr.P.C. and directed the appellant to be personally present on that date. It is against this
order of learned Magistrate a revision was filed before learned Additional Sessions Judge
who confirmed the order. The order was challenged before the High Court, which as
noted above the same was rejected.
4. Learned counsel for the appellant submitted that in view of this Court's order in
Chandu Lal Chandraker v. Puran Mal and Anr. (AIR 1988 SC 2163) the prayer should
have been accepted. It was pointed out that whether in summons procedure case the
accused should be exempted from personal examination under Section 313 (1)(b), the
Court has exercised judicial discretion. The word 'may' occurring in the proviso clearly
indicates that learned Magistrate may or may not keeping the exigency of the
circumstances allow the prayer of the appellant for exemption from personal examination
under Section 313 Cr.P.C. According to him on the factual position when the appellant
was permitted to be represented in terms of Section 205 Cr.P.C., the courts below had
erroneously rejected the prayer.
5. It is pointed out that question as to at what stage of the trial the personal appearance of
the accused was dispensed with under Section 205 Cr.P.C. is not material because the fact
is that on the prayer of the appellant the petition under Section 205 was allowed before
the exemption of the accused under Section 313 Cr.P.C. Merely because the prayer was
allowed only almost on the conclusion of the trial cannot be a ground to reject a petition
filed under the proviso to Section 313 (1)(b) Cr.P.C.
6. Learned counsel for the respondent No. 1 supported the impugned order of the High
Court.
@page-SC1809
7. A few decisions of this Court need to be noticed in this context.
8. In Bibhuti Bhusan Das Gupta and Anr. v. State of West Bengal (AIR 1969 SC 381),
this Court held that the Pleader cannot represent the accused for the purpose of Section
342 of the Code of Criminal Procedure, 1898 (hereinafter referred to as 'Old Code')
which is presently Section 313 Cr.P.C.
9. Section 313 Cr.P.C. reads as follows : "313. Power to examine the accused.-
(1) In every inquiry or trial, for the purpose of enabling the accused personally to explain
any circumstances appearing in the evidence against him, the court-
(a) may at any stage, without previously warning the accused, put such questions to him
as the court considers necessary;
(b) shall, after the witnesses for the prosecution have been examined and before he is
called on for his defence, question him generally on the case :
Provided that in a summons case, where the court has dispensed with the personal
attendance of the accused, it may also dispense with his examination under clause (b).
(2) No oath shall be administered to the accused when he is examined under sub-section
(1).
(3) The accused shall not render himself liable to punishment by refusing to answer such
questions, or by giving false answers to them.
(4) The answers given by the accused may be taken into consideration in such inquiry or
trial, and put in evidence for or against him in any other inquiry into, or trial for, any
other offence which such answers may tend to show he has committed."
10. The forerunner of the said provision in the old Code was Section 342 therein. It was
worded thus :
"342. (1) For the purpose of enabling the accused to explain any circumstances appearing
in the evidence against him, the court may, at any stage of any inquiry or trial, without
previously warning the accused, put such questions to him as the court considers
necessary, and shall, for the purpose aforesaid, question him generally on the case after
the witnesses for the prosecution have been examined and before he is called on for his
defence.
(2) The accused shall not render himself liable to punishment by refusing to answer such
questions, or by giving false answers to them; but the court and the jury (if any) may
draw such inference from such refusal or answers as it thinks just.
(3) The answers given by the accused may be taken into consideration in such inquiry or
trial, and put in evidence for or against him in any other inquiry into, or trial for, any
other offence which such answers may tend to show he has committed.
(4) No oath shall be administered to the accused when he is examined under sub-section
(1)."
11. Dealing with the position as the section remained in the original form under the Old
Code, a three-Judge Bench of this Court in Hate Singh Bhagat Singh v. State of Madhya
Bharat (AIR 1953 SC 468) that :
"The statements of the accused recorded by the Committing Magistrate and the Sessions
Judge are intended in India to take the place of what in England and in America he would
be free to state in his own way in the witness-box. They have to be received in evidence
and treated as evidence and be duly considered at the trial."
12. Parliament, thereafter, introduced Section 342-A in the Old Code (which corresponds
to Section 315 of the present Code) by which permission is given to an accused to offer
himself to be examined as a witness if he so chose.
13
. In Bibhuti Bhusan Das Gupta's case (supra) another three-Judge Bench dealing with the
combined operation of Sections 342 and 342-A of the Old Code made the following
observations : AIR 1969 SC 381, Para 7
"Under Section 342-A only the accused can give evidence in person and his pleader's
evidence cannot be treated as his. The answers of the accused under Section 342 is
intended to be a substitute for the evidence which he can give as a witness under Section
342-A. The privilege and the duty of answering questions under Section 342 cannot be
delegated to a pleader. No doubt the form of the summons show that the pleader may
answer the charges against the accused, but in so answering the charges, he cannot do
what only the accused can do personally. The pleader may be permitted to represent the
accused while the prosecution evidence is being taken, But at the close of the prosecution
evidence the accused must be questioned and his pleader cannot be
@page-SC1810
examined in his place."
14. The Law Commission in its 41st Report considered the aforesaid decisions and also
various other points of view highlighted by legal men and then made the report after
reaching the conclusion that :
(i) in summons cases where the personal attendance of the accused has been dispensed
with, either under Section 205 or under Section 540-A, the court should have a power to
dispense with his examination; and
(ii) in other cases, even where his personal attendance has been dispensed with, the
accused should be examined personally.
15. The said recommendation has been followed up by Parliament and Section 313 of the
Code, as is presently worded, is the result of it. It would appear prima facie that the court
has discretion to dispense with the physical presence of an accused during such
questioning only in summons cases and in all other cases it is Incumbent on the court to
question the accused personally after closing prosecution evidence. Nonetheless, the Law
Commission was conscious that the rule may have to be relaxed eventually, particularly
when there is improvement in literacy and legal-aid facilities in the country. This thinking
can be discerned from the following suggestion made by the Law Commission in the
same report :
"We have, after considering the various aspects of the matter as summarised above, come
to the conclusion that Section 342 should not be deleted. In our opinion, the stage has not
yet come for it being removed from the statute-book. With further increase in literacy and
with better facilities for legal aid, it may be possible to take that step in the future."
16
. The position has to be considered in the present set-up, particularly after the lapse of
more than a quarter of a century through which period revolutionary changes in the
technology of communication and transmission have taken place, thanks to the advent of
computerisation. There is marked improvement in the facilities for legal aid in the
country during the preceding twenty-five years. Hence a fresh look can be made now. We
are mindful of the fact that a two-Judge Bench in Usha K. Pillai (1993 (3) SCC 208) has
found that the examination of an accused personally can be dispensed with only in
summons case. Their Lordships were considering a case where the offence involved was
Section 363 IPC. The two-Judge Bench held thus: (SCC pp. 212-13, para 4) 1993
"A warrant case is defined as one relating to an offence punishable with death,
imprisonment for life or imprisonment for a term exceeding two years. Since an offence
under Section 363 IPC is punishable with imprisonment for a term exceeding two years it
is a warrant case and not a summons case. Therefore, even in cases where the court has
dispensed with the personal attendance of the accused under Section 205(1) or Section
317 of the Code, the court cannot dispense with the examination of the accused under
clause (b) of Section 313 of the Code because such examination is mandatory,"
17
. Contextually we cannot bypass the decision of a three-Judge Bench of this Court in

Shivaji Sahabrao Bobade v. State of Maharashtra (1973 (2) SCC 793) as the Bench has
widened the sweep of the provision concerning examination of the accused after closing
prosecution evidence. Learned Judges in that case were considering the fallout of
omission to put to the accused a question on a vital circumstance appearing against him
in the prosecution evidence. The three-Judge Bench made the following observations
therein: (SCC p. 806, para 16) AIR 1973 SC 2622, Para 16
"It is trite law, nevertheless fundamental, that the prisoner's attention should be drawn to
every inculpatory material so as to enable him to explain it. This is the basic fairness of a
criminal trial and failures in this area may gravely imperil the validity of the trial itself, if
consequential miscarriage of justice has flowed. However, where such an omission has
occurred it does not ipso facto vitiate the proceedings and prejudice occasioned by such
defect must be established by the accused. In the event of evidentiary material not being
put to the accused, the court must ordinarily eschew such material from consideration. It
is also open to the appellate court to call upon the counsel for the accused to show what
explanation the accused has as regards the circumstances established against him but not
put to him and if the accused is unable to offer the appellate court any plausible or
reasonable explanation of such circumstances, the court may assume that no acceptable
answer exists and that even if the
@page-SC1811
accused had been questioned at the proper time in the trial court he would not have been
able to furnish any good ground to get out of the circumstances on which the trial court
had relied for its conviction."
18. The above approach shows that some dilution of the rigour of the provision can be
made even in the light of a contention raised by the accused that non-questioning him on
a vital circumstance by the trial court has caused prejudice to him. The explanation
offered by the counsel of the accused at the appellate stage was held to be a sufficient
substitute for the answers given by the accused himself.
19. What is the object of examination of an accused under Section 313 of the Code? The
section itself declares the object in explicit language that it is "for the purpose of enabling
the accused personally to explain any circumstances appearing in the evidence against
him". In Jai Dev v. State of Punjab (AIR 1963 SC 612) Gajendragadkar, J. (as he then
was) speaking for a three-Judge Bench has focussed on the ultimate test in determining
whether the provision has been fairly complied with. He observed thus :
"The ultimate test in determining whether or not the accused has been fairly examined
under Section 342 would be to inquire whether, having regard to all the questions put to
him, he did get an opportunity to say what he wanted to say in respect of prosecution case
against him. If it appears that the examination of the accused person was defective and
thereby a prejudice has been caused to him, that would no doubt be a serious infirmity."
20. Thus it is well settled that the provision is mainly intended to benefit the accused and
as its corollary to benefit the court in reaching the final conclusion.
21. At the same time it should be borne in mind that the provision is not intended to nail
him to any position, but to comply with the most salutary principle of natural justice
enshrined in the maxim audi alteram partem. The word "may" in clause (a) of sub-section
(1) in Section 313 of the Code indicates, without any doubt, that even if the court does
not put any question under that clause the accused cannot raise any grievance for it. But if
the court fails to put the needed question under clause (b) of the sub-section it would
result in a handicap to the accused and he can legitimately claim that no evidence,
without affording him the opportunity to explain, can be used against him. It is now well
settled that a circumstance about which the accused was not asked to explain cannot be
used against him.
22. But the situation to be considered now is whether, with the revolutionary change in
technology of communication and transmission and the marked improvement in facilities
for legal aid in the country, is it necessary that in all cases the accused must answer by
personally remaining present in court. We clarify that this is the requirement and would
be the general rule. However, if remaining present involves undue hardship and large
expense, could the court not alleviate the difficulties. If the court holds the view that the
situation in which he made such a plea is genuine, should the court say that he has no
escape but he must undergo all the tribulations and hardships and answer such questions
personally presenting himself in court. If there are other accused in the same case, and the
court has already completed their questioning, should they too wait for long without their
case reaching finality, or without registering further progress of their trial until their co-
accused is able to attend the court personally and answer the court questions? Why
should a criminal court be rendered helpless in such a situation?
23. The one category of offences which is specifically exempted from the rigour of
Section 313(1)(b) of the Code is "summons cases". It must be remembered that every
case in which the offence triable is punishable with imprisonment for a term not
exceeding two years is a "summons case". Thus, all other offences generally belong to a
different category altogether among which are included offences punishable with varying
sentences from imprisonment for three years up to imprisonment for life and even right
up to death penalty. Hence there are several offences in that category which are far less
serious in gravity compared with grave and very grave offences. Even in cases involving
less serious offences, can not the court extend a helping hand to an accused who is placed
in a predicament deserving such a help?
24. Section 243(1) of the Code enables the accused, who is involved in the trial of
warrant case instituted on police report, to put in any written statement. When any such
statement is filed the court is obliged
@page-SC1812
to make it part of the record of the case. Even if such case is not instituted on police
report the accused has the same right (vide Section 247). Even the accused involved in
offences exclusively triable by the Court of Session can also exercise such a right to put
in written statements (Section 233(2) of the Code). It is common knowledge that most of
such written statements, if not all, are prepared by the counsel of the accused. If such
written statements can be treated as statements directly emanating from the accused,
hook, line and sinker, why not the answers given by him in the manner set out hereinafter,
in special contingencies, be afforded the same worth.
25. We think that a pragmatic and humanistic approach is warranted in regard to such
special exigencies. The word "shall" in clause (b) to Section 313(1) of the Code is to be
interpreted as obligatory on the court and it should be complied with when it is for the
benefit of the accused. But if it works to his great prejudice and disadvantage the court
should, in appropriate cases, e.g., if the accused satisfies the court that he is unable to
reach the venue of the court, except by bearing huge expenditure or that he is unable to
travel the long journey due to physical incapacity or some such other hardship, relieve
him of such hardship and at the same time adopt a measure to comply with the
requirements in Section 313 of the Code in a substantial manner. How could this be
achieved?
26. If the accused (who is already exempted from personally appearing in the court)
makes an application to the court praying that he may be allowed to answer the questions
without making his physical presence in court on account of justifying exigency the court
can pass appropriate orders thereon, provided such application is accompanied by an
affidavit sworn to by the accused himself containing the following matters :
(a) A narration of facts to satisfy the court of his real difficulties to be physically present
in court for giving such answers.
(b) An assurance that no prejudice would be caused to him, in any manner, by dispensing
with his personal presence during such questioning.
(c) An undertaking that he would not raise any grievance on that score at any stage of the
case.
27. If the court is satisfied of the genuineness of the statements made by the accused in
the said application and affidavit it is open to the court to supply the questionnaire to his
advocate (containing the questions which the court might put to him under Section 313 of
the Code) and fix the time within which the same has to be returned duly answered by the
accused together with a properly authenticated affidavit that those answers were given by
the accused himself. He should affix his signature on all the sheets of the answered
questionnaire. However, if he does not wish to give any answer to any of the questions he
is free to indicate that fact at the appropriate place in the questionnaire (as a matter of
precaution the court may keep photocopy or carbon copy of the questionnaire before it is
supplied to the accused for an answer). If the accused fails to return the questionnaire
duly answered as aforesaid within the time or extended time granted by the court, he shall
forfeit his right to seek personal exemption from court during such questioning. The
Court has also to ensure that the imaginative response of the counsel is intended to be
availed to be a substitute for taking statement of accused.
28. In our opinion, if the above course is adopted in exceptional exigency it would not
violate the legislative intent envisaged in Section 313 of the Code.
29
. The above position was indicated in Basav Raj R Patil v. State of Karnataka (2000 (8)
SCC 740). 2000 AIR SCW 3692
30
. It is true that in Chandu Lal Chandraker's case (supra) two Hon'ble Judges have taken a
view supporting that of the appellant. It appears that in said case no reference was Gupta's
case (supra). AIR 1988 SC 2163
AIR 1969 SC 381
31
. Judged in the background of principles set out in Basav Raj R. Paul's case (supra) the
inevitable conclusion is that the High Court's impugned order does not suffer from any
infirmity to warrant interference. 2000 AIR SCW 3692
32. Appeal is dismissed.

Appeal dismissed.
@page-SC1813
AIR 2008 SUPREME COURT 1813 "Md. Kalam v. State of Rajasthan"
(From : Rajasthan)*
Criminal Appeal No. 489 of 2008 (arising out of S.L.P. (Cri.) No. 4178 of 2006), D/- 14
-3 -2008.
Md. Kalam alias Abdul Kalam v. State of Rajasthan.
(A) Evidence Act (1 of 1872), S.9 - Criminal P.C. (2 of 1974), S.162 -
IDENTIFICATION PARADE - INVESTIGATION - Test identification parade - Purpose
- Help investigating agency with assurance that its progress is on right line - T.I. parade
also helps in testing veracity of witness - Identification at T.I. parade is not substantive
evidence - But it strengthens trustworthiness of evidence of identification given in Court.
(Paras 7, 8)
(B) Evidence Act (1 of 1872), S.9 - IDENTIFICATION PARADE - Test identification
parade - Holding of - Not an obligation on investigating agency - Accused does not have
a right to claim holding of T.I. parade. (Para 8)
(C) Evidence Act (1 of 1872), S.9 - IDENTIFICATION PARADE - Test identification
parade - Delay in holding - Not always fatal - But parades as far as possible to be held
soon as after arrest of accused to eliminate possibility of accused being shown to
witnesses. (Para 7)
1999 AIR SCW 4008 : AIR 1999 SC 3916 : 2000 Cri LJ 44 16
1999 AIR SCW 4770 : 1999 Cri LJ 5013 (Ref.) 16
AIR 1980 SC 1382 : 1980 Cri LJ 965 16
AIR 1978 SC 1770 (Ref.) 15
AIR 1975 SC 1814 : 1975 Cri LJ 1553 (Ref.) 11
AIR 1972 SC 102 : 1972 Cri LJ 15 (Ref.) 8
AIR 1971 SC 363 : 1971 Cri LJ 305 9, 11
AIR 1970 SC 1321 : 1970 Cri LJ 1149 (Ref.) 8
AIR 1960 SC 1340 : 1960 Cri LJ 1681 (Ref.) 8
AIR 1958 SC 350 : 1958 Cri LJ 698 (Ref.) 8
(1957) Cri. Appeal No. 92 of 1956, D/- 15-1-1957 (SC) 9
Darshan Singh Chawla, (AC), for Appellant; Jatinder Kumar Bhatia, for Respondent.
* S.B. Cri. Appeal No. 326 of 2003, D/- 14-9-2004 (Raj) (Jaipur Bench).
Judgement
Dr. ARIJIT PASATAT, J. :- Leave granted.
2. Challenge in this appeal is to the order passed by a learned Single Judge of the
Rajasthan High Court, Jaipur Bench. Challenge in the appeal before the High Court was
to the judgment and order dated 10-4-2002 passed by learned Additional Sessions Judge
(Fast Track) Class II, Jaipur. By the said judgment, the appellant was convicted for
offence punishable under Section 395 of the Indian Penal Code, 1860 (in short 'IPC'). He
was sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.
1,000/- with default stipulation.
In the intervening night of 8-9th May, 1994 when Vishwas (PW-3) and his wife Renu Jain
(PW-1) were sleeping in their house situated in Mauji Colony, Malviya Nagar, Jaipur,
five persons entered the house and tied their servant Chaturbhuj who was sleeping in the
basement of the house. Thereafter, the accused also tied the mouth, hands and legs of
Vishwas Jain (PW-3) and his wife Renu (PW-1) and then bolted them inside the bathroom
and having threatened them at the point of pistol and knife, the accused looted the gold
and silver ornaments, coins and cash. The miscreants stayed in their house for about an
hour. Complainant Vishwas managed to come out of the bathroom through a window and
then telephonically informed the police personnel of Police Station, Malviya Nagar,
Jaipur. On receiving the information, the police party reached the house of complainant,
where complainant submitted a written report, whereupon a case for offence under
@page-SC1814
Section 395 IPC was registered.
At the very outset it may be stated that case was registered against five accused. The
investigating agency arrested three accused, namely, Mohd. Babul, Mohd. Jalal and
Mohd. Ansari and after completion of investigation submitted charge sheet against them
for offence under Section 395 IPC. At the conclusion of trial, the leaned trial Judge vide
its judgment dated 31-3-1997 held the accused appellant guilty and accordingly convicted
and sentenced them. These three accused challenged their conviction by filing appeals
before the High Court. Vide judgment dated 13-4-1998 the High Court dismissed the
appeals of Mohd. Jalal and Mohd. Babul and maintained their conviction under Section
395 IPC and partly allowed the appeal of accused Ansari by altering his conviction from
Section 395 IPC to Section 411 IPC. Investigation as against the appellant and co-
accused Saidulla was kept pending under Section 173(8) of the Code of Criminal
Procedure, 1973 (in short the 'Code'). Appellant Mohd. Kalam was arrested on 27-3-
1998. Co-accused Saidulla was also arrested but he absconded during trial and is still
absconding.
After arrest, Test Identification Parade was conducted and after completion of
investigation, police submitted charge sheet against the appellant.
The basic challenge before the High Court was to the possibility of identification. With
reference to the statement of Renu Jain (PW-1) and Vishwas Jain (PW-3) it was
contended that there was possibility of the appellant having been shown to the
complainant and his wife. It was stated that the Test Identification Parade (in short 'TI
Parade') was done after a period of over 7 days. High Court did not accept the plea. It
held that the trial Court had analysed this aspect. The High Court also considered the
evidence of PWs 1 and 3 and came to hold that it was crystal clear that PW-3 had ample
opportunity to identify the appellant. It was also noted that the said witness was believed
in respect of the identification of three other accused persons who had earlier faced trial
and had been convicted for offence punishable under Section 395 IPC and on appeal their
conviction had been upheld by the High Court. The appeal was accordingly dismissed.
4. Learned counsel for the appellant sub-mitted that only on the basis of identification by
PW-3 the conviction should not have been recorded. It was pointed out that PW-3 had
accepted that his wife, PW-1 had not gone for the identification.
5. Learned counsel for the respondent-State supported the judgment of the trial Court.
6. The TI Parade was done on 3-4-1998, the accused was arrested on 27-3-1998 and on
28-3-1998 the accused was produced by the SHO at the residence of Additional Chief
Judicial Magistrate No.6 and prayer was made for police custody remand. On the
application for remand, the Magistrate allowed the police custody till 31-3-1998. On 31-
3-1998 the SHO again produced the appellant before the Magistrate and on both
occasions the Magistrate recorded that the accused was produced 'Baparda'. The TI
Parade was held on 3-4-1998 and the appellant and other accused were correctly
identified by PW-3. The evidence of Shri Ratish Kumar Garg (PW-12) the Judicial
Magistrate, First Class, Jaipur shows that on 3-4-1998 he was working as Judicial
Magistrate and on the direction of the Chief Judicial Magistrate, Jaipur the accused-
appellant along with others were brought for the TI Parade. Vishwas Jain (PW-3)
correctly identified the appellant. It is also specifically stated in his evidence that it was
not correct to say that the accused "might have told to him that accused was shown to the
witness earlier."
7
. As was observed by this Court in Matru v. State of U.P. (1971 (2) SCC 75) identification
tests do not constitute substantive evidence. They are primarily meant for the purpose of
helping the investigating agency with an assurance that their progress with the
investigation into the offence is proceeding on the right lines. The identification can only
be used as corroborative of the statement in court. (See Santokh Singh v. Izhar Hussain
(1973 (2) SCC 406). The necessity for holding an identification parade can arise only
when the accused are not previously known to the witnesses. The whole idea of a test
identification parade is that witnesses who claim to have seen the culprits at the time of
occurrence are to identify them from the midst of other persons without any aid or any
other source. The test is done to check upon their veracity. In other words, the main
object of holding an identification parade, during the AIR 1971 SC 1050
AIR 1973 SC 2190
@page-SC1815
investigation stage, is to test the memory of the witnesses based upon first impression and
also to enable the prosecution to decide whether all or any of them could be cited as
eyewitnesses of the crime. The identification proceedings are in the nature of tests and
significantly, therefore, there is no provision for it in the Code and the Evidence Act. It is
desirable that a test identification parade should be conducted as soon as after the arrest
of the accused. This becomes necessary to eliminate the possibility of the accused being
shown to the witnesses prior to the test identification parade. This is a very common plea
of the accused and, therefore, the prosecution has to be cautious to ensure that there is no
scope for making such allegation. If, however, circumstances are beyond control and
there is some delay, it cannot be said to be fatal to the prosecution.
8. It is trite to say that the substantive evidence is the evidence of identification in Court.
Apart from the clear provisions of Section 9 of the Indian Evidence Act, 1872 (in short
the 'Evidence Act') the position in law is well settled by a catena of decisions of this
Court. The facts, which establish the identity of the accused persons, are relevant under
Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is
the statement made in Court. The evidence of mere identification of the accused person at
the trial for the first time is from its very nature inherently of a weak character. The
purpose of a prior test identification, therefore, is to test and strengthen the
trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to
generally look for corroboration of the sworn testimony of witnesses in Court as to the
identity of the accused who are strangers to them, in the form of earlier identification
proceedings. This rule of prudence, however, is subject to exceptions, when, for example,
the Court is impressed by a particular witness on whose testimony it can safely rely,
without such or other corroboration. The identification parades belong to the stage of
investigation, and there is no provision in the Code which obliges the investigating
agency to hold or confers a right upon the accused to claim, a test identification parade.
They do not constitute substantive evidence and these parades are essentially governed by
Section 162 of the Code. Failure to hold a test identification parade would not make
inadmissible the evidence of identification in Court. The weight to be attached to such
identification should be a matter for the Courts of fact. In appropriate cases it may accept
the evidence of identification even without insisting on corroboration. (See Kanta
Prashad v. Delhi Administration (AIR 1958 SC 350), Vaikuntam Chandrappa and others
v. State of Andhra Pradesh (AIR 1960 SC 1340), Budhsen and another v. State of U.P.
(AIR 1970 SC 1321) and Rameshwar Singh v. State of Jammu and Kashmir (AIR 1972
SC 102).
9
. In Jadunath Singh and another v. The State of Uttar Pradesh (1970) 3 SCC 518), the
submission that absence of test identification parade in all cases is fatal, was repelled by
this Court after exhaustive considerations of the authorities on the subject. That was a
case where the witnesses had seen the accused over a period of time. The High Court had
found that the witnesses were independent witnesses having no affinity with deceased
and entertained no animosity towards the appellant. They had claimed to have known the
appellants for the last 6-7 years as they had been frequently visiting the town of Bewar.
This Court noticed the observations in an earlier unreported decision of this Court in
Parkash Chand Sogani v. The State of Rajasthan (Criminal Appeal No. 92 of 1956
decided on January 15, 1957), wherein it was observed :- AIR 1971 SC 363
Para 14 of AIR
"It is also the defence case that Shiv Lal did not know the appellant. But on a reading of
the evidence of P.W. 7 it seems to us clear that Shiv Lal knew the appellant by sight.
Though he made a mistake about his name by referring to him as Kailash Chandra, it was
within the knowledge of Shiv Lal that the appellant was a brother of Manak Chand and
he identified him as such. These circumstances are quite enough to show that the absence
of the identification parade would not vitiate the evidence. A person who is well-known
by sight as the brother of Manak Chand, even before the commission of the occurrence,
need not be put before an identification parade in order to be marked out. We do not think
that there is any justification for the contention that the absence of the identification
parade or a mistake made as to his name, would be necessarily fatal to the prosecution
case in the circumstances."
@page-SC1816
The Court concluded :
"It seems to us that it has been clearly laid down by this Court, in Parkash Chand Soganl
v. The State of Rajasthan (supra) (AIR, Cri LJ), that the absence of test identification in
all cases is not fatal and if the accused person is well-known by sight it would be waste of
time to put him up for identification. Of course if the prosecution fails to hold an
identification on the plea that the witnesses already knew the accused well and it
transpires in the course of the trial that the witnesses did not know the accused
previously, the prosecution would run the risk of losing its case." AIR 1963 SC 363,
Para 18
11
. In Harbhajan Singh v. State of Jammu and Kashmir (1975) 4 SCC 480), though a test
identification parade was not held, this Court upheld the conviction on the basis of the
identification in Court corroborated by other circumstantial evidence. In that case it was
found that the appellant and one Gurmukh Singh were absent at the time of roll call and
when they were arrested on the night of 16th December, 1971 their rifles smelt of fresh
gunpowder and that the empty cartridge case which was found at the scene of offence
bore distinctive markings showing that the bullet which killed the deceased was fired
from the rifle of the appellant. Noticing these circumstances this Court held :- AIR
1975 SC 1814, Para 4
"In view of this corroborative evidence we find no substance in the argument urged on
behalf of the appellant that the Investigating Officer ought to have held an identification
parade and that the failure of Munshi Ram to mention the names of the two accused to
the neighbours who came to the scene Immediately after the occurrence shows that his
story cannot be true. As observed by this Court in Jadunath Singh v. State of U.P. (AIR
1971 SC 363) absence of test identification is not necessarily fatal. The fact that Munshi
Ram did not disclose the names of the two accused to the villages only shows that the
accused were not previously known to him and the story that the accused referred to each
other by their respective names during the course of the incident contains an element of
exaggeration. The case does not rest on the evidence of Munshi Ram alone and the
corroborative circumstances to which we have referred to above lend enough assurance to
the implication of the appellant."
12. It is no doubt true that much evidentiary value cannot be attached to the identification
of the accused in Court where identifying witness is a total stranger who had just a
fleeting glimpse of the person identified or who had no particular reason to remember the
person concerned, if the identification is made for the first time in Court.
13
. In Ram Nath Mahto v. State of Bihar (1996) 8 SCC 630) this Court upheld the
conviction of the appellant even when the witness while deposing in Court did not
identify the accused out of fear, though he had identified him in the test identification
parade. This Court noticed the observations of the trial Judge who had recorded his
remarks about the demeanor that the witness perhaps was afraid of the accused as he was
trembling at the stare of Ram Nath-accused. This Court also relied upon the evidence of
the Magistrate, PW-7 who had conducted the test identification parade in which the
witness had identified the appellant. This Court found, that in the circumstances if the
Courts below had convicted the appellant, there was no reason to interfere. 1996 AIR
SCW 3119
14
. In Suresh Chandra Bahri v. State of Bihar (1995 Supp (1) SCC 80), this Court held that
it is well settled that substantive evidence of the witness is his evidence in the Court but
when the accused person is not previously known to the witness concerned then
identification of the accused by the witness soon after his arrest is of great importance
because it furnishes an assurance that the investigation is proceeding on right lines in
addition to furnishing corroboration of the evidence to be given by the witness later in
Court at the trial. From this point of view it is a matter of great importance, both for the
investigating agency and for the accused and a fortiori for the proper administration of
justice that such identification is held without avoidable and unreasonable delay after the
arrest of the accused. It is in adopting this course alone that justice and fair play can be
assured both to the accused as well as to the prosecution. Thereafter this Court
observed :- 1994 AIR SCW 3420
Para 78 of AIR SCW
"But the position may be different when the accused or a culprit who stands trial had been
seen not once but for quite a number of times at different point of time and places which
fact may do away with the necessity
@page-SC1817
of a TI parade."
15
. In State of Uttar Pradesh v. Boota Singh arid others (1979 (1) SCC 31), this Court
observed that the evidence of Identification becomes stronger if the witness has an
opportunity of seeing the accused not for a few minutes but for some length of time, in
broad daylight, when he would be able to note the features of the accused more carefully
than on seeing the accused in a dark night for a few minutes. AIR 1978 SC 1770
16
. In Ramanbhai Naranbhai Patel and others v. State of Gujarat (2000 (1) SCC 358) after
considering the earlier decisions this Court observed :- 1999 AIR SCW 4770, Para
20
"It becomes at once clear that the aforesaid observations were made in the light of the
peculiar facts and circumstances wherein the police is said to have given the names of the
accused to the witnesses. Under these circumstances, identification of such a named
accused only in the Court when the accused was not known earlier to the witness had to
be treated as valueless. The said decision, in turn, relied upon an earlier decision of this
Court in the case of State (Delhi Admn.) v. V. C. Shukla (AIR 1980 SC 1382) wherein
also Fazal Ali, J. speaking for a three-Judge Bench made similar observations in this
regard. In that case the evidence of the witness in the Court and his identifying the
accused only in the Court without previous identification parade was found to be a
valueless exercise. The observations made therein were confined to the nature of the
evidence deposed to by the said eye-witnesses. It, therefore, cannot be held, as tried to be
submitted by learned Counsel for the appellants, that in the absence of a test
identification parade, the evidence of an eye-witness Identifying the accused would
become Inadmissible or totally useless; whether the evidence deserves any credence or
not would always depend on the facts and circumstances of each case. It is, of course,
true as submitted by learned Counsel for the appellants that the later decisions of this
Court in the case of Rajesh Govind Jagesha v. State of Maharashtra (AIR 2000 SC 160)
and State of H.P. v. Lekh Raj (AIR 1999 SC 3916), had not considered the aforesaid
three-Judge Bench decisions of this Court. However, in our view, the ratio of the
aforesaid later decisions of this Court cannot be said to be running counter to what is
decided by the earlier three-Judge Bench Judgments on the facts and circumstances
examined by the Court while rendering these decisions. But even assuming as submitted
by learned Counsel for the appellants that the evidence of, these two injured witnesses i.e.
Bhogllal Ranchhodbhai and Karsanbhal Vallabhbhai identifying the accused in the Court
may be treated to be of no assistance to the prosecution, the fact remains that these eye-
witnesses were seriously injured and they could have easily seen the faces of the persons
assaulting them and their appearance and identity would well within imprinted in their
minds especially when they were assaulted in broad daylight. They could not be said to
be interested in roping in innocent persons by shielding the real accused who had
assaulted them." 1999 AIR SCW 4246
1999 AIR SCW 4008
17
. These aspects were also highlighted in Malkhansingh and Others v. State of M.P. (2003
(5) SCC 746) and Munshi Singh Gautam (dead) and Ors. v. State of M.P. (2005 (9) SCC
631). 2003 AIR SCW 3336
2004 AIR SCW 6537
18. In view of the evidence which the trial Court and the High Court have analysed and
the identification by PW-3 in the TI Parade, there is no infirmity in the conclusions of
guilt of the accused. The appellant's conviction is accordingly maintained. The sentence
also does not warrant interference.
19. The appeal is without merit and is dismissed.
Appeal dismissed.
AIR 2008 SUPREME COURT 1817 "Pramod Kumar v. U. P. Secondary Education
Services Commission"
(From : 2005 All LJ 158)
Coram : 2 S. B. SINHA AND H. S. BEDI, JJ.
Pramod Kumar v. U.P. Secondary Education Services Commission and Ors.
U.P. Intermediate Education Act (2 of 1921), S.16E, S.16C(3) - EDUCATION -
APPOINTMENT - TERMINATION OF SERVICE - SERVICE MATTERS -
Appointment of teacher - Appointee not possessing requisite/basic qualification at time of
appointment - Termination of his services - Not Illegal.
1997 (4) RSJ 134 (P and H), Overruled.
If the essential educational qualification for recruitment to a post is not satisfied.
@page-SC1818
ordinarily the same cannot be condoned. Such an act cannot be ratified. An appointment
which is contrary to the statute/statutory rules would be void in law. An illegality cannot
be regularized, particularly, when the statute in no unmistakable term says so. A
departmental proceedings against the appellant teacher might have been initiated after the
change of management. However he must establish existence of a legal right in himself
and a corresponding legal duty in the State. If he did not possess the requisite
qualification to hold a post, he could not have any legal right to continue. It was,
therefore, immaterial as to why and when the said proceeding had been initiated against
him. Since the appellant lacked basic educational qualification, the termination of his
services would not be illegal. 1997 (4) RSJ 134 (P and H), Overruled. (Paras 19, 23,
24, 32)
2007 AIR SCW 7569 (Ref.) 19
(2007) 4 SCC 54 (Ref.) 29
2006 AIR SCW 399 : AIR 2006 SC 3492 : 2006 Lab IC 947 : 2006 (2) ALJ 234 (Ref.)
28
2006 AIR SCW 1991 : AIR 2006 SC 1806 (Ref.) 19
2006 AIR SCW 2972 : AIR 2006 SC 2319 (Ref.) 19
1997 (4) RSJ 134 (P and H) (Overruled) 22
1996 AIR SCW 2660 : AIR 1996 SC 3328 (Ref.) 26
1996 AIR SCW 3288 : AIR 1996 SC 2638 : 1996 Lab IC 2268 : 1996 All LJ 1519 (Ref.)
30-31
1994 AIR SCW 4438 : AIR 1995 SC 277 (Ref.) 11, 27
1994 All LJ 1077 : 1995 Lab IC 112 30-31
(1993) 3 SCC 591 (Ref.) 25
AIR 1990 SC 1381 : 1990 Lab IC 1227 : 1990 All LJ 355 (Ref.) 24
P.S. Patwalia, Sr. Advocate, D.K. Garg, Bheem Pratap Singh, Aman Preet Singh Rahi,
Abhishek Garg, R.C. Kaushik, for Appellant; S.R. Singh, Sr. Advocate, T.N. Singh, S.K.
Mishra, Prashant Choudhary, Sandeep Jitendra Mohan Sharma, Ms. Niranjana Singh, for
Respondents.
Judgement
S. B. SINHA, J. :- Appellant was appointed as an Assistant Teacher in C. T. Grade in an
Intermediate College. Admittedly, essential qualifications and other conditions for
recruitment therefor are prescribed by Uttar Pradesh Secondary Education Services
Selection Boards Act, 1982 (the Act) and the Rules framed thereunder. Section 16 of the
Act provide for the essential qualifications. In terms of the Act, rules were framed by the
State of Uttar Pradesh in 1993 known as the Uttar Pradeh Secondary Education Services
Commission Rules (the Rules).
Section 16 of the Act reads, thus :
"16. Appointments to be made only on the recommendations of the Board - (1)
Notwithstanding anything to the contrary contained in the Intermediate Education Act,
1921 or the regulations made thereunder but subject to the provisions of Sections 12, 18,
21-B, 21-C, 21-D, 33, 33-A, 33-B, 33-C, 33-D, 33-E and 33-F, every appointment of a
teacher, shall on or after the date of the commencement of the Uttar Pradesh Secondary
Education Services Selection Board (Amendment) Act, 2001 be made by the
management only on the recommendation of the Board";
Provided that in respect of retrenched employees, the provisions of Section 16-EE of the
Intermediate Education Act, 1921, shall mutatis mutandis apply :
Provided further that the appointment of a teacher by transfer from one Institution to
another, may be made in accordance with the regulations made under Clause (c) of sub-
section (2) of Section 16-G of the Intermediate Education Act, 1921 :
(2) Any appointment made in contravention of the provisions of sub-section (1) shall be
void."
2. The minimum qualification for Masters and Teachers were laid down in the Rules as
prescribed under Sections 16E, 16F and Section 16FF of the Act.
Rule 3 of the Rules reads as under :-
"3. Qualifications and experience, etc. for appointment as teacher.- (1) The minimum
academic qualification for appointment as teacher shall be as given in Regulation 1 under
Chapter II of the Regulations, framed under the Intermediate Education Act, 1921.
(2) No male person shall be eligible for appointment to the post of the head of an
institution or teacher in a girls institution.
Provided that nothing contained in this sub-rule shall apply in relation to
(i) a teacher already working in a permanent capacity in a girls institution for promotion
or appointment to any higher post of a teacher not being the post of the head
@page-SC1819
of an institution in the same institution.
(ii) Appointment as a teacher for the subject of music in an institution to a person who is
blind.
Provided further that when a suitable lady candidate is not available for appointment in a
girls institution for the post of a teacher, not being the post of head of institution, or for
any other sufficient reason, the commission is satisfied that it is in the interest of the
students so to do, it may recommend a male candidate for such post :
Provided also that, before recommending a male candidate in accordance with the
preceding proviso, the Commission may obtain and consider the views of the Director
and Management."
4. It is neither in doubt nor in dispute that prior to coming into force of the said Act, the
matters relating to recruitment of Assistant Teachers used to be governed by the U. P.
Intermediate Education Act, 1921 (1921 Act). A bare perusal of the aforementioned
provisions read with those of 1921 Act would clearly show that the possession of a
graduate degree from a University recognized under the University Grants Commission
Act (UGC Act) or any other State Act was at all material and still is imperative.
5. Appellant admittedly did his B.Ed. Degree from Mithili Vishwa Vidyapeeth, Sankat
Mochan Dham Darbhanga, Bihar. The name of the said institution allegedly figured in a
'Directory of Institutions for Higher Education', published by Ministry of Education and
Culture, Government of India in the year 1982. It, however, stands admitted that it was
not an institution recognized under the UGC Act.
6. He was appointed on 29-11-1988 by the Principal/Manager, Shri Jawahar Inter College
Bamnauli (Meerut) stating;
"You are hereby informed with pleasure that the teacher's selection committee of the
college has appointed you in short term vacancy as ad-hoc assistant teacher in C.T. Grade
on the basis of interview held on 20-11-1988 up to the reversion of Sh. Shiv Kumar
Sharma at his post or vacancy filled up and joined with a person selected by commission
at the above post.
Please join the duty at above post within 10 days, otherwise this appointment letter of
yours will be deemed as cancelled."
7. It became known to the University that he had not been possessing a degree granted by
a university recognized by the Commission.
He was asked to obtain a B.Ed. degree from a recognized University within a period of
two years. An opportunity was granted to him to obtain such a degree by a letter dated
18-2-1993 stating;
"You, Shri Pramod Kumar, Asst. Teacher CT Grade, know that you have acquired B.Ed.
degree from Maithili Vishwavidyapeeth Darbhanga. We came to know from reliable
sources that the said University from where you have acquired B.Ed. degree has not been
recognized by University Grants Commission.
Earlier also by the Manager of Institution Shri Naresh Singh Rathi has also directed you
to acquire B.Ed. degree from a recognized University within a period of two years. Now
I, as a last opportunity, direct you to acquire B.Ed. degree from a recognized University.
You are requested to acquire B.Ed. degree in future otherwise Managing Committee shall
be constrained to take appropriate action."
8. He prayed for appearing in the said examination in B.Ed. Correspondence Examination
from Maharshi Dayanand University, Rohtak (Haryana). Allegedly, such permission was
granted and he obtained a requisite degree. Before us, however, only a marksheet issued
by the Controller of Examination of Maharshi Dayanand University, Rohtak has been
placed. Whether the correspondence Course for B.Ed. Degree granted by the said
University is valid and recognized by the State of U. P. or not is not known.
9. Inter alia on the premise that he had not been paid his salary, he filed a writ petition
before the High Court of Judicature at Allahabad which was marked as Civil
Miscellaneous Writ Petition No. 1338 of 1989. Upon noticing that he had been getting his
salary from 1-1-1991, by a judgment and order dated 5-7-1996, the High Court directed
the respondents to pay the arrears of salary from 1-12-1988 to 31-12-1990.
10. Allegedly, as the said order was not complied with, a Contempt Petition was filed
wherein a show cause notice was issued by the High Court.
It is, however, not in dispute that a notice to show cause was served upon him on
@page-SC1820
or about 11-1-1987, on the premise charge that he had obtained his appointment on the
basis of a fabricated and illegal B.Ed. degree. Cause was shown by him on 16-1-1997.
11. A departmental proceeding was thereafter initiated against appellant. On completion
thereof, his services were terminated by an order dated 12-2-1997. He filed a Writ
Petition questioning the correctness of the said order. By reason of a judgment and order
dated 9-3-1997, a learned single Judge of the High Court dismissed the said writ petition
stating :
"After considering respective contentions of the parties and in view of the admitted facts,
I find that the petitioner was appointed originally when admittedly he was not having
proper qualification. The petitioner has failed to show under what circumstances he could
be validly appointed on the basis of such qualification of bachelor of education degree
awarded by a university which was non recognised. That being so the appointment itself
is bad. No question of estoppel also arises in such case. The law in this connection has
been decided in the case of Ravinder Sharma and another v. state of Punjab and others
reported on 1995 1 SCC 138. 1994 AIR SCW 4438
In present case the petitioner's appointment was not having an approval and he was only
paid salary under the court's order. Moreover, admittedly the petitioner's appointment was
without there being a proper qualification and as such the appointment of the petitioner
was in violation of Section 16-E of the U.P. Intermediate Education Act, 1921. In the
circumstances, the petitioner is not entitled to protection under Section 16-C (3) of the
said Act."
12. The High Court, furthermore, in its judgment took into consideration the contention
of the appellant that his services should have been regularised in terms of Section 33-A
and Section 33-B of the Uttar Pradesh Secondary Education Services Selection Board
Act, 1982, as he had been possessing the prescribed qualification at the material point of
time.
13. A special Appeal preferred by the appellant against the said judgment and order has
been dismissed by the Division Bench holding;
"Considering the totality of the facts and circumstances as discussed above, we are of the
view that the initial appointment of the petitioner, being wholly illegal and void by virtue
of its being de hors the rules his appointment to the said post of assistant teacher in the
Institution could not be permitted to continue any more, even if he had managed
subsequently to obtain another of B.Ed. We are in full agreement with the Ld. single
Judge who has not found any good ground for interference under the extra ordinary
jurisdiction envisaged under Article 226 of the Constitution of India. The decision given
in the writ petition, thus, does not require to be disturbed in the present intra court appeal,
which lacks merits and is hereby dismissed with no order as to cost."
14. Mr. P. S. Patwalia, the learned senior counsel appearing on behalf of the appellant in
support of this appeal inter alia submitted :
(i) Keeping in view the fact that the appellant did not conceal any material fact and the
management was aware that the degree possessed by him was not granted by a
recognized university, it is not a case where he can be said to have committed a fraud
upon the institution.
(ii) In any event, as the management had permitted him to obtain a fresh degree which
having been obtained, his services should have been directed to be continued.
(iii) The action of the management was mala fide as the departmental proceeding was
initiated only after the change in management and in view of institution of a contempt
petition against the management of the institution.
(iv) Appellant having served the institution for more than nine years from 1988, the High
Court should have allowed the writ application.
15. Mr. S. R. Singh, the learned senior counsel appearing on behalf of the respondents, on
the other hand, submitted :
(a) Appellant having not possessed any valid degree from a University recognised by the
University Grants Commission, his appointmenl was Illegal.
(b) Rule 3 of 1993 Rules providing for a degree from a recognised university as a sine
quo non for appointment to a post. A subsequent acquisition, therefore, would not come
to his rescue.
(c) Appellant having not fulfilled the conditions precedent for regularization of his
@page-SC1821
services in terms of the provisions of the Uttar Pradesh Secondary Education Selection
Board Act, 1982. the High Court has rightly rejected the said prayer.
16-17. The qualifications for holding a post have been laid down under a statute, any
appointment in violation thereof would be a nullity.
18. It is a matter of some concern that appointments are being offered by the authorities
of the State without verifying the fact as to whether the degree(s) possessed by the
candidate(s) are valid or not. It was an ad hoc appointment. Why despite the same, he was
allowed to obtain degree from another university is not known.
19
. If the essential educational qualification for recruitment to a post is not satisfied,

ordinarily the same cannot be condoned. Such an act cannot be ratified. An appointment
which is contrary to the statute/statutory rules would be void in law. An illegality cannot
be regularized, particularly, when the statute in no unmistakable term says so. Only an
irregularity can be 2006 AIR SCW 1991
2006 AIR SCW 2972
2007 AIR SCW 7569
(See Secretary, State of Karnataka and others v. Umadevi (3) and others, ((2006) 4 SCC
1) National Fertilizers Ltd. and Ors. v. Somvir Singh, ((2006) 5 SCC 493) and Post
Master General, Kolkata and Ors. v. Tutu Das (Dutta), ((2007) 5 SCC 317)).
20. Various institutions have sprung up in different parts of India representing that their
degrees are recognized. However, even no such representation appears to have been made
to the appellant by the said institution. The directory of institutions for higher education
merely gives details of the institutions. No statement was made therein that it was a
recognised university.
21. Maithil Vishwa Vidyapeeth Sankat Mochan Dham was a name given to an institution.
It was not a University. It is said to have been founded in the year 1962.
Admittedly, it is a privately managed institution. Although it offered a large number of
courses like Madhyama, Visarad, Shastri, Acharya, Vidyabhaskar,
Vidyaratna,Vidyavaridhi, Vidyavachaspati, Mahamahopadhyaya, the number of teachers
therein were nine only. What sort of education was imparted therein is not known. How
an institution could be run with a teacher strength of nine can very well be imagined.
It is not in dispute that the said institution was not recognized by any University. A degree
is recognized only if it is granted by a University 'constituted in terms of the University
Grants Commission Act. 1956 or under any State or Parliamentary Act. No University
can be established by a private management without any statutory backing,
22. The management of the school, when it came to learn that the appellant did not
possess a degree of B.Ed. from a recognised University, should have terminated his
services forthwith. It did not do so for reasons best known to it. It has not been shown to
us that the management of the school had any authority to allow the appellant to obtain
the requisite degree from any other University during the tenure of his services. Even the
Commission in its counter affidavit, although otherwise supports the case of the
appellant, did not say so.
Our attention has been drawn to a decision of the Punjab and Haryana High Court in Ram
Bhagat Sharma and others v. State of Haryana and others, (1997 (4) RSJ 134) wherein it
was directed :
"With a view to protect the interest of the students community, we direct the Government
of Haryana to take steps to prevent future recruitment of persons possessing
qualifications awarded by Hindi Sahitya Sammelan, Allahabad, and/or Hindi Sahitya
Sammelan, Prayag, Allahabad, and at the same time take appropriate measures to
dispense with the services of the unqualified teachers. For this purpose, the Government
of Haryana is directed to issue written instructions to all concerned that in future no
appointment be given to the persons possessing qualifications by the institutions referred
to herein above. We also direct the Government of Haryana to take steps for terminating
the services of all such teachers who have secured employment on the basis of
degrees/diplomas/certificates issued by Hindi Sahitya Sammelan, Allahabad and/or Hindi
Sahitya Sammelan, Prayag, Allahabad. However, those who have completed three years'
service should be given an opportunity to acquire the requisite qualification within a
stipulated time. In case they fall to acquire such qualification, then appropriate order be
passed to dispense with the services of such persons."
23. We, with respect, do not subscribe to the said view. In any event, it is not a case
where, this Court is to protect the interest
@page-SC1822
of the students. The question herein is as to whether the services of the appellant can be
said to have been illegally terminated or not.
24. A departmental proceeding against the appellant might have been initiated after the
change of management. We will also assume that the said proceeding was initiated after
the contempt proceeding was initiated. Appellant, however, has filed a writ application
for issuance of or in the nature of a writ of mandamus. He, therefore, must establish
existence of a legal right in himself and a corresponding legal duty in the State. If he did
not possess the requisite qualification to hold a post, he could not have any legal right to
continue. It was, therefore, immaterial as to why and when the said proceeding had been
initiated against him.
Reliance placed by Mr. P. S. Patwalia on Shainda Hasan v. State of Uttar Pradesh and
others, ((1990) 3 SCC 48) is not apposite. Therein a concession was made on behalf of
the State that the University had agreed that asking the appellant therein to leave the job
after 16 years will be doing injustice to her. Such a view might have been taken by this
Court in exercise of its extra-ordinary jurisdiction under Article 142 of the Constitution of
India. The question, however, that arose therein was as to whether the Selection
Committee could grant relaxation of the educational qualification vis-a-vis the experience
required to be obtained. It was held that such a power did not exist in the Selection
Committee. AIR 1990 SC 1381
It was, therefore, a case whether relaxation in regard to experience was sought for and
granted. It was not a case where the appellant therein lacked basic educational
qualification. Herein, we are concerned with a case where the appellant lacked basic
educational qualification.
25. Reliance has also been placed by Mr. Patwalia on Dr. M. S. Mudhol and another v. S.
D. Halegkar and others, ((1993) 3 SCC 591). Therein a writ of quo warranto was sought
for in a case involving the question as to whether a degree granted in favour of the
appellant therein was equivalent to another degree or not. It was found that as public
interest would not suffer, a writ of quo warranto may not be issued. The Court, therefore,
did not exercise its discretionary jurisdiction.
26
. Yet again reliance has been placed on Santosh Yadav (Smt.) v. State of Haryana and
others, ((1996) 9 SCC 320). Appellant therein was having a diploma which was not
approved by the State of Haryana and despite the same, teachers were appointed to meet
the State's educational needs. The validity of the said degree was not in question. Not
only appointments were made but also appointment to the appellant was offered in 1980.
His services were confirmed in 1984 and sought to be terminated in the year 1990. This
Court noticed that a relaxation was granted by the State itself which was available to her
and others similarly situated. She, having obtained regularisation in her service, it was
wrong and arbitrary on the part of educational department and the school to deprive her
of the job. The same is not the case here. 1996 AIR SCW 2660
27
. A similar question, on the other hand, came up for consideration before this Court in
Ravinder Sharma (Smt.) and another v. State of Punjab and others, ((1995) 1 SCC 138)
wherein three Judges' Bench held : 1994 AIR SCW 4438
"12. The appellant was directly appointed. In such a case, the qualification must be
either :
(i) A Graduate/Intermediate second class or,
(ii) Matric first class.
Admittedly, the appellant did not possess this qualification. That being so, the
appointment is bad. The commission recommended to the Government for relaxation of
the qualification under Regulation 7 of the Regulations. The Government rejected that
recommendation. Where, therefore, the appointment was clearly against Regulation 7, it
was liable to be set aside. That being so, no question of estoppel would ever arise. We
respectfully agree with the view taken by the High Court."
28
. Almost to the same effect is the decision of this Court in Mohd. Sartaj and Anr. v. State
of U. P. and others, (JT 2006 (1) SC 331) holding : 2006 AIR SCW 399, Para 21
"It is settled law that the qualification should have been seen which the candidate
possessed on the date of recruitment and not at a later stage unless rules to that regard
permit it. The minimum qualification prescribed under Rule 8 should be fulfilled
@page-SC1823
on the date of recruitment. Equivalence of degree of Moallim-e-Urdu, Jamia Urdu,
Aligarh with that of B.T.C. in the year 1994 would not entail the benefit to the appellants
on the date they were appointed. The appellants could not have been appointed to the post
of Asstt. Teachers without having training required under Rule 8. That being the case, the
appointments of the appellants were dehors the rules and could not be treated to be
continued. For the aforesaid reasons, we do not find any substance in the appeals and are,
accordingly, dismissed."
29. Recently again in Ashok Kumar Sonkar v. Union of India and others, ((2007) 4 SCC
54), it was held :
"16. Indisputably, the appellant herein did not hold the requisite qualification as on the
said cut-off date. He was, therefore, not eligible therefor."
30-31
. Some arguments have also been advanced before us in regard to applicability of

Removal of Difficulties Orders issued under U. P. Secondary Education Services
Selection Board Act, 1982. The services of the appellant had been terminated in the year
1997 and the cut-off date having been fixed on 1998, the said act, in our opinion, is not
applicable. The benefits rendered thereunder would not be not applicable in view of the
Full Bench decision of the High Court in Radha Raizada v. Committee of Management,
Vidyawati Darbari Girls' College, (1994 All LJ 1077) which has been approved by this
Court in Prabhat Kumar Sharma and others v. State of U.P. and others, ((1996) 10 SCC
62). 1996 AIR SCW 3288
32. For the reasons aforementioned, there is no merit in this appeal. The appeal is
dismissed. However, in the facts and circumstances of the case, there shall be no order as
to costs.
Appeal dismissed.
AIR 2008 SUPREME COURT 1823 "Daya Nand v. State of Haryana"
(From : Punjab and Haryana)
-2008.
Daya Nand v. State of Haryana.
(A) Penal Code (45 of 1860), S.299, S.300 - MURDER - CULPABLE HOMICIDE -
Murder - Or culpable homicide not murder - Determination - Court to keep in focus key
words used in S.299, S.300 - Distinction between two provisions explained. (Para
11)
(B) Penal Code (45 of 1860), S.300, S.304, Part II - MURDER - CULPABLE
HOMICIDE - Murder - Solitary injury - Gun shot fired by accused hit deceased on waist
- Offence not murder - Accused liable to be convicted only u/S.304, Part II. (Para
23)
2002 AIR SCW 3463 : AIR 2002 SC 2961 (Ref.) 22
AIR 1977 SC 45 : 1977 Cri LJ 1 (Ref.) 22
AIR 1958 SC 465 : 1958 Cri LJ 818 (Rel. on) 15, 18, 19
Judgement
2. Challenge in this appeal is to the judgment rendered by a Division Bench of the Punjab
and Haryana High Court upholding the conviction of the appellant for offence punishable
under Section 302 of the Indian Penal Code, 1860 (in short 'IPC') in terms of the
judgment dated 9/10-10-1997 passed by the Additional Sessions Judge, Hissar.
3. A synoptical re'sume' of the prosecution case is as under :
The prosecution machinery was set into motion at the instance of Shankar-PW 5 who had
four brothers. Chhajju Ram (hereinafter referred to as the 'Deceased') was younger to PW
5- Shankar and they had a joint khewat in the revenue estate of village Sirdhan. On 9-9-
1993 the said Shankar and his brother Nain Sukh and deceased Chhajju Ram went to
their fields known as Theriwala for irrigating the land. Amar Singh (who faced trial and
was acquitted) and Daya Nand (appellant herein) were already irrigating their fields.
Shankar and others were to take turn of irrigation at 8.00 a.m. from the accused. At 8.00
a.m. deceased Chhajju Ram diverted the irrigation water to his field.
@page-SC1824
Accused Daya Nand objected that his turn of water had not yet started. Chhajju Ram
retorted that their turn started from 8.00 a.m. onwards. An altercation took place between
Shankar and the deceased on one side and the accused on the other. Accused threatened
that they will see them and both of them left towards the village. Shankar and others also
went to supervise the flow of irrigation water through the water courses. In the meantime,
both the accused came from the side of village Sirdhan. Accused Daya Nand was armed
with a gun. Accused Amar Singh exhorted his son accused-Daya Nand to fire a shot.
Accused Daya Nand then fired a shot from his gun towards Chhajju Ram who took a turn
but was hit on the right side of the waist and fell down. Blood started oozing out from the
fire shot injury. Nain Sukh (PW-6) also reached there at the Naka and witnessed the
occurrence apart from Shankar. Thereafter, accused fled away towards the village along
with the gun. Chhajju Ram was admitted to Civil Hospital, Fatehabad by his brother
Shanker and Nain Sukh, where he was declared dead by the doctor. Ruqa Ex. PG was
sent by Dr. Jagdish Chaudhry to the Station House Officer, Police Station Fatehabad. A
wireless message Ex. PK was sent by the said Police Station to Police Station Bhattu.
Ram Kumar, Assistant Sub-Inspector along with some constables reached Civil Hospital,
Fatehabad and recorded the statement of Shanker in Civil Hospital, Fatehabad. That
statement Ex. PG/1 was sent to the Police Station and on its basis, FIR was recorded by
Satbir Singh MHC, copy of which is Ex. PG/3. Inquest proceedings were conducted and
report Ex. PF/1 was prepared by Ram Kumar Assistant Sub-Inspector in the presence of
Devi Lal and Shanker Lal PWs. He moved an application Ex. PF and postmortem
examination was conducted vide report Ex. PF/2 by Dr. S.P. Mimani. Multiple wounds of
small sizes were found and eleven pellets were recovered from the abdomen of the
deceased. The pellets were sealed in a vial. The clothes of the deceased were removed
and sealed into a parcel. The cause of death was due to shock and haemorrhage as a result
of firearm injuries which were ante-mortem in nature and sufficient to cause death in the
ordinary course of nature vide post-mortem report Ex. PF/ 2. Ram Kumar, Assistant Sub-
Inspector along with Ram Kumar Constable then went to village Sirdhan. He inspected
the spot in the presence of Nain Sukh, Ram Sarup, Sarpanch and Brij Lal, Chowkidar.
Bloodstained earth was lifted, made into a sealed parcel and taken into possession vide
recovery memo Ex. PH. One empty cartridge of .12 bore was found lying which was also
lifted, made into a sealed parcel and taken into possession vide memo Ex, PJ. Rough site
plan, Ex. PL, was prepared and statements of other witnesses were recorded. Accused
Daya Nand produced a double barrel gun, Ex. P-8, licence, Ex. P-9, and two live
cartridges. Sketch map, Ex. PP of the gun was prepared. The gun was placed in a sealed
parcel. The licence and the two live cartridges were also sealed in parcel and taken into
possession vide memo Ex. PP/1. The case property was sent for Chemical Examination
and for report of the Ballistic Expert of Forensic Science Laboratory, Haryana,
Madhuban. Vide report, Ex. PO, the double barrel gun, Ex. P8, was found in working
order, the empty cartridge hereinafter referred to as the crime cartridge, which was lifted
from the spot, Ex. P6, was opined to have been fired from the said gun. The pellets
recovered from the dead body were opined to be pellets as are usually loaded in shot gun
cartridges, including .12 bore cartridge. As per reports, Ex. PO/1 and Ex. PO/ 2, human
blood was found in blood-stained earth and on shirt, Ex. P-1, Banian, Ex. P-2 and
underwear Ex. P-3 of the accused. After completion of investigation, accused was sent up
for trial.
Charge was framed against accused Daya Nand under Section 302, IPC and 27 of the
Arms Act, 1959. Charge was framed against accused Amar Singh under Section 302 read
with Section 34, IPC.
4. In order to establish the accusations the prosecution examined 10 witnesses and the
report of the Forensic Science Laboratory, Haryana, Madhuban was exhibited.
5. Accused persons during their examination under Section 313 of the Code of Criminal
Procedure, 1973 (in short 'Cr.P.C.') pleaded innocence and false implication. The Trial
Court relied on the evidence of eyewitnesses Shankar (PWS) and Nain Sukh (PW6). It
found the prosecution evidence cogent and credible and recorded conviction of the
appellant. But so far as accused Amar Singh is concerned, it was held that the evidence
was not sufficient to fasten guilt on him.
@page-SC1825
6. In appeal, it was submitted that the evidence of Shankar (PW5) and Nain Sukh (PW6)
should not have been relied upon. It was further submitted that a single shot that too on
the hip cannot attract application of Section 302, IPC. Prosecution with reference to the
evidence of Shankar (PW5) and Nain Sukh (PW6) submitted that the evidence was clear
and cogent and, therefore, the accused persons were to be convicted, The High Court, as
noted above, dismissed the appeal.
7. Basic challenge in this appeal is to the conviction under Section 302, IPC.
8. It was contended, as was done before the Trial Court and the High Court, that Section
302, IPC has no application.
9. Learned counsel for the State, on the other hand supported the impugned judgment.
10. The crucial question is as to which was the appropriate provision to be applied. In the
scheme of the IPC culpable homicide is genus and 'murder' its specie. All 'murder' is
'culpable homicide' but not vice-versa. Speaking generally, 'culpable homicide' sans
'special characteristics of murder is culpable homicide not amounting to murder'. For the
purpose of fixing punishment, proportionate to the gravity of the generic offence, the IPC
practically recognizes three degrees of culpable homicide. The first is, what may be
called, 'culpable homicide of the first degree'. This is the gravest form of culpable
homicide, which is defined in Section 300 as 'murder'. The second may be termed as
'culpable homicide of the second degree'. This is punishable under the first part of Section
304. Then, there is 'culpable homicide of the third degree'. This is the lowest type of
culpable homicide and the punishment provided for it is also the lowest among the
punishments provided for the three grades. Culpable homicide of this degree is
punishable under the second part of Section 304.
11. The academic distinction between 'murder' and 'culpable homicide not amounting to
murder' has always vexed the Courts. The confusion is caused, if Courts losing sight of
the true scope and meaning of the terms used by the legislature in these sections, allow
themselves to be drawn into minute abstractions. The safest way of approach to the
interpretation and application of these provisions seems to be to keep in focus the
keywords used in the various clauses of Sections 299 and 300. The following
comparative table will be helpful in appreciating the points of distinction between the two
offences.
Section 299 Section 300

A person commits culpable homicide if the act by which the death is caused is done ?
Subject to certain exceptions culpable homicide is murder if the act by which the
death is caused is done ?
INTENTION
(a) with the intention of causing death; or (1) with the intention of causing death; or
(b) with the intention of causing such bodily injury as is likely to cause death; or (2)
with the intention of causing such bodily injury as the offender knows to be likely to
cause the death of the person to whom the harm is caused; or
(3) With the intention of causing bodily injury to any person and the bodily injury
intended to be Inflicted is sufficient in the ordinary course of nature to cause death; or
KNOWLEDGE
****
(c) with the knowledge that the act is likely to cause death, (4) with the knowledge that
the act is so imminently dangerous that it must in all probability cause death or such
bodily injury as is likely to cause death, and without any excuse for incurring the risk of
causing death or such injury as is mentioned above.
@page-SC1826
12. Clause (b) of Section 299 corresponds with clauses (2) and (3) of Section 300. The
distinguishing feature of the mens rea requisite under clause (2) is the knowledge
possessed by the offender regarding the particular victim being in such a peculiar
condition or state of health that the internal harm caused to him is likely to be fatal,
notwithstanding the fact that such harm would not in the ordinary way of nature be
sufficient to cause death of a person in normal health or condition. It is noteworthy that
the 'intention to cause death' is not an essential requirement of clause (2). Only the
intention of causing the bodily injury coupled with the offender's knowledge of the
likelihood of such Injury causing the death of the particular victim, is sufficient to bring
the killing within the ambit of this clause. This aspect of clause (2) is borne out by
illustration (b) appended to Section 300.
13. Clause (b) of Section 299 does not postulate any such knowledge on the part of the
offender. Instances of cases falling under clause (2) of Section 300 can be where the
assailant causes death by a fist blow intentionally given knowing that the victim is
suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is
likely to cause death of that particular person as a result of the rupture of the liver or
spleen or the failure of the heart, as the case may be. If the assailant had no such
knowledge about the disease or special frailty of the victim, nor an intention to cause
death or bodily injury sufficient in the ordinary course of nature to cause death, the
offence will not be murder, even if the injury which caused the death, was intentionally
given. In clause (3) of Section 300, instead of the words 'likely to cause death' occurring
in the corresponding clause (b) of Section 299, the words "sufficient in the ordinary
course of nature to cause death" have been used. Obviously, the distinction lies between a
bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of
nature to cause death. The distinction is fine but real and if overlooked, may result in
miscarriage of justice. The difference between clause (b) of Section 299 and clause (3) of
Section 300 is one of the degree of probability of death resulting from the intended bodily
injury. To put it more broadly, it is the degree of probability of death which determines
whether a culpable homicide is of the gravest, medium or the lowest degree. The word
'likely' in clause (b) of Section 299 conveys the sense of probable as distinguished from a
mere possibility. The words "bodily injury.......sufficient in the ordinary course of nature
to cause death" mean that death will be the "most probable" result of the injury, having
regard to the ordinary course of nature.
14. For cases to fall within clause (3), it is not necessary that the offender intended to
cause death, so long as the death ensues from the intentional bodily injury or injuries
sufficient to cause death in the ordinary course of nature. Rajwant and Anr. v. State of
Kerala, (AIR 1966 SC 1874) is an apt illustration of this point.
15. In Virsa Singh v. State of Punjab, (AIR 1958 SC 465), Vivian Bose, J. speaking for
the Court, explained the meaning and scope of clause (3). It was observed that the
prosecution must prove the following facts before it can bring a case under Section 300,
"Thirdly". First, it must establish quite objectively, that a bodily injury is present;
secondly the nature of the injury must be proved. These are purely objective
investigations. Thirdly, it must be proved that there was an intention to inflict that
particular injury, that is to say, that it was not accidental or unintentional or that some
other kind of injury was intended. Once these three elements are proved to be present, the
enquiry proceeds further, and fourthly it must be proved that the Injury of the type just
described made up of the three elements set out above was sufficient to cause death in the
ordinary course of nature. This part of the enquiry is purely objective and inferential and
has nothing to do with the intention of the offender.
16. The ingredients of clause "Thirdly" of Section 300, IPC were brought out by the
illustrious Judge in his terse language as follows :
"To put it shortly, the prosecution must prove the following facts before it can bring a
case under Section 300, "Thirdly".
First, it must establish, quite objectively, that a bodily injury is present.
Secondly, the nature of the injury must be proved. These are purely objective
investigations.
Thirdly, it must be proved that there was an intention to inflict that particular bodily
injury, that is to say that it was not accidental or unintentional, or that some other
@page-SC1827
kind of injury was intended.
Once these three elements are proved to be present, the enquiry proceeds further and,
Fourthly, it must be proved that the injury of the type just described made up of the three
elements set out above is sufficient to cause death in the ordinary course of nature. This
part of the enquiry is purely objective and inferential and has nothing to do with the
intention of the offender."
17. The learned Judge explained the third ingredient in the following words (at page
468) :
"The question is not whether the prisoner intended to inflict a serious injury or a trivial
one but whether he intended to inflict the injury that is proved to be present. If he can
show that he did not, or if the totality of the circumstances justify such an inference, then
of course, the intent that the section requires is not proved. But if there is nothing beyond
the injury and the fact that the appellant inflicted it, the only possible inference is that he
intended to inflict it. Whether he knew of its seriousness or intended serious
consequences, is neither here nor there. The question, so far as the intention is concerned,
is not whether he intended to kill, or to inflict an injury of a particular degree of
seriousness but whether he intended to inflict the injury in question and once the
existence of the injury is proved the intention to cause it will be presumed unless the
evidence or the circumstances warrant an opposite conclusion."
18
. These observations of Vivian Bose, J. have become locus classicus. The test laid down
by Virsa Singh's case (supra) for the applicability of clause "Thirdly" is now ingrained in
our legal system and has become part of the rule of law. Under clause Thirdly of Section
300, IPC, culpable homicide is murder, if both the following conditions are satisfied: i.e.
(a) that the act which causes death is done with the intention of causing death or is done
with the intention of causing a bodily injury; and (b) that the injury intended to be
inflicted is sufficient in the ordinary course of nature to cause death. It must be proved
that there was an intention to inflict that particular bodily injury which, in the ordinary
course of nature, was sufficient to cause death, viz., that the injury found to be present
was the injury that was intended to be inflicted. AIR 1958 SC 465
19
. Thus, according to the rule laid down in Virsa Singh's case, even if the intention of
accused was limited to the infliction of a bodily injury sufficient to cause death in the
ordinary course of nature, and did not extend to the intention of causing death, the
offence would not be murder. Illustration (c) appended to Section 300 clearly brings out
this point. AIR 1958 SC 465
20. Clause (c) of Section 299 and clause (4) of Section 300 both require knowledge of the
probability of the act causing death. It is not necessary for the purpose of this case to
dilate much on the distinction between these corresponding clauses. It will be sufficient
to say that clause (4) of Section 300 would be applicable where the knowledge of the
offender as to the probability of death of a person or persons in general as distinguished
from a particular person or persons being caused from his imminently dangerous act,
approximates to a practical certainty. Such knowledge on the part of the offender must be
of the highest degree of probability, the act having been committed by the offender
without any excuse for incurring the risk of causing death or such injury as aforesaid.
21. The above are only broad guidelines and not cast iron imperatives. In most cases,
their observance will facilitate the task of the Court. But sometimes the facts are so
intertwined and the second and the third stages so telescoped into each other that it may
not be convenient to give a separate treatment to the matters involved in the second and
third stages.
22
. The position was illuminatingly highlighted by this Court in State of Andhra Pradesh v.
Rayavarapu Punnayya and Anr. (1976 (4) SCC 382); Abdul Waheed Khan @ Waheed and
Ors. v. State of Andhra Pradesh (2002 (7) SCC 175); Augustine Saldanha v. State of
Karnataka (2003 (10) SCC 472); Thangiya v. State of T.N. (2005 (9) SCC 650) and in
Rajinder v. State of Haryana (2006 (5) SCC 425). AIR 1977 SC 45
2002 AIR SCW 3463
2003 AIR SCW 4410
2005 AIR SCW 76
2006 AIR SCW 2987
23. Considering the evidence on record in the background of the principles of law, the
inevitable conclusion is that the appropriate conviction would be under Section
@page-SC1828
304 Part II, IPC. The conviction is accordingly altered.
24. Undisputedly, the accused has suffered custody of nearly 8½ years. The sentence is
restricted, therefore, to the period already undergone. The appeal is allowed to that extent.
The accused person be set at liberty forthwith unless required in custody in any other
case.
Order accordingly.
AIR 2008 SUPREME COURT 1828 "Godfrey Phillips India Ltd., M/s. v. Ajay Kumar"
Coram : 2 Dr. A. PASAYAT AND P. SATHASIVAM JJ.
Civil Appeal Nos.2339 with 2340 of 2008* (arising out of SLP (C) Nos.532 with 5051 of
2007), D/- 1 -4 -2008.
M/s. Godfrey Phillips India Ltd. v. Ajay Kumar.
(A) Consumer Protection Act (68 of 1986), S.14 - CONSUMER PROTECTION -
UNFAIR TRADE PRACTICE - COMPLAINT - Consumer fora - Power to issue
directions - Complaint of unfair trade practice against cigarette advertisement -
Advertisement in question carrying photo of action Hero, slogan and statutory warning -
No plea in complaint that use of photo of action Hero and slogan suggested that smokers
of appellant's cigarette can act as Super Hero - Detraction of statutory warning also not
alleged - Direction issued to discontinue publication of advertisement - Uncalled for.
(Para 15)
(B) Consumer Protection Act (68 of 1986), S.14 - CONSUMER PROTECTION -
COMPLAINT - Consumer fora - Direction to issue corrective advertisement - Complaint
against cigarette advertisement - Direction issued to publish corrective advertisement -
Falls in teeth of prohibition under 2003 Act - Moreover, Commission at relevant time had
no such powers - Direction liable to be set aside.
Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of
Trade and Commerce, Production, supply and Distribution) Act (34 of 2003), S.5. (Para
15)
(C) Consumer Protection Act (68 of 1986), S.14 - CONSUMER PROTECTION -
Consumer fora - Power to direct payment of compensation - Precondition is sufferance of
loss or injury by complainant - Complaint against cigarette advertisement - Complainant,
smoker of cigarette since long - Advertisement cannot be said to have affected
complainant and/or caused any loss to him - No evidence of negligence by cigarette
company - Compensation awarded to complainant - Unsustainable. (Paras 16, 17)
AIR 1962 SC 630 (Rel. on) 15
AIR 1937 PC 146 (Rel. on) 15
Ashok H. Desai, Sr. Advocate, Subrat Deb, Akhil P. Chhabra and Rajan Narain, for
Appellant; Respondent in person.
* From Judgment and Order of the National Consumer Disputes Redressal Commission,
New Delhi in M. P. No. 289 of 2006 in Revn. Petn. No.40 of 2002, D/- 14-7-2006.
Judgement
2. Challenge in these appeals is to the order of National Consumer Disputes Redressal
Commission, New Delhi (in short the 'National Commission'). One order was passed in
exercise of revisional jurisdiction against the concurrent finding of the District Consumer
Disputes Redressal Forum, Yamuna Nagar (in short 'District Forum') and State Consumer
Disputes Redressal Commission (in short 'State Commission') dated 11-5-2001 and 12-7-
2001 respectively. Commission has also issued directions.
3. The review petition filed was also dismissed, which also forms subject-matter of
challenge.
The respondent filed a complaint in respect of an advertisement given by the appellant,
alleging unfair trade practices. The advertisement was issued in newspapers and
magazines in 1999 for the cigarettes manufactured and sold by it under the brand name of
"Red and White" in respect of which the directions have been issued.
The impugned advertisement apart from showing the packet of cigarettes with the
aforesaid brand name stated "Red and White smokers are one of a kind". The
advertisement also shows the smiling face of actor Akshay Kumar holding a cigarette. It
also contains the statutory warning "Cigarette smoking is injurious to health" as well as
price of the pack. The complaint was dismissed by the District Forum as the complainant
had also filed a suit in relation to
@page-SC1829
the impugned advertisement in the Civil Court. It was therefore held by the District
Forum that parallel proceedings in the District Forum by way of Public Interest Litigation
could not be entertained. In appeal, the State Commission affirmed the order of the
District Forum. Thereafter, complainant withdrew the suit, but filed Revision Petition
before the National Commission. The National Commission held that the slogan in the
advertisement that "Red and White smokers are one of a kind" showing the image of
Akshay Kumar indicated that ".......smokers of Red and White cigarettes could be super
actor performing all the film stunts without duplicates". According to the appellant, no
evidence was led in the case by the complainant either with regard to the ability of film
star Akshay Kumar to carry out stunts without duplicate or with regard to the alleged
impression created by the impugned advertisement upon the complainant. Interestingly,
the complainant admitted that he continues to smoke cigarette for more than two decades.
The National Commission held as follows :
"The case of the complainant is that smoking of cigarette by Akshay Kumar with the
slogans used in advertisement would detract the people from the statutory warning.
Seeing comparative size of the letters etc. the statutory warning in our view loses its
prominence which is usurped by more prominent and attractive Akshay Kumar et al and
is sufficient to detract the attention of the viewers from the statutory warning to the image
of Akshay Kumar with the slogan indicating smokers of Red and White cigarette could be
super actor performing all the film stunts without duplicates."
This according to the National Commission was sufficient to hold that the impugned
advertisement amounted the unfair trade practices. On the basis of the aforesaid finding,
the National Commission gave the following directions :
"(i) to discontinue forthwith the unfair trade practice of detracting from the statutorily
specified warning and not publish any advertisements like Ext. 'R-1' in any language
giving any impression that a person who smokes Red and White Cigarette could perform
such acts as could be performed by Akshay Kumar in films and thereby detracting from
the specified warning; and
(ii) to issue corrective advertisements of equal size in all the newspapers in which
advertisements in Hindi and English like Ext. R-1 were published to neutralize the effect
of the said impugned misleading advertisements.
(iii) Shri Ajay Kumar, the petitioner, shall be paid a sum of Rs. 20,000/- by way of
compensation and Rs. 5,000/- as cost."
5. According to the appellant the direction (ii) as quoted above was passed on the basis of
provisions of the Consumer Protection Act, 1986 (in short the 'Act') which was not
applicable and was not in force at the time of publication of the impugned advertisement
in the year 1999. Such a direction could not have been issued in disregard of the
applicable provision of law. Therefore, a Review Petition was filed. In the Review
Petition the appellant had contended that direction (iii) to award compensation of Rs.
20,000/- to the complainant was passed without any claim for compensation made in the
complaint. With regard to direction (i) to discontinue unfair trade practice and not to
publish any advertisement like the impugned advertisement, the appellant took the stand
that when direction was given by order dated 20-2-2006 an enactment being the
Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of
Trade and Commerce, Production, Supply and Distribution) Act, 2003 (in short
'Advertisement Act') had already come into force w.e.f. 18-5-2003 by which all
advertisements in relation to cigarettes had already been prohibited. As such there was no
need for issuing such direction.
6. The Review Petition was dismissed without considering the specific contentions by
merely stating that there was no ground for review.
7. Learned counsel for the appellant has submitted that issuing a corrective advertisement
was relatable to Section 14 of the Act (as it stood in 1999) which reads as follows :
"14. Finding of the District Forum - (1) If, after the proceeding conducted under section
13, the District Forum is satisfied that the goods complained against suffer from any of
the defects specified in the complaint or that any of the allegations contained in the
complaint about the services are proved, it shall issue an order to the opposite party
directing him to do one or more of the following things, namely :-
(a) to remove the defect pointed out by
@page-SC1830
the appropriate laboratory from the goods in question;
(b) to replace the goods with new goods of similar description which shall be free from
any defect,
(c) to return to the complainant the price, or, as the case may be, the charges paid by the
complainant;
(d) to pay such amount as may be awarded by it as compensation to the consumer for any
loss or injury suffered by the consumer due to the negligence of the opposite party;
(e) to remove the defects or deficiencies in the services in question;
(f) to discontinue the unfair trade practice or the restrictive trade practice or not to repeat
them;
(g) not to offer the hazardous goods for sale;
(h) to withdraw the hazardous goods from being offered for sale;
(i) to provide for adequate costs to parties."
8. The aforesaid Section 14 of the Act has been amended w.e.f. 15-3-2003 and following
clause (hc) was added :
"(hc) to issue corrective advertisement to neutralize the effect of misleading
advertisement at the cost of the Opposite Party responsible for issuing such misleading
advertisement."
9. Therefore, the direction No. (ii) as given could not have been given when no such
clause existed at the time of issuance of the advertisement, and as such it could not have
been invoked. The complaint was filed on 10-1-2000. The prayer was as follows :
"It is, therefore, respectfully prayed that the complaint of the Complainant may kindly be
accepted in the interest of the justice, equity and fair play. And the Opposite Party may
kindly be directed to discontinue the said unfair trade practice and not to repeat the same
and help mitigating its effects in teenagers."
10. Therefore, it is submitted that the direction to issue corrective advertisement on the
basis of provision of law which was not introduced at the relevant time could not have
been given and, therefore, review should have been allowed.
11. It is pointed out that Section 5(2)(a) of the Cigarettes Advertisement Act reads as
follows :
"5(2) - No person, for any direct or indirect pecuniary benefit, shall (a) display, cause to
display, or permit or authorize to display any advertisement of cigarettes or any other
tobacco product."
12. Section 5(1) also has relevance, and reads as follows :
"5 - Prohibition of advertisement of cigarettes and other tobacco products - (1) No person
engaged in, or purported to be engaged in the production, supply or distribution of
cigarettes or any other tobacco products shall advertise and no person having control over
a medium shall cause to be advertised cigarettes or any other tobacco products through
that medium and no person shall take part in any advertisement which directly or
indirectly suggests or promotes the use of consumption of cigarettes or any other tobacco
products."
13. It is, therefore, submitted that the order of the National Commission is unsustainable.
14. There is no appearance on behalf of the respondent in spite of service of notice.
15. As rightly contended by learned counsel for the appellant direction (i) was given
without any material or evidence whatsoever and there was not even a suggestion/
pleading that the advertisement was of Akshay Kumar or that he could perform certain
stunts without duplicates. There was not even an allegation that the statutory warning was
detracted from. When such serious allegation which was required to be established was
not even specifically pleaded and when nothing specific was indicated in the complaint,
the Commission should not have given the direction on pure surmises. In this context,
decision of the Privy Council in Bharat Dharma Syndicate v. Harish Chandra (AIR 1937
PC 146) and of this Court in. The Union of India v. Pandurang Kashinath More (AIR
1962 SC 630) are relevant. So far as direction No. (ii) is concerned it is to be noted that
Section 5(1) and Section 5(2) of the Advertisement Act clearly prohibited issuance of any
advertisement in relation to cigarettes. Therefore, the corrective advertisement as directed
by the National Commission could not have been given. Further, the power for giving
such direction was introduced under Section 14 of the Act w.e.f. 15-3-2003. In view of
the aforesaid, direction No. (ii) cannot be sustained.
@page-SC1831
16. So far as direction No. (iii) is concerned, it is to be noted that there was no prayer for
any compensation. There was no allegation that the complainant had suffered any loss.
Compensation can be granted only in terms of Section 14(1)(d) of the Act. Clause (d)
contemplates award of compensation to the consumer for any loss or injury suffered due
to negligence of the opposite party. In the present case there was no allegation or material
placed on record to show negligence.
17. Interestingly, there was no allegation or finding of loss or injury caused to the
respondent on account of the advertisement issued in 1999. The complainant himself had
stated that he was smoking cigarettes for the last two decades. Therefore, the impugned
advertisement cannot be said to have affected the complainant and/or caused any loss to
him to warrant grant of compensation.
18. Another aspect which needs to be noted is that the complainant had stated in his
complaint that he had filed a complaint in public interest and had accepted that the matter
was pending before the Civil Court. The District Forum and the State Commission had,
therefore, dismissed the complaint of the appellant.
19. It is to be noted that the National Commission itself noted that the respondent was not
representing a "Voluntary Consumer Association" registered under the Companies Act,
1956 or under any other law for the time being in force and was not entitled to file a
complaint about unfair trade practice to represent other consumers. Having said so it is
not understandable as to how the National Commission even proceeded to deal with the
complaint. It also noted that the complainant had not moved any application or obtained
any permission under Section 13(6) of the Act and/or no such permission was granted. In
the circumstances, it was not permissible for the complainant to represent others. The
complainant's case right through was that he was filing a petition in public interest. After
having recorded that the complaint in that manner was not entertainable, the National
Commission Could not have passed the impugned order.
20. Looked at from any angle, the orders of the National Commission are indefensible
and are set aside. The appeals are allowed with no order as to costs.
Appeal allowed.
AIR 2008 SUPREME COURT 1831 "UCO Bank v. Rajinder Lal Capoor"
Coram : 2 S. B. SINHA AND MARKANDEY KATJU, JJ.
Review Petition (C) No. 748 of 2007 in C. A. No. 2739 of 2007, D/- 31 -3 -2008.
UCO Bank and Anr. v. Rajinder Lal Capoor.
(A) Banking Companies (Acquisition and Transfer of Undertakings) Act (5 of 1970),
S.19 - UCO Bank Officer Employees' (Discipline and Appeal) Regulations (1976),
Regn.6 - UCO Bank (Officers') Service Regulations (1979), Regn.20 - BANKING -
SERVICE MATTERS - DISCIPLINARY PROCEEDINGS - SUPERANNUATION -
Disciplinary proceedings - Initiation and continuation after superannuation - Cannot be
justified by taking recourse to deeming fiction as to pendency of disciplinary proceedings
created by Regn.20 of 1979 Regulations - 1979 Regulations and 1976 Regulations
operate in different fields.
Initiation of disciplinary proceedings after a bank official has superannuated and his
consequent dismissal from service cannot be justified on ground that show cause notice
was issued to him immediately prior to his retirement and that in view of legal fiction
created under Regn. 20 of 1979 Regulations disciplinary proceedings would be deemed
to be pending against him on date of his superannuation. (Paras 18, 19, 20)
The procedure for imposing major penalties is provided by 1976 Regulations. Regn. 6
thereof provided that no proceeding for imposing major penalties shall be initiated except
after an inquiry is held in accordance with the provisions thereof. The 1976 Regulations
provide for the mode and manner in which a disciplinary proceeding is initiated. It
expressly provides for service of charge-sheet. Service of charge-sheet is a necessary
ingredient for initiation of disciplinary proceedings. A preliminary enquiry is not
contemplated under the 1976 Regulations. A disciplinary proceeding is initiated in terms
of 1976 Regulations, which are applicable only in a case where a proceeding is initiated
for the purpose of taking disciplinary action against a delinquent officer for the purpose
of imposing a punishment on him. The 1979 Regulations on the other hand would be
attracted when no disciplinary proceeding is possible to be initiated. The 1976
Regulations and the Regulations of 1979 thus operate in different fields. (Paras 16, 17,
22)
@page-SC1832
Regn. 20 of the 1979 Regulations, deals with termination of service where the
performance of an officer is unsatisfactory or inadequate or where there is a bona fide
suspicion about his integrity or where his retention in the Bank's service is prejudicial to
interests of the disciplinary procedure. Regn. 20(2) of the 1979 Regulations places an
embargo on an official to leave or discontinue his service of the Bank without giving a
notice in writing. It prescribes a period of notice. Regn. 20(3) places an embargo on an
officer to leave or discontinue or resign from service without the prior approval in writing
of the competent authority and a notice or resignation given by such an officer before or
during the disciplinary proceedings shall not take effect unless it is accepted by the
competent authority. Regn. 20(2)(ii) raises a legal fiction. Such legal fiction has been
raised only for the purpose of 'this Regulation' and for no other, which would mean Regn.
20(1). Regn. 20(3)(iii) deals with continuation of disciplinary proceedings beyond
superannuation. Such disciplinary proceedings indisputably for the purpose of
applicability of sub-regulation (3) must have been initiated in terms of the 1976
Regulations. The 1979 Regulations would be attracted only for the purpose of termination
of service. Had the intention of the regulation making authority been that the legal fiction
created under Cl. (ii) of sub-regulation (3) of Regn. 20 would cover both Cls. (i) and (iii),
the same should have been placed only after Cl. (iii).(Paras 13, 14, 15, 20)
Ordinarily a departmental proceeding cannot be continued after superannuation of
employee. A rule which empowers authority to continue proceedings thereafter must be a
statutory Rule. A fortiori it must be a rule applicable to disciplinary proceedings. (Para
22)
(B) INTERPRETATION OF STATUTES - Interpretation of Statutes - Deeming clause -
Legal fiction cannot be extended so as to transgress scope and purport for which it is
created. (Para 20)
2008 AIR SCW 208 : AIR 2008 SC 876 (Ref.) 20
2008 AIR SCW 844 : 2008 (2) AIR Kar R 268 (Rel. on) 20
2008 AIR SCW 2169 (Ref.) 20
2007 AIR SCW 2662 : AIR 2007 SC 1706 (Ref.) 4
2007 AIR SCW 3734 : AIR 2007 SC 1971 (Ref.) 20
2007 AIR SCW 7303 : AIR 2008 SC 475 (Ref.) 24
2007 (6) Scale 348 (Ref.) 4
(2007) 6 SCC 81(Ref.) 20
1991 AIR SCW 2276 : AIR 1991 SC 2010 : 1991 Lab IC 2045 (Ref.) 4
AIR 1991 SC 855 (Ref.) 20
AIR 1973 SC 1227 : 1973 Lab IC 851 (Ref.) 24
(1951) 2 All ER 587 20
S.B. Sanyal, Sr. Advocate, Rajesh Singh, for Appellants; Deepak Sibal, Ejaz Maqbool,
Vikas Singh, Ms. Taruna Singh and Abhimeet Sinha, for Respondent.
Judgement
1
. S. B. SINHA, J. :- Review Petitioners herein have filed this application for review of
this Court's judgment and order dated 18-05-2007 passed in Civil Appeal No. 2739 of
2007. Reported in 2007 AIR SCW 3656 : AIR 2007 SC 2129
2. Respondent was working with the appellant-Bank. Almost immediately prior to his
retirement, he was asked to show cause as to why action under the UCO Bank (Officers')
Service Regulations, 1979 (for short "the 1979 Regulations") should not be taken against
him by notices dated 24-10-1996 and 30-10-1996.
3. Respondent reached his age of superannuation on 30-11-1996. A disciplinary
proceeding was initiated against him immediately thereafter. A charge-sheet, however,
was issued only on 13-11-1998. He was dismissed from service upon initiating a
departmental proceedings.
4
. A writ petition filed by him was allowed. Petitioner-Bank filed an appeal upon grant of
special leave thereagainst. One of the questions which arose for consideration before this
Court was whether in absence of any charge-sheet having been issued, the disciplinary
proceedings could be said to have been initiated in view of the decisions of this Court in
Union of India etc. etc. v. K.V. Jankiraman, etc. etc. [AIR 1991 SC 2010]; Union of India
and Ors. v. Sangram Keshari Nayak [2007 (6) SCALE 348] and Coal India Ltd. and Ors.
v. Saroj Kumar Mishra [2007 (5) SCALE 724]. 1991 AIR SCW 2276
2007 AIR SCW 2662
5. When the said question was raised, the 1979 Regulations were not before us
@page-SC1833
is Court asked the learned counsel to hand over the regulations by the next day. It was not
complied with.
However, on 18-05-2007 when the judgment was to be delivered, a prayer was made to
defer the pronouncement of the judgment so as to enable the appellants to place the
regulations. The said prayer was declined and the judgment was pronounced. It is in the
aforementioned factual backdrop, this review petition has been filed.
6. In the review application, the petitioner inter alia seeks to bring to our notice the
relevant provisions of the 1979 Regulations so as to contend that by reason thereof, a
legal fiction has been created to the effect that a disciplinary proceedings shall be deemed
to be pending, if the delinquent officer was placed under suspension or any notice was
issued to him to show cause why any disciplinary proceedings shall not be initiated
against him and will be deemed to be pending untill the final orders are passed by the
competent authority.
7. Indisputably, the appellants have framed three different regulations governing the
conditions of service of its employees.
8. The UCO Bank Officer Employees' (Discipline and Appeal) Regulations, 1976 (for
short "the 1976 Regulations) have been framed by reason of Section 19 of the Banking
Companies (Acquisition and Transfer of Undertakings) Act, 1970 in consultation with the
Reserve Bank of India and with the previous sanction of the Central Government.
Regulation 4 of the 1976 Regulations provides for the penalties. Regulation 6 provides
for the procedure for imposing major penalties. Sub-regulation (1) of Regulation 6
provides that no proceeding for imposing major penalties shall be initiated except after an
inquiry is held in accordance with the provisions thereof. Sub-regulation (2) of
Regulation 6 provides that when the disciplinary authority is of the opinion that there
were grounds for inquiring into the truth of any imputation of misconduct, an inquiry
officer is to be appointed. Sub-Regulations (3), (4) and (5) of Regulation 6 read as under :
"(3) Where it is proposed to hold an inquiry, the Disciplinary Authority shall frame
definite and distinct charges on the basis of the allegations against the officer employee
and the articles of charge, together with a statement of the allegations, on which they are
based, shall be communicated In writing to the officer employee, who shall be required to
submit within such time as may be specified by the Disciplinary Authority (not exceeding
15 days) or within such extended time as may be granted by the said Authority, a written
statement of his defence.
(4) On receipt of the written statement of the officer employee, or if no such statement is
received within the time specified, an enquiry may be held by the Disciplinary Authority
itself, or if it considers it necessary so to do appoint under sub-regulation (2) an Inquiring
Authority for the purpose:
Provided that it may not be necessary to hold an inquiry in respect of the articles of
charge admitted by the officer employee in his written statement but shall be necessary to
record its findings on each such charge.
(5) The Disciplinary Authority shall, where it is not the inquiring authority, forward to the
inquiring authority :
(i) a copy of the articles of charges and statement of imputations of misconduct or
misbehaviour;"
9. In exercise of the same power, the Board of Directors have also framed the UCO Bank
Officer Employees (Conduct) Regulations, 1976 (for short "the 1976 Conduct
Regulations") providing for the code of conduct for the bank officers. Any breach in
terms of Regulation 24 of the 1976 Conduct Regulations is deemed to constitute a
misconduct punishable under the 1976 Regulations.
10. The 1979 Regulations were also framed under the same power by the Board of
Directors of the Bank. The 1979 Regulations deal with different terms of the employment
of service. Chapter IV deals with appointments, probation, confirmation, promotions, etc.
Chapter V deals with allowances. Chapter VI deals with medical aid, residential
accommodation, etc. Chapter VII provides for the kinds of leave to which an employee is
entitled to. Chapter VIII provides for travelling allowances, etc. Chapter IX provides for
provident fund and pension. Chapter X provides for transfer of employees from one
branch to another. Chapter XI provides for power to implement regulations.
11. We are concerned herein with Regulation 20 of the 1979 Regulations which finds
place in Chapter IV. As noticed hereinbefore,
@page-SC1834
the heading of the said Regulation is 'termination of service'. Regulation 20 ex facie does
not deal with termination of service by way of misconduct which is governed by the 1976
Regulations and the 1976 Conduct Regulations.
12. Regulation 20 of the 1979 Regulations reads as under :
"20(1)(a). Subject to sub-regulation 3 of regulation 16 where the Bank is satisfied that the
performance of an officer is unsatisfactory or inadequate or there is a bona fide suspicion
about his integrity or his retention in the Bank's service would be prejudicial to interests
of the Bank, and where it is not possible or expedient to proceed against him as per the
disciplinary procedure, the Bank may terminate his services on giving him three months'
notice or emoluments in lieu thereof in accordance with the guidance Issued by the
Government from time to time.
(b) Order of termination under this sub-regulation shall not be made unless such officer
has been given a reasonable opportunity of making a representation to the Bank against
the proposed order.
(c) The decision to terminate the services of an officer employee under sub-regulation (a)
above will be taken only by the Chairman and Managing Director.
(d) The officer employee shall be entitled to appeal against any order passed under sub-
regulation (a) above by preferring an appeal within 15 days to the Board of Directors of
the Bank. If the appeal is allowed, the order under sub-regulation (a) shall stand
cancelled.
(e) Where an officer employee whose services have been terminated and who has been
paid an amount of three months emoluments in lieu of notice and on appeal his
termination is cancelled, the amount paid to him in lieu of notice shall be adjusted against
the salary that he would have earned, had his services not been terminated and he shall
continue the Bank's employment on same terms and conditions as if the order of
termination had not been passed at all.
(f) An officer employee whose services are terminated under sub-regulation (a) above
shall be paid Gratuity, Provident Fund including employer's contribution and all other
dues that may be admissible to him as per rules notwithstanding the years of service
rendered.
(g) Nothing contained hereinabove will affect the Bank's right to retire an officer
employee under Regulation 19(1).
2. An officer shall not leave or discontinue his service in the Bank without first giving a
notice in writing of his intention to leave or discontinue his service or resign. The period
of notice required shall be 3 months and shall be submitted to the competent authority as
prescribed in these regulations.
Provided further that the competent authority may reduce the period of 3 months or remit
the requirement of notice.
3(i) An officer against whom disciplinary proceedings are pending shall not leave/
discontinue or resign from his service in the bank without the prior approval in writing of
competent authority and any notice or resignation given by such an officer before or
during the disciplinary proceedings shall not take effect unless it is accepted by the
competent authority.
(ii) Disciplinary proceedings shall be deemed to be pending against any employee for the
purpose of this regulation if he has been placed under suspension or any notice has been
issued to him to show cause why disciplinary proceedings shall not be instituted against
him and will be deemed to be pending until final orders are passed by the competent
authority.
(iii) The officer against whom disciplinary proceedings have been initiated will cease to
be in service on the date of superannuation but the disciplinary proceedings will continue
as if he was in service until the proceedings are concluded and final order is passed in
respect thereof. The concerned officer will not receive any pay and/ or allowance after the
date of superannuation. He will also not be entitled for the payment of retirement benefits
till the proceedings are completed and final order is passed thereon except his own
contributions to CPF."
13. Sub-regulation (1) of Regulation 20 of the 1979 Regulations, thus, deals with
termination of service where the performance of an officer is unsatisfactory or inadequate
or where there is a bona fide suspicion about his integrity or where his retention in the
bank's service is prejudicial to interests of the disciplinary procedure. Other Sub-
regulations of Regulation 20 provides
@page-SC1835
for the mode and manner in which such termination may be effected as also his
entitlement to prefer an appeal thereagainst and other benefits to which he would be
otherwise entitled to.
14. Sub-regulation (2) of Regulation 20 of the 1979 Regulations places an embargo on an
official to leave or discontinue his service of the bank without giving a notice in writing.
It prescribes a period of notice. Sub-regulation (3) of Regulation 20, however, places an
embargo on an officer to leave or discontinue or resign from service without the prior
approval in writing of the competent authority and a notice or resignation given by such
an officer before or during the disciplinary proceedings shall not take effect unless it is
accepted by the competent authority.
Clause (ii) of Sub-regulation (3) of Regulation 20 must be considered from that aspect of
the matter. It raises a legal fiction. Such legal fiction has been raised only for the purpose
of "this Regulation" and for no other, which would mean Regulation 20(1). The final
orders which are required to be passed by the competent authority although indisputably
would be in relation to the disciplinary proceedings but evidently it is for the purpose of
accepting resignation or leaving or discontinuing of the service by the employee
concerned or grant of approval thereof. Clause (ii) of Sub-regulation (3) of Regulation 20
in effect and substance acts as a proviso to Clause (1) thereof.
15. Clause (iii) of Sub-regulation (3) of Regulation 20 is an independent provision. It
provides for continuation of the disciplinary proceedings. Such disciplinary proceedings
indisputably for the purpose of applicability of Sub-regulation (3) must have been
initiated in terms of the 1976 Regulations.
16. It is worth noticing the distinction between terminologies "proceeding pending" or
"proceeding initiated". Clause (ii) of Sub-regulation (3) of Regulation 20 defines what
would be pending, viz., for the purpose of attracting Clause (i) thereof.
A disciplinary proceeding is initiated in terms of 1976 Regulations, which are applicable
only in a case where a proceeding is initiated for the purpose of taking disciplinary action
against a delinquent officer for the purpose of imposing a punishment on him.
Disciplinary proceedings, thus, are initiated only in terms of the 1976 Regulations and
not in terms of the 1979 Regulations.
It is worth noticing that the 1979 Regulations would be attracted when no disciplinary
proceeding is possible to be initiated. The 1976 Regulations, however, on the other hand,
would be attracted when a disciplinary proceeding is initiated.
Both operate in separate fields. We do not see any nexus between Regulations 20(1) and
20(2) of the 1979 Regulations and the 1976 Regulations.
17. The 1976 Regulations provide for the mode and manner in which a disciplinary
proceeding is initiated. It expressly provides for service of charge sheet. Service of charge
sheet is a necessary ingredient for initiation of disciplinary proceeding. A preliminary
enquiry is not contemplated under the 1976 Regulations. If such an enquiry is held, the
same is only for the purpose of arriving at a satisfaction on the part of the disciplinary
authority to initiate a proceeding and not for any other purpose.
18. If it is found that a disciplinary proceeding can be and should be initiated, recourse to
the 1976 Regulations would have to be taken, if not, the 1979 Regulations may be
resorted to if the conditions precedent therefor are satisfied. It is only with a view to put
an embargo on the officer to leave his job, Clause (ii) of Sub-Regulation (3) of
Regulation 20 of the 1979 Regulations has been made. It's scope is limited.
19. We have noticed hereinbefore that each regulations operates in different fields. When
a proceeding is initiated for the purpose of taking any disciplinary action on the ground of
any misconduct which might have been committed by the officer concerned indisputably
the procedures laid down in the 1976 Regulations are required to be resorted to.
20. The 1979 Regulations would be attracted only for the purpose of termination of
service. Had the Intention of the regulation making authority been that the legal fiction
created under Clause (ii) of Sub-regulation (3) of Regulation 20 would cover both
Clauses (i) and (iii), the same should have been placed only after Clause (iii). In such an
event, Clause (ii) of Sub-regulation (3) of Regulation 20 should have been differently
worded.
Some non obstante clause would have been provided for making an exception to
@page-SC1836
the applicability of the 1976 Regulations when a legal fiction is created, although it is
required to be taken to the logical conclusion [See East End Dwellings Co. Ltd. v.
Finsbury Borough Council, [(1951) 2 All ER 587], but the same would not mean that the
effect thereof would be extended so as to transgress the scope and purport for which it is
created.
In UCO Bank and Anr. v. Rajinder Lal Capoor [(2007) 6 SCC 694] it has been held :
2007 AIR SC 3656
"We are not oblivious of the legal principle that a legal fiction must be given full effect
but it is equally well-settled that the scope and ambit of a legal fiction should be confined
to the object and purport for which the same has been created."
In Imagic Creative Pvt. Ltd. v. The Commissioner of Commercial Taxes and Ors. [JT
2008 (1) SC 496], this Court opined :2008 AIR SC 844
"26. We have noticed hereinbefore that a legal fiction is created by reason of the said
provision. Such a legal fiction, as is well known, should be applied only to the extent for
which it was enacted. It, although must be given its full effect but the same would not
mean that it should be applied beyond a point which was not contemplated by the
legislature or which would lead to an anomaly or absurdity.
27. The Court, while interpreting a statute, must bear in mind that the legislature was
supposed to know law and the legislation enacted is a reasonable one. The Court must
also bear in mind that where the application of a Parliamentary and a Legislative Act
comes up for consideration; endeavours shall be made to see that provisions of both the
acts are made applicable."
It is now a well-settled principle of interpretation of statutes that the court must give
effect to the purport and object of the Act. Rule of purposive construction should, subject
of course to the applicability of the other principles of interpretation, be made applicable
in a case of this nature.
In New India Assurance Company Ltd. v. Nusli Neville Wadia and Anr. [JT 2008 (1) SC
31], this Court held : 2008 AIR SCW 208
"50...........With a view to read the provisions of the Act in a proper and effective manner,
we are of the opinion that literal interpretation, if given, may give rise to an anomaly or
absurdity which must be avoided. So as to enable a superior court to interpret a statute in
a reasonable manner, the court must place itself in the chair of a reasonable legislator/
author. So done, the rules of purposive construction have to be resorted to which would
require the construction of the Act in such a manner so as to see that the object of the Act
fulfilled; which in turn would lead the beneficiary under the statutory scheme to fulfil its
constitutional obligations as held by the court inter alia in Ashoka Marketing Ltd. (supra).
AIR 1991 SC 855
51. Barak in his exhaustive work on 'Purposive Construction' explains various meanings
attributed to the term "purpose". It would be in the fitness of discussion to refer to
Purposive Construction in Barak's words: "Hart and Sachs also appear to treat "purpose"
as a subjective concept. I say "appear" because, although Hart and Sachs claim that the
interpreter should imagine himself or herself in the legislator's shoes, they introduce two
elements of objectivity : First, the interpreter should assume that the legislature is
composed of reasonable people seeking to achieve reasonable goals in a reasonable
manner; and second, the interpreter should accept the non-rebuttable presumption that
members of the legislative body sought to fulfil their constitutional duties in good faith.
This formulation allows the interpreter to inquire not into the subjective intent of the
author, but rather the intent the author would have had, had he or she acted reasonably."
(Aharon Barak, Purposive Interpretation in Law, (2007) at pg. 87)
52. In Bharat Petroleum Corpn. Ltd. v. Maddula Ratnavalli and Ors., (2007) 6 SCC 81,
this Court held :
"The Parliament moreover is presumed to have enacted a reasonable statute (see Breyer,
Stephen (2005): Active Liberty: Interpreting Our Democratic Constitution, Knopf
(Chapter on Statutory Interpretation - pg. 99 for "Reasonable Legislator Presumption" )."
53. The provisions of the Act and the Rules in this case, are, thus required to be construed
in the light of the action of the State as envisaged under Article 14 of the Constitution of
India. With a view to give effect thereto, the doctrine of purposive construction may have
to be taken recourse to. [See 2007 (7) Scale 753 : Oriental Insurance Co. Ltd. vs. Brij
Mohan and others.]" 2007 AIR SCW 3734
@page-SC1837
All the regulations must be given a harmonious interpretation. A Court of law should not
presume a 'cassus omissus' but if there is any, it shall not supply the same. If two or more
provisions of a statute appear to carry different meanings, a construction which would
give effect to all of them should be preferred. [See Gujarat Urja Vikash Nigam Ltd. v.
Essar Power Ltd., 2008 (3) SCALE 469]. 2008 AIR SCW 2169
21. In terms of the 1976 Regulations drawing up of a charge sheet by the disciplinary
authority is the first step for initiation of a disciplinary authority. Unless and until,
therefore, a charge sheet is drawn up, a disciplinary proceedings for the purpose of the
1976 Regulations cannot be initiated.
22. Drawing up of a charge sheet, therefore, is the condition precedent for initiation of a
disciplinary proceedings. We have noticed in paragraph 15 of our judgment that
ordinarily no disciplinary proceedings can be continued in absence of any rule after an
employee reaches his age of superannuation. A rule which would enable the disciplinary
authority to continue a disciplinary proceedings despite the officers reaching the age of
superannuation must be a statutory rule. A 'fortiori it must be a rule applicable to a
disciplinary proceedings.
23. There cannot be any doubt whatsoever that the employer may take resort to a
preliminary inquiry, but it will bear repetition to state that the same has a limited role to
play. But, in absence of the statutory rules operating in the field, resorting to a
preliminary enquiry would not by itself be enough to hold that a departmental proceeding
has been initiated.
24. Initiation of a disciplinary proceeding may lead to an evil or civil consequence. Thus,
in absence of clear words, the court must lean in favour of an interpretation which has
been applied by this Court in the main judgment.
In Workmen of M/s. Firestone Tyre and Rubber Co. of India (P) Ltd. v. Management and
Others [(1973) 1 SCC 813], this Court held that Section 11-A of the Industrial Disputes
Act must be interpreted in the light of the legal principles operating in the field. [See also
Haryana Urban Development Authority v. Om Pal (2007) 5 SCC 742]. AIR 1973 SC
1227
2007 AIR SCW 7303
25. For the reasons aforementioned, we are of the opinion that it is not a fit case where
we should exercise our jurisdiction.
26. This petition is dismissed. In the facts and circumstances of this case, however, there
shall be no order as to costs.
Petition dismissed.
AIR 2008 SUPREME COURT 1837 "National Insurance Co. Ltd. v. Geeta Bhat"
Civil Appeal No.2257 of 2008 (arising out of SLP (C) No. 18509 of 2004), D/- 31 -3
-2008.
National Insurance Co. Ltd. v. Geeta Bhat and Ors.
Motor Vehicles Act (59 of 1988), S.149 - MOTOR VEHICLES - INSURANCE -
REIMBURSEMENT - Liability of Insurer to reimburse owner - Not absolved on ground
of driving license found to be fake.
Notwithstanding the fact that the license possessed by the driver is a fake one, the insurer
would not be absolved from the liability to reimburse the owner of a vehicle in respect of
the amount awarded in favour of a third party by a Tribunal. An owner of the vehicle is
bound to make reasonable enquiry as to whether the person who is authorized to drive the
vehicle holds a licence or not. Such a licence not only must be an effective one but should
also be a valid one. Indisputably, in a case where the terms of the contract of insurance
are found to have been violated by the insured, the insurer may not be held to be liable
for reimbursing the insured. So far as a driving licence of a professional driver is
concerned, the owner of the vehicle, despite taking reasonable care, might have not been
able to find out as to whether the licence was a fake one or not. He is not expected to
verify the genuineness thereof from the Transport Offices. (Paras 6, 7, 8, 13)
2008 AIR SCW 682 : AIR 2008 SC 1073 (Ref.) 12
2008 AIR SCW 888 : 2008 (2) ALJ 736 12
2007 AIR SCW 2279 : AIR 2007 SC 1563 (Ref.) 11
@page-SC1838
2007 AIR SCW 3734 : AIR 2007 SC 1971 (Ref.) 12

2007 AIR SCW 4590 : AIR 2007 SC 2582 (Ref.) 12
2007 AIR SCW 6866 : AIR 2008 SC 329 (Ref.) 12
2003 AIR SCW 1695 : AIR 2003 SC 1292 (Rel. on) 9, 10
AIR 1987 SC 1690 (Ref.) 12
AIR 1977 SC 1248 (Ref.) 12
B.K. Satija, Dr. Sushil Balwada, for Appellant; K.S. Rana, for Respondents.
* F.A.O. No. 4413 of 2003, D/- 30-10-2003 (P and H).
Judgement
2. On 14-11-2000, Ishwar Dutt Bhat was travelling in a three wheeler. It met with an
accident having been hit by a truck bearing registration No.HR 38 9179. The said vehicle
was insured with the appellant.
Respondents, being the heirs and legal representatives of the said Shri Ishwar Dutt, filed a
claim petition. Appellant, in its written statement, raised a contention that the driving
licence possessed by the driver of the truck was a fake one.
3. In the proceedings before the Motor Vehicles Accident Claims Tribunal (the Tribunal),
it prayed for examination of the concerned clerk of the Motor Vehicles Department. The
said prayer was allowed. The concerned Clerk of the Licencing Authority, Alwar was
summoned. The said summons were served in the office of the Transport Authority. The
Transport Authority, however, did not depute any officer to produce the documents called
for.
Appellant, however, brought on records evidence to the effect that on an investigation
made by its own investigator, it was found that no such licence had been issued in the
name of Gopal Singh, the driver of the vehicle. In its report dated 20-3-2003, the said
investigator stated :
"Kindly, note that an application was moved by us to the LA Alwar to issue the
verification certificate for the DL No. as cited above, along with the photocopy of the DL
received by us.
But our opinion was returned back by the concerning officer because the above ref. DL
has no relevancy with the records LA Alwar.
However, the record register was shown to us which shows that DL No.20734/94 was
issued on dated 28-3-94.
Thus, it is confirmed that no such DL No.3956/Alwar/94 dated 27-3-94 is issued by LA
Alwar.
Conclusion : Verification certificate for the above said DL cannot be obtained from LA
Alwar.
This report is issued without prejudice."
4. The Tribunal, however, on the premise that the said fact was not proved, held :
"The insurance company in spite of availing several opportunities did not lead any
evidence in support of this assertion that Respondent No. 1 was not holding a valid and
effective driving licence. So the Insurance Company has failed to discharge the onus of
this issue. Accordingly this issue is decided against the Insurance Company."
The appeal preferred by the appellant before the High Court was dismissed summarily.
5. Mr. B.K. Satija, learned counsel appearing on behalf of the appellant, would submit
that the licence of the driver having been found to be a fake one, the High Court
committed a serious error in dismissing the appeal of the appellant summarily.
6. Liability of an insurer to reimburse the insured, as an owner of the vehicle not only
depends upon the terms and conditions laid down in the contract of insurance but also the
provisions of the Motor Vehicles Act, 1988 (the Act). The owner of vehicle is statutorily
obligated to obtain an insurance for the vehicle to cover the third party risk. A distinction
has to be borne in mind in regard to a claim made by the insured in respect of damage of
his vehicle or filed by the owner or any passenger of the vehicle as contradistinguished
from a claim made by a third party.
7. An owner of the vehicle is bound to make reasonable enquiry as to whether the person
who is authorized to drive the vehicle holds a licence or not. Such a licence not only must
be an effective one but should also be a valid one. It should be issued for driving a
category of vehicle as specified in the Motor Vehicles Act and/or Rules framed
thereunder.
8. Indisputably, in a case where the terms of the contract of insurance are found to have
been violated by the insured, the insurer may not be held to be liable for reimbursing the
insured. So far as a driving
@page-SC1839
licence of a professional driver is concerned, the owner of the vehicle, despite taking
reasonable care, might have not been able to find out as to whether the licence was a fake
one or not. He is not expected to verify the genuineness thereof from the Transport
Offices.
9
. The question in regard to the statutory obligation on the part of an owner of a vehicle to
obtain an insurance policy to cover a third party risk, vis-a-vis possession of a fake
licence by a driver who had been employed bona fide by the owner thereof had come up
for consideration before this Court United India Insurance Co. Ld. v. Lehru and Ors.
[(2003) 3 SCC 338]. 2003 AIR SCW 1695
10
. Lehru's case was noticed in great details by a Three Judge Bench of this Court in
National Insurance Co. Ltd. v. Swaran Singh [(2004) 3 SCC 297), holding : 2004
"92. It may be true as has been contended on behalf of the petitioner that a fake or forged
licence is as good as no licence but the question herein, as noticed hereinbefore, is
whether the insurer must prove that the owner was guilty of the wilful breach of the
conditions of the insurance policy or the contract of insurance. In Lehru case the matter
has been considered in some detail. We are in general agreement with the approach of the
Bench but we intend to point out that the observations made therein must be understood
to have been made in the light of the requirements of the law in terms whereof the insurer
is to establish wilful breach on the part of the insured and not for the purpose of its
disentitlement from raising any defence or for the owners to be absolved from any
liability whatsoever. We would be dealing in some detail with this aspect of the matter a
little later." 2003 AIR SCW 1695
11
. Swaran Singh had been followed later on in some cases by this Court. It was, however,
distinguished in National Insurance Co. Ltd. v. Laxmi Narain Dhut [(2007) 3 SCC 700]
in the following terms : 2007 AIR SCW 2279
"9. The primary stand of the insurance company is that the person driving the vehicle did
not have a valid driving licence. In Swaran Singh case the following situations were
noted :
(i) the driver had a licence but it was fake;
(ii) the driver had no licence at all;
(iii) the driver originally had a valid licence but it had expired as on the date of the
accident and had not been renewed;
(iv) the licence was for a class of vehicles other than that which was the insured vehicle;
(v) licence was a learner's licence.
Category (i) may cover two types of situations. First, the licence itself was fake and the
second is where originally that licence is fake but there has been a renewal subsequently
in accordance with law.
xxx xxx xxx
37. As noted above, the conceptual difference between third-party right and own damage
cases has to be kept in view. Initially, the burden is on the insurer to prove that the licence
was a fake one. Once it is established the natural consequences have to flow.
xxx xxx xxx
38. In view of the above analysis the following situations emerge :
1. The decision in Swaran Singh case 1 has no application to cases other than third-party
risks.
2. Where originally the licence was a fake one, renewal cannot cure the inherent fatality.
3. In case of third-party risks the insurer has to indemnify the amount, and if so advised,
to recover the same from the insured.
4. The concept of purposive interpretation has no application to cases relatable to Section
149 of the Act.
The High Courts/Commission shall now consider the matter afresh in the light of the
position in law as delineated above."
12
. The said principle was reiterated in The Oriental Insurance Co. Ltd. v. Meena Variyal
and Ors. [2007 (5) SCALE 269] stating : 2007 AIR SCW 2362
"It was argued by learned counsel for the appellant that since on the finding that the
deceased was himself driving the vehicle at the time of the accident, the accident arose
due to the negligence of the deceased himself and hence the insurer is not liable for the
compensation. Even if the case of the claimant that the car was driven by Mahmood
Hasan was true, then also, the claimant had to establish the negligence of the driver
before the insured could be asked AIR 1977 SC 1248
@page-SC1840
to indemnify the insured. The decision in Minu B. Mehta and Anr. v. Balkrishna
Ramchandra Nayan and Anr. [(1977) 2 SCR 886], of a three Judge Bench of this Court
was relied on in support.
xxx xxx xxx
Learned counsel for the respondent contended that there was no obligation on the
claimant to prove negligence on the part of the driver. Learned counsel relied on Gujarat
State Road Transport Corporation Ahmedabad v. Ramanbhal Prabhatbhai and Anr.
[(1987) 3 SCC 234] in support. In that decision, this Court clarified that the observations
in Minu B. Mehta's case (supra) are in the nature of obiter dicta. But, this Court only
proceeded to notice that departures had been made from the law of strict liability and the
Fatal Accidents Act by introduction of Chapter VIIA of the 1939 Act and the introduction
of Section 92A providing for compensation and the expansion of the provision as to who
could make a claim, noticing that the application under Section 110A of the Act had to be
made on behalf of or for the benefit of all the legal representatives of the deceased. This
Court has not stated that on a claim based on negligence there is no obligation to establish
negligence. This Court was dealing with no-fault liability and the departure made from
the Fatal Accidents Act and the theory of strict liability in the scheme of the Act of 1939
as amended. This Court did not have the occasion to construe a provision like Section
163A of the Act of 1988 providing for compensation without proof of negligence in
contradistinction to Section 166 of the Act. We may notice that Minu B. Mehta's case was
decided by three learned Judges and the Gujarat State Road Transport Corporation case
was decided only by two learned Judges. An obiter dictum of this Court may be binding
only on the High Courts in the absence of a direct pronouncement on that question
elsewhere by this Court. But as far as this Court is concerned, though not binding, it does
have clear persuasive authority." AIR 1987 SC 1690
[See also Oriental Insurance Co. Ltd. v. Brij Mohan and Ors. (2007) 7 SCALE 753 and
United India Insurance Co. Ltd. v. Davinder Singh [(2007) 8 SCC 698. 2007 AIR
SCW 3734
2007 AIR SCW 6866
In Smt. Yallawwa and Ors. v. National Insurance Co. Ltd. and Anr. [2007 (8) SCALE 77],
this Court opined : 2007 AIR SCW 4590
"The recent decisions of this Court are authorities for the proposition that the insurance
company would not be liable in cases where passengers of a vehicle are not third parties."
[See also Prem Kumar and Ors. v. Prahlad Dev and Ors. [2008 (1) SCALE 531] and
Oriental Insurance Co. Ltd. v. Prithvi Raj [2008 (1) SCALE 727]]. 2008 AIR SCW 682
2008 AIR SCW 888
Thus, whereas in a case where a third party has raised a claim, Swaran Singh (supra)
would apply, in a claim made by the owner of the vehicle or other passengers of a
vehicle, it would not.
13. We would, therefore, assume that the licence possessed by the 6th respondent, Gopal
Singh was a fake one. Only because the same was fake, the same, having regard to the
settled legal position, as noticed hereinbefore, would not absolve the insurer to reimburse
the owner of a vehicle in respect of the amount awarded in favour of a third party by the
Tribunal in exercise of its jurisdiction under Section 166 of the Motor Vehicles Act, 1988.
14. Nobody has appeared on behalf of the respondents despite service of notice.
15. We, therefore, are of the opinion that interest of justice shall be subserved if the
appellant is directed to pay the awarded amount in favour of respondent Nos. 1 to 5 with
liberty to recover the same from the owner and the driver of the vehicle, respondent
Nos.6 and 7 in an appropriate proceeding in accordance with law.
16. The appeal is dismissed with the aforementioned observations. No costs.
Appeal dismissed.
AIR 2008 SUPREME COURT 1840 "Govt. of Goa v. M/s. A. H. Jaffar and Sons"
(Prom : Bombay)*
Coram : 2 Dr. A. PASAYAT AND P. SATHASIVAM, JJ,
Govt. of Goa v. M/s. A. H. Jaffar and Sons and Anr. @page-SC1841
(A) Constitution of India, Art.136 - SPECIAL LEAVE APPEAL - SUPREME COURT -
TRIBUNALS - Grant of special leave by Supreme Court - Stay granted earlier, directed
to continue - Respondents were represented by counsel before Supreme Court - Pursuing
their remedies by respondents before Revisional Tribunal notwithstanding said stay order
- Not proper. (Para 6)
(B) Constitution of India, Art.226, Art.141 - WRITS - PRECEDENT - SUPREME
COURT - HIGH COURT - Powers of Court - Earlier case involving dispute of similar
nature between same parties had been decided by Supreme Court in particular way -
Attained finality - Directions given by Supreme Court shall operate - Taking a different
view and issuing directions by High Court - Not permissible. (Paras 6, 7)
1994 AIR SCW 4516 : AIR 1995 SC 333 (Ref.) 3
H.L. Agrawal, Sr. Adv., Bhavanishankar V. Gadnis, B. Sunita Rao, for Appellant; Anis
Suhrawardy, Ms. Shamama Anis, S. Mehdi Imam, Tabrez Ahmed, for Respondents.
* W. P. No. 41 of 1993, D/- 1-3-2000 (Bom) (At Goa).
Judgement
1. Dr. ARIJIT PASAYAT, J. :-Challenge in this appeal is to the judgment of a Division
Bench of the Bombay High Court at Goa in Writ Petition No.41/93 filed by the
respondents. The writ petition No.41/93 was filed seeking quashing of the orders dated
3rd January, 1991 passed by the Directorate of Mines and Labour and dated 22nd March,
1999 passed by the Secretary, Mines, Government of Goa. Further prayer was for
direction for grant of respondent's application for mining lease over an area of 34.68
hectares situated at two different villages in Ponda Taluka after executing the necessary
lease deeds in favour of the respondents.
2. After referring to the chequered history of the litigation the High Court ultimately
directed as follows :
"18. Considering the fact that the matter is pending over 16 years, as the Respondents
were without addressing themselves to the main issue involved in the matter, virtually
compelling the Petitioner to approach the Court every now and then to make the
Respondents realize about the main issue involved in the matter, and considering all the
observations made hereinabove, we are compelled to direct the Respondents to dispose of
the application of the Petitioner on merits within the period of six weeks from today. The
Respondents should be careful in disposing the matter bearing in mind the observations
made therein and should pass a reasoned Order addressing themselves to the main issue
involved in the matter after considering all the materials placed on record. In the facts and
circumstances of the case, we are constrained to impose exemplary costs of Rs. 10,000/-
to be paid by the Respondents to the Petitioner. The costs to be paid within six weeks
from today. The Respondents shall furnish to the Additional Registrar of this Court a
copy of the Order to be passed in accordance with the directions issued herein within two
weeks from the date of passing such Order. Rule made absolute in above terms."
3
. Though various points were urged in support of the appeal, Mr. H.L. Aggarwal, learned
senior counsel, submitted that a dispute of similar nature involving the parties was before
this Court and issues involved were identical in State of Goa and Ors. v. M/s. A.H. Jaffar
and Sons (AIR 1995 SC 333). It was, inter alia, held as under: 1994 AIR SCW 4516
"3. The appeal has been argued at length. Sri Siraj Sait has attempted to support the
judgment with industry and precision. But it does not appear necessary to decide whether
the finding recorded by the High Court that the order of Commissioner being
administrative in nature it could be reviewed by the State Government nor it is necessary
to decide whether the Minister could exercise any power where the grant of lease is
regulated by the Statute as in our opinion the remedy of revision having been provided by
Sec.30 of the Act, the proper course for the respondent was to approach the Central
Government and not the High Court. Learned counsel for the respondent expressed
apprehension that the period for limitation provided in Rule 54 of the Minerals
Concessions Rules, 1960 having expired, the revision might not be entertained. The
proviso to the rule, however, empowers the revising authority to condone delay if it is
satisfied that the revision could not be presented for sufficient cause within time. Since
the respondent was pursuing its remedy in High Court bona fide, it would be sufficient
cause to condone the delay and we trust the revision if preferred within four weeks from
today shall not be dismissed as being barred by time."
4. Therefore, it is submitted that when
@page-SC1842
the matter had attained finality between the parties, and the High Court could not have
given the impugned directions.
5. Learned counsel for the respondents on the other hand submitted that much prior to the
hearing of the matter by this Court, order dated 30th June, 2000 was served on the
respondents on 3rd July, 2000, and they had moved the Revisional Tribunal of the Central
Government in terms of Section 30 of the Mines and Minerals (Development and
Regulation) Act, 1957 (in short the 'Act') read with Rule 54 of the Mineral Concession
Rules, 1960 (in short the 'Rules'). The Revisional Tribunal of the Central Government by
its final order dated 13-5-2002 has already decided the matter in favour of the
respondents.
6. It is to be noted that notice was issued in the SLP on 18-8-2000 and stay was granted.
Subsequently, leave was granted on 30-3-2001 and the stay was directed to continue.
Much before that date the respondents were represented by counsel before this Court. It is
surprising that notwithstanding stay order passed by this Court, the respondents pursued
their remedies before the Revisional Tribunal. That certainly was not proper and
desirable. To add to the vulnerability it needs to be noted that the writ petition though
filed in 1993 was disposed of on 1st March, 2000, and by that time the decision of this
Court in the earlier case between the same parties had been decided in a particular way.
Unfortunately, the High Court did not notice that also. It needs no reiteration that once
the decision is rendered intra parties and attains finality, a different view cannot be taken,
more so, when finality is attached by this Court's order.
7. In the circumstances, we set aside the impugned order of the High Court and directions
contained in paragraph 3 of the earlier decision shall operate so far as this case is
concerned. If any decision has been taken by the State Government or the Central
Government in the present dispute, the same shall be of no consequence because of the
stay order of this Court, while issuing notice on 18-8-2000 and order granting leave on
30th March, 2001.
8. The appeal is allowed to the aforesaid extent with no order as to costs.
Order accordingly.
AIR 2008 SUPREME COURT 1842 "Golla Yelugu Govindu v. State of A. P."
(From : Andhra Pradesh)*
-2008.
Golla Yelugu Govindu v. State of A. P.
(A) Evidence Act (1 of 1872), S.3 - EVIDENCE - WITNESS - Child witness - Testimony
of - Acceptance.
The decision on the question whether the child witness has sufficient intelligence
primarily rests with the trial Judge who notices his manners, his apparent possession or
lack of intelligence, and said Judge may resort to any examination which will tend to
disclose his capacity and intelligence as well as his understanding of the obligation of an
oath. The decision of the trial Court may, however, be disturbed by the higher Court if
from what is preserved in the records, it is clear his conclusion was erroneous. This
precaution is necessary because child witnesses are amenable to tutoring and often live in
a world of make beliefs. Though it is an established principle that child witnesses are
dangerous witnesses as they are pliable and liable to be influenced easily, shaped and
moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the
Court comes to the conclusion that there is an impress of truth in it, there is no obstacle in
the way of accepting the evidence of a child witness. (Para 9)
(B) Penal Code (45 of 1860), S.304, Part I - CULPABLE HOMICIDE - SENTENCE
IMPOSITION - WITNESS - Culpable homicide not amounting to murder - Accused
alleged to have asked his wife, deceased to get money from her parents - Demand not
complied by parents - In night at about 2 A.M. there was exchange of hot words and
quarrel between accused and deceased in presence of their children - Accused suddenly
hacked deceased on her back with sickle and deceased fell down - Accused once again
hacked on neck and left ear of deceased causing severe bleeding injuries - Evidence of
eye witnesses, children of deceased, corroborated by other prosecution witnesses -
Accused, held, liable to be convicted u/S.304, Part I - Sentence of 10 years imposed.
(Para 15)
@page-SC1843

(1997) 5 SCC 341 (Ref.) 8
(1895) 159 US 523 : 40 Law Ed 244 7
Uma Datta, for Appellant; Ms. D. Bharathi Reddy, for Respondent.
* Cri. Appeal No. 1313 of 2004, D/- 7-8-2006 (A.P.)
Judgement
2. Challenge in this appeal is to the order passed by a Division Bench of the Andhra
Pradesh High Court dismissing the appeal filed by the appellant questioning correctness
of his conviction for offence punishable under Section 302 of the Indian Penal Code,
1860 (in short 'IPC') and sentence of imprisonment for life and fine as imposed by
learned IVth Additional Sessions Judge, (F.T.C.), Anantapur.
2A. Background facts in a nutshell are as follows :
The marriage between Dhanalakshmi (hereinafter referred to as 'deceased') and the
accused took place 14 years prior to the date of incident. During the wedlock, they were
blessed with three children, namely, Golla Yelugu Adilakshmi (PW2), Golla Yelugu
Anjaneyulu (PW3) and Gollal Yelugu Venkatesu (LW7). At the time of marriage, the
accused was doing cultivation. After marriage the deceased and the accused lived happily
for some years. Due to addiction to vices, he started ill-treating his wife, demanding her
to get money from her parents. About six months prior to the occurrence, the accused
beat and caused fracture to the hand of the deceased and sent her along with her children
to her parents' house. He again took them back by promising to look after them well and
kept his family at Pamidi. Ten days prior to the occurrence, the accused sold his
autorickshaw and cleared his debts and asked his wife to get money from her parents to
purchase another autorickshaw. But the parents of the deceased did not comply with the
said demand. On 20-6-2002 at about 2 A.M. while the deceased was in the house, there
was exchange of hot words and quarrel between the accused and deceased. This
happened in the presence of their children. Suddenly accused hacked the deceased on her
back with a sickle and the deceased fell down and the accused once again hacked on the
neck and left ear of the deceased causing severe bleeding injuries. Accused went to the
house of LW3 and confessed the offence before him. LW3 went and informed the same to
the father of the deceased, PW1. PW1 lodged a complaint before the police and on its
basis a case in Cr.No.35/2002 was registered for the offence punishable under Section
302 IPC by PW11, who conducted inquest over the dead body of the deceased in the
presence of PWs. 5, 8 and LW16: examined some witnesses and recorded their
statements; seized the clothes and blood stained mat covered under MOs. 1 to 4; prepared
rough sketch under Ex.P.7, forwarded the material objects to the Forensic Science
Laboratory, Hyderabad for analysis through the Judicial First Class Magistrate, Gooty
and arrested the accused on 25-6-2002, and at his instance MOs 5-sickle and 6-bag were
recovered. PW6, the Medical Officer, who conducted autopsy over the dead body of the
deceased opined that the deceased would appear to have died due to haemorrhage and
shock due to cut laceration over the throat involving the major blood vessel. After
completion of the investigation, charge sheet was filed.
3. In order to establish the accusations the prosecution examined 11 witnesses and
marked several exhibits and MOs. The accused did not adduce any oral or documentary
evidence. He however pleaded innocence.
4. After analyzing the evidence of eyewitnesses PWs2 and 3, and finding that they are
corroborated by the evidence of PWs 1 and 7, the appellant was found guilty.
5. In appeal, the appellant took the plea that PWs. 2 and 3 should not have been pleaded
as they are of tender age and were child witnesses. The High Court found that PWs. 2 and
3 were children of the deceased and the accused and there was no reason as to why they
would falsely implicate their father. The High Court also discarded the plea that they
were under the influence of PW1, their maternal grandfather. As noted above, the appeal
was dismissed.
6. In support of the appeal, learned counsel for the appellant submitted that reliance
should be placed on the evidence of PWs 2and3 and in any event offence under Section
302 IPC is not made out.
7
. Indian Evidence Act, 1872 (in short the 'Evidence Act') does not prescribe any 2001
AIR SCW 81
@page-SC1844
particular age as a determinative factor to treat a witness to be a competent one. On the
contrary, Section 118 of the Evidence Act envisages that all persons shall be competent to
testify, unless the Court considers that they are prevented from understanding the
questions put to them or from giving rational answers to these questions, because of
tender years, extreme old age, disease - whether of mind, or any other cause of the same
kind. A child of tender age can be allowed to testify if he has intellectual capacity to
understand questions and give rational answers thereto. This position was concisely
stated by Brewer, J. in Wheeler v. United States (159 U.S. 523). The evidence of a child
witness is not required to be rejected per se; but the Court as a rule of prudence considers
such evidence with close scrutiny and only on being convinced about the quality thereof
and reliability can record conviction, based thereon. (See Surya Narayana v. State of
Karnataka (2001 (1) Supreme 1).
8. In Dattu Ramrao Sakhare v. State of Maharashtra (1997 (5) SCC 341) it was held as
follows :
"A child witness if found competent to depose to the facts and reliable one such evidence
could be the basis of conviction. In other words even in the absence of oath the evidence
of a child witness can be considered under Section 118 of the Evidence Act provided that
such witness is able to understand the answers thereof. The evidence of a child witness
and credibility thereof would depend upon the circumstances of each case. The only
precaution which the Court should bear in mind while assessing the evidence of a child
witness is that the witness must be a reliable one and his/her demeanour must be like any
other competent witness and there is no likelihood of being tutored".
9. The decision on the question whether the child witness has sufficient intelligence
primarily rests with the trial Judge who notices his manners, his apparent possession or
lack of intelligence, and said Judge may resort to any examination which will tend to
disclose his capacity and intelligence as well as his understanding of the obligation of an
oath. The decision of the trial court may, however, be disturbed by the higher Court if
from what is preserved in the records, it is clear his conclusion was erroneous. This
precaution is necessary because child witnesses are amenable to tutoring and often live in
a world of make beliefs. Though it is an established principle that child witnesses are
dangerous witnesses as they are pliable and liable to be influenced easily, shaped and
moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the
Court comes to the conclusion that there is an impress of truth in it, there is no obstacle in
the way of accepting the evidence of a child witness.
10. It is submitted that Section 302 IPC has no application as the assault was made during
the course of sudden quarrel and Exception 4 of Section 300 IPC applies.
11. The residuary plea relates to the applicability of Exception 4 of Section 300 IPC, as it
is contended that the incident took place in course of a sudden quarrel.
12. For bringing in its operation it has to be established that the act was committed
without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel
without the offender having taken undue advantage and not having acted in a cruel or
unusual manner.
13. The Fourth Exception of Section 300 IPC covers acts done in a sudden fight. The said
exception deals with a case of prosecution not covered by the first exception, after which
its place would have been more appropriate. The exception is founded upon the same
principle, for in both there is absence of premeditation. But, while in the case of
Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only
that heat of passion which clouds men's sober reason and urges them to deeds which they
would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the
injury done is not the direct consequence of that provocation. In fact Exception 4 deals
with cases in which notwithstanding that a blow may have been struck, or some
provocation given in the origin of the dispute or in whatever way the quarrel may have
originated, yet the subsequent conduct of both parties puts them in respect of guilt upon
equal footing. A 'sudden fight' implies mutual provocation and blows on each side. The
homicide committed is then clearly not traceable to unilateral provocation, nor in such
cases could the whole blame be placed on one side. For if it were so, the Exception more
appropriately applicable would be Exception 1. There is no previous deliberation or
determination to fight. A fight suddenly takes
@page-SC1845
place, for which both parties are more or less to be blamed. It may be that one of them
starts it, but if the other had not aggravated it by his own conduct it would not have taken
the serious turn it did. There is then mutual provocation and aggravation, and it is
difficult to apportion the share of blame which attaches to each fighter.
The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b)
in a sudden fight; (c) without the offender having taken undue advantage or acted in a
cruel or unusual manner; and (d) the fight must have been with the person killed. To bring
a case within Exception 4 all the ingredients mentioned in it must be found. It is to be
noted that the 'fight' occurring in Exception 4 to Section 300 IPC is not defined in the
IPC. It takes two to make a fight. Heat of passion requires that there must be no time for
the passions to cool down and in this case, the parties have worked themselves into a fury
on account of the verbal altercation in the beginning. A fight is a combat between two and
more persons whether with or without weapons. It is not possible to enunciate any
general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and
whether a quarrel is sudden or not must necessarily depend upon the proved facts of each
case. For the application of Exception 4, it is not sufficient to show that there was a
sudden quarrel and there was no premeditation. It must further be shown that the offender
has not taken undue advantage or acted in cruel or unusual manner. The expression
'undue advantage' as used in the provision means 'unfair advantage'.
14
. Where the offender takes undue advantage or has acted in a cruel or unusual manner, the
benefit of Exception 4 cannot be given to him. If the weapon used or the manner of attack
by the assailant is out of all proportion, that circumstance must be taken into
consideration to decide whether undue advantage has been taken. In Kikar Singh v. State
of Rajasthan (AIR 1993 SC 2426) it was held that if the accused used deadly weapons
against the unarmed man and struck a blow on the head it must be held that giving the
blows with the knowledge that they were likely to cause death, he had taken undue
advantage. 1993 AIR SCW 2734
15. Considering the factual scenario in the background of the position in law as
highlighted above, the inevitable conclusion is that the appropriate conviction would be
under Section 304 Part I IPC. Custodial sentence of 10 years would meet the ends of
justice. Appeal is allowed to that extent.
Order accordingly.
AIR 2008 SUPREME COURT 1845 "EMM Tex Synthetics, M/s. v. Om Parkash"
(From : Himachal Pradesh)
-2008.
M/s. EMM Tex Synthetics v. Om Parkash and Anr.
Workmen's Compensation Act (8 of 1923), S.30 - WORKMEN'S COMPENSATION -
APPEAL - Appeal - Pre-deposit of amount payable under order appealed - Form of
certificate of deposit not specified - Production of proof of deposit of compensation
would be substantial compliance of S.30.
Decision of H. P. High Court, Reversed.
The appellant had deposited the amount payable under order which was appealed by way
of a Demand Draft duly received by the office of the Commissioner. The Demand Draft
was deposited along with a covering letter and the receipt was given on its copy.
Therefore in the absence of any specified form of certificate indicated in the Act or the
Rules, it cannot be said that the certificate produced by the appellant was not in
compliance with S. 30.
Decision of H. P. High Court, Reversed.
(Paras 4, 5)
Ravi Bakshi, Yash Pal Dhingra, for Appellant.

Judgement
JUDGMENT :- Leave granted.
2. In spite of due service on the respondents, no one has entered appearance. At the time
of hearing of this appeal also, no one has appeared before us to contest the appeal.
3. This appeal is directed against the Judgment and Order dated 5th of December, 2006
passed by a learned Judge (Chief Justice) of the High Court of Himachal Pradesh at
Simla in CMP (M) No. 821 of 2006, by which the High Court had dismissed the appeal
on a technical ground that the appeal was not maintainable under Section
@page-SC1846
30 (1)(a) of the Workmen's Compensation Act, 1923 (in short the "Act") as the
memorandum of appeal was not accompanied by a Certificate issued by the
Commissioner, Workmen's Compensation, to show that the appellant had deposited with
him the amount payable under the order which was appealed.
4. We have heard the learned counsel for the appellant and examined the relevant
provisions made under Section 30 of the Act and other materials on record. After a
careful examination, we are of the view that in the absence of any specified form of
Certificate indicated in the Act or the Rules, it cannot be said that the Certificate
produced by the appellant was not in compliance with Section 30 of the Act. It is an
admitted fact that the appellant had deposited the awarded amount by way of a Demand
Draft duly received by the office of the Commissioner. The Demand Draft was deposited
along with a covering letter and the receipt was given on its copy. The High Court had
refused to accept it as a Certificate under the Act and therefore, dismissed the appeal.
5. In our view, in the absence of any specified form of Certificate, a proof of deposit of
compensation would be a substantial compliance of Section 30 of the Act. Therefore, the
appellant could not be thrown out on such a technical ground.
6. That being the position, we set aside the Judgment of the High Court and request the
High Court to decide the appeal filed under Section 30 of the Act in accordance with law
and after giving hearing to the parties, dispose of the same after passing a reasoned order
within six months from the date of supply of a copy of this order.
7. For the reasons aforesaid, the impugned order is set aside. The appeal is allowed to the
extent indicated above. There will be no order as to costs.
Order accordingly.
AIR 2008 SUPREME COURT 1846 "Pravin v. State of M. P."
-2008.
Pravin v. State of M. P.
(A) Penal Code (45 of 1860), S.395, S.397 - DACOITY - EVIDENCE - Broad day light
dacoity in Bank - Identification of one accused by Bank Manager - Corroborated by other
witness, bank official - Would be acceptable in peculiar facts in spite of so-called defects
shown in holding identification - Alleged delay in holding T.I. Parade was not of any
significance - Sum of Rs. 40,000/-, Bank Slips and other Bank documents recovered from
accused - Presumption u/S.114 of Evidence Act can be raised - Further recovery of bag of
Bank official containing his private documents from accused was extremely significant -
In facts and circumstances finding that accused was guilty of offence of dacoity - Not
liable to be interfered with.
Evidence Act (1 of 1872), S.114. (Paras 14, 23, 26, 27, 28)
(B) Arms Act (54 of 1959), S.25, S.27 - FIRE ARMS - Unlicensed pistol - Used in
contravention of provisions of S.5 of the Act - Conviction of accused u/S.25, u/S.27 - No
(2004) 13 SCC 150 (Ref.) 23
1998 AIR SCW 1103 : AIR 1998 SC 1251 : 1998 Cri LJ 1638 (Foll.) 26
AIR 1984 SC 207 : 1983 Cri LJ 1923 (Ref.) 25
AIR 1972 SC 2478 : 1972 Cri LJ 1704 (Foll.) 24
Ms. Madhurima Tatia and Indra Makwana, for Appellant; Govind Goel, C.D. Singh and
Ram Naresh Yadav, for Respondent.
* Cri. A. No. 113of2006, D/- 1-12-2006 (MP) (Indore Bench).
Judgement
V. S. SIRPURKAR, J. :- Leave granted.
2. Appellant herein one Praveen, son of Ramchander Sharma was convicted by the
Additional Sessions Judge for committing the offences under Section 395 read with
Sections 397 and 450 of the Indian Penal Code (for short "IPC"). Besides these offences,
he was also found guilty for committing offence under Sections 25(1-B)(a) and Section
27 of the Arms Act. Along with the present appellant one other accused Harish was also
convicted and sentenced for committing the same offences. Both of them filed separate
appeals before the High Court. However, both the appeals were dismissed by a common
judgment passed by the High Court. While Pravin, the present appellant
@page-SC1847
(original Accused No.1) has come up before us by way of the present appeal, the other
accused has not chosen to challenge his conviction. We, therefore, are left with the case
of Accused No. 1 alone. A few facts would be necessary.
3. A broad day-light dacoity took place on 8-9-2003 on Dena Bank situated at Bapat
Chauraha, Indore. According to the complaint lodged by Ashok Kumar Dubey (PW-1),
Branch Manager, Dena Bank, at about 12.20 in the noon, two unknown persons had
entered in his cabin and one of them took out revolver from his shirt and pointed towards
him, pushed him out of the cabin and took him to the hall. The other associates of the said
persons, who were present there, asked the other members of the staff and about 30-40
customers to stand in the hall with their hands raised upwards by pointing pistol towards
them. One of the associates stodd at the gate of the bank with pistol while other
associates covered the other persbhs in the hall. The fifth associate, who appeared to be
their leader, had come inside the bank and asked for the keys of the strong room. He took
one Mahender Chauhan towards safe by pointing pistol at him while the other persons
were asked to sit on the floor of the hall. After about 10-15 minutes, two accused persons
had come out with the bags filled with notes from the safe. They had snatched one bag
from Sh. S. M. Dholey, staff member of the bank and stuffed it with the bundles of notes
from cash counter. The accused then directed all the persons present there to move to the
gallery of toilet and shut them in a room. They threatened that if anyone used phone, then
they would shoot such person. Before that they had collected the mobile phones of all the
customers which they threw outside the bank. The mobile phones of two of the customers
were, however, not found. The accused persons put lock on the gate of the bank and ran
away. One customer, namely, Ashish Goyal broke the window panes towards the road and
attracted the attention of the people. He only had given information to the Police Control
Room on Telephone No. 100. The total amount looted was about Rs.13,95,720/-.
4. After committing the dacoity, the accused persons ran away towards Meghdoot Garden
in a Commander Jeep of grey or light blue colour and one Hero Honda Motorcycle. The
black bag of Shri S. M. Dholey, which was taken away by the dacoits was also described
to be made of parachute cloth containing three bank cheques of Rs. 10,000/-each of
Tehsildar Nazul, photocopy of valuation report of Plot of Siddhipuram, auction forms of
Tehsildar Nazul, statement of 2003 of Navlakha Branch Bank, driving licence of Shri
Dholey and 10-11 ball pens. There were number of persons who saw this incident,
namely, Surendra Kumar, Mahendra Chauhan, Ajay Tandon, S. M. Dholey, Deepak, M.L.
Manharey, Sangeeta Silawat of bank staff and Ashish Goyal, Prahlad Gotwal, Ujjwal,
Rahul, Sushil Verma, Hargovind Singh, etc., who were the visitors to the bank. All of
them claimed that they would be able to identify the dacoits. The descriptions of the
accused persons were also given. The person who had entered the cabin of the Branch
Manager and pushed him was about 25-30 years, height about 5 feet 6 inches. He had
wheatish colour complexion and had unshaven face with small mustaches with Z-black
hairs. He was wearing ordinary black goggles, cream colour pant and shirt. The second
accused who was also of the same average height, aged about 25 years, but was a clean
shaved person. The description of the other dacoits were also given. The person who
appeared to be the leader of the accused persons was about 26 years old. His description
was also given. It was claimed that most of the looted bundles of the notes were bearing
seal of S.S.C. and slips of Dena Bank. It was claimed that the accused persons could be
identified on being seen.
5. The report given by Ashok Kumar Dubey was recorded by SHO Baldevsingh Thakur
(PW-52). The offence was registered under Sections 395 and 397 IPC and the
investigation started. Observation Memorandum was drawn. During the investigation, the
Branch Manager Shri Ashok Kumar Dubey (PW-1)produced the details of the looted
notes, they were, 13 notes of Rs.1,000/- denomination, 264 notes of Rs.500/-
denomination, 5108 notes of Rs.100/- denomination, 3045 notes of Rs.50/- denomination,
1347 notes of Rs.20/ - denomination and 56083 notes of Rs. 10/-denomination. The
statements of witnesses were recorded.
6. The present accused came to be arrested on 26-9-2003, i.e., barely within 18 days of
the incident. Accused Harish was arrested on 8-10-2003. On the basis of the
@page-SC1848
discovery statement made by accused Praveen, the registration documents of the
Motorcycle, copy of the Dainik Bhaskar Newspaper which had published the news
regarding the dacoity, one letter regarding the sale of Jeep No.MP-09-N-5946 by Atul
Parmar to Praveen Sharma and another letter regarding sale of jeep and 18 other items
were seized. Similarly as per Seizure Memo (Exhibit P-18) one country made Katta of.
12 bore, 4 cartridges, 40 bundles of Rs.10/-denomination notes, totalling Rs.40,000/-
which were bearing the slips of Dena Bank and seal of S.A.C were also seized. One Slaty
Colour Mahendra Jeep without number was also seized from the accused. Similarly 280
slips of Dena Bank and other banks used on bundles of notes, 38 torn slips of S.M.S, 144
full slips of S.M.S., 159 plastic paper for tying bundles, 58 rubber rings, 160 thin rope of
jute, 34 ordinary jute rope, 2 number plate of jeep MP-09-N-5945 and one broken lock
were also recovered from the accused. The Motorcycle of Hero Honda make bearing
registration No.MP-04-AN-7916 was also seized. One black Rexene bag containing
driving licence of Shri S. M. Dholey in a polythene bag, report of bank loan of Navlakha
Dena Bank of Shri Dholey were recovered from accused Harish Kumar Singh.
7. A Test Identification Parade was held in respect of both the accused persons wherein
they were got identified by Prosecution Witnesses, they being Daman Singh (PW-5),
Surendra Kumar (PW-4), Mahendra Chauhan (PW-10) and Ashok Kumar Dubey (PW-1).
According to the prosecution Darshan Singh (PW-5) identified both the accused persons
correctly. Ashok Kumar Dubey (PW-1) also had identified both the accused persons
correctly. Mahendra Chauhan (PW-10) and Surendra Kumar (PW-4) had identified
accused Harish correctly but they had not identified accused Praveen correctly. The
identification proceedings about bag were also conducted and the bag was got test
identified. Ultimately, on the basis of the investigation, the charge-sheet came to be filed
for committing offences under Sections 395, 397, 450 IPC and Sections 25 and 27 of
Arms Act. The charge-sheet also recorded that the other accused persons, namely, Anand,
son of Mohanlal, Shashikant and two other accused persons were absconding and the
investigation was continuing against them. One Shashikant, son of Dadnath was also
involved, however, during the investigation it came to be reported that he had died in a
police encounter. Charges were framed against the accused persons. They denied their
involvement in the commission of crime and claimed false implication. Defence of
Harish was that on the day of incident he was present in the Block Head Office of
Faizabad and on that day he had purchased a truck for which documents have been
prepared and that the police had falsely implicated him. He also pointed out that the
police had shown his photographs to the witnesses in the Test Identification Parade. The
defence of accused Praveen was that since the police could not apprehend the actual
accused persons, he was being falsely implicated in the case.
8. As many as about 55 witnesses came to be examined, including the eye-witnesses and
the bank staff witnesses. The Sessions Judge convicted the two accused persons. On the
appeal having failed before the High Court, the present appellant is before us by way of
this appeal.
9. Learned counsel appearing on behalf of the appellant very vehemently contended
before us that the identification parade in respect of this accused was a farce as the
photographs of both the accused persons, namely, Praveen and Harish were already
shown to the witnesses which was clear from the evidence before the court. It was further
urged that if the identification itself failed, then there would hardly be any evidence left
against the accused. It is also urged that the discoveries of the so-called stolen property
was also farcical and insignificant. Learned counsel also urged that the Investigating
Agency somehow wanted to do the face saving on account of their failure to catch the
real culprits in spite of the fact that the dacoity had taken place in broad day-light.
Ultimately, even the convictions under Sections 25 and 27 of the Arms Act came to be
assailed on the ground that such conviction could not have been ordered in law. Lastly, by
way of an alternative contention, learned counsel pointed out that the sentence was too
harsh as compared to the offence committed.
10. As against this, the learned counsel appearing on behalf of the prosecution supported
the judgments of the courts below and pointed out that both the courts below had, on the
basis of the evidence led before
@page-SC1849
them, come to the conclusion that this appellant was identified. It was pointed out that the
witnesses were the bank officers and they were with the dacoits for substantial time. The
witnesses, therefore, had the opportunity to watch the accused persons closely and as
such the identification of these accused persons in the court, at the instance of the eye-
witnesses, was also no less significant. It is then pointed out that the discoveries made
included the bag of witness Shri S. M. Dholey (PW-6) along with the documents therein
and as such it was clear that the said discovery established an unassailable nexus of the
accused with the crime. It was further pointed out that even the vehicles which were used
for committing the crime were seized and identified by the witnesses. Lastly it was
contended that since both the courts below had concurrently found the accused guilty on
the basis of appreciation of evidence and since no significant error was pointed out, this
Court should not interfere in its jurisdiction under Article 136 of the Constitution.
11. It cannot be disputed that the bank was looted in the broad day-light by the persons
who were or could be termed to be daredevils. When we see the evidence of Ashok
Kumar Dubey (PW-1), Branch Manager of the Dena Bank along with the evidence of
Surendra Kumar (PW-4), Daman Singh (PW-5), S. M. Dholey (PW-6) and Mahendra
Chauhan (PW-10), all of whom were the bank employees as also Deepak Kumar Kharte
(PW7) and San tosh (PW-11) who were the bank customers as also Ajay Kumar Tandon
(PW-21), Ashish Goyal (PW-22), Deepak Sompurkar (PW-23), Suresh (PW-24), Nathulal
(PW-25), Sangeeta Silavat (PW-27), Govind Singh Dodiya (PW-29), Shefali (PW-30),
Prahlad Kumar Gothwal (PW-44), the common thing in their evidence is that on that day
about 5 persons entered the bank and committed dacoity. They were armed with weapons
and collected all the persons in the hall, handed out threats and calmly collected keys
from the bank staff and took away currency notes from the bank chest. The High Court
has recorded a finding that nothing significant has come out in respect of this aspect of
the dacoity.
12. The evidence of Ashok Kumar Dubey (PW-1) would be the most important as he had
graphically described as to how the dacoity took place and how he was taken out by the
two persons. The Trial as well as the Appellate Courts have rightly relied upon this
witness and accepted his evidence. This witness had further stated that it was almost
within 10 minutes after the dacoits left the bank that the police reached there. Learned
counsel had commented that this witness, though had taken part in the identification
parade, did not in his substantive evidence, refer to that fact and, therefore, his
identification, in the court, for the first time, remained without any corroboration. There
is no significant cross-examination of this witness at all as regards the evidence and more
particularly his identification of the accused in the court. He had very specifically
identified the appellant herein. Very significantly no question has been put to this witness.
It is not suggested as if the accused had covered their faces. There is no challenge also to
the story that the dacoits had pointed revolver at him. In the absence of any substantial
cross-examination, we do not think that the Trial Court and the High Court were in error
in accepting the evidence of this witness particularly about his identification. The witness
had full opportunity in broad day-light to be with the accused and the incident itself was
so significant that it would undoubtedly make a dent on his memory. He was after-all an
educated bank officer holding a responsible position of a Branch Manager. Since his
evidence about knowing the accused-appellant was not at all challenged, the courts below
were right in accepting the evidence.
13. Surendra Kumar (PW-4), has corroborated the evidence of Ashok Kumar Dubey (PW-
1) and there is nothing contradictory in his evidence. Surendra Kumar is also a bank
employee working in the same branch. He has also supported the version that the dacoits
having snatched the bag from a lady customer as also the bag of S. M. Dholey (PW-6).
This witness was called in the jail for identification and he claimed that he had correctly
identified the accused persons who were present in the court. This witness had also
reiterated, in his cross-examination, about the language which was being spoken by the
dacoits. He specifically denied that the accused persons, who were present in the court,
were shown to him earlier. His following statement was taken as an exception by the
Defence counsel:
"Similar photographs were shown to other persons which were shown to me."
From this the learned counsel presumed
@page-SC1850
that the photographs of the appellant were shown to this witness. We do not think such an
inference can be drawn from the above mentioned sentence. This witness, in the very
next paragraph, had, however, clarified that those persons whom he had identified were
not the persons who were apprehended by the police. He has specifically stated about the
identification parade where cashier Chauhan, C.S. Batham, Shri Ashok Dubey and other
persons were called. He, however, under the stress of cross-examination admitted that the
accused persons were shown to him in the police station. Since this witness had not
identified the appellant Pravin, though the High Court relied on him, we do not attach any
importance to the evidence of this witness.
14. Daman Singh (PW-5) who was also the bank employee, graphically described the
whole dacoity. He also claimed that he had correctly identified the appellant and the other
accused Harish. Some insignificant omissions have been brought out in his evidence
which do not damage the evidentiary value of his evidence at all. He also reiterated in his
cross-examination that he was not shown any photographs of the accused nor was any
accused shown to him in the Police Station. As regards the identification parade he was
specifically cross-examined and he refuted all the suggestions. Learned counsel, however,
relied on one sentence to the effect that :
"Yeh Sahi hai ki jeep mein un vyaktiyo ke photo dikhaye gaye the, jo pakde gaye the aur
unki pehchan karni thi"
"The English Translation of the above sentence is : It is correct that in the jeep
photographs of those persons were shown who were apprehended and their identification
was to be conducted."
From this the learned counsel suggested that this witness was shown the photographs and,
therefore, his evidence would be of no consequence. We cannot read this sentence in
isolation. Prior to this the witness had stated in the following fashion :
"In the way in jeep policemen told us that we will have to identify the persons those who
were involved in the commission of occurrence amongst the apprehended persons.
Policemen had taken the complete file of the case along with him to the prison. I had not
seen that file. Therefore, I cannot tell as to whether it was containing the details of the
apprehended persons or not." When we see the earlier part of the evidence, it is clear that
this so-called admission has been inadvertently given. This is apart from the fact that
there is nothing to suggest that he was shown the photographs of the accused appellant.
We, therefore, ignore this so-called admission as has been done by Trial and Appellate
Courts. He has specifically pointed out about his identification in the jail. Very
significantly this witness was suggested that there was no identification parade held at all
in the jail. Even if we ignore the test identification parade, there is nothing suggested to
him in his cross-examination to challenge his identification in the court. We are quite
alive to the fact that identification, for the first time in the court, is inconsequential.
However, we cannot forget the fact that in this case all these witnesses were the bank
employees who had undergone a traumatic experience of a broad day-light dacoity. They
were with the dacoits for substantial time. The dacoits had also not covered their faces.
When We see the admission closely regarding the photographs, there is nothing to
suggest that the photographs of Pravin (the present appellant) was shown to this witness.
We, therefore, have to ignore the so-called admission. He also does not state as to how
many photographs were shown to him and whether he had identified those accused
persons whose photographs were shown to him. It may be that some photographs may
have been shown regarding some arrested persons but that by itself does not affect his
evidence particularly when it is not put to him specifically that he had seen the
photographs of this appellant and his identification was on the basis of those photographs.
The Trial Court as well as the High Court have relied on this witness and we do not find
anything wrong, more particularly because he has stoutly denied the suggestions
regarding the accused persons being shown to him earlier when they were in the custody.
15. The other witness on whose evidence the reliance has been placed by the Trial Court
as well as the High Court is Shri S. M. Dholey (PW-6) and Mahendra Chauhan (PW-10).
Shri Dholey (PW-6) reiterated about the dacoity and claimed that a pistol was brandished
on him by one of the accused persons. He thereafter gave a graphic description as to what
transpired. He then
@page-SC1851
asserted that when the dacoits fell short of the bags to carry the looted booty, they took
his bag also. He described his bag to be black coloured bag made of parachute cloth in
which his driving licence, one pyramid card, statement about Dena Bank Navlakha and
documents regarding the attachment from the Nazul Tehsildar Shri Rajnish Srivastava's
court. It also had the insurance policy of his vehicle, one and a half dozens of pens, etc.
His evidence was of no consequence as he has specifically stated that the present
appellant was not amongst the five dacoits. However, one of them resembled accused
Harish. In his cross-examination by the prosecution this witness, however, identified his
bag. He also admitted that he had identified his bag when it was put for test identification.
He also reiterated that he was using that bag for the last 7 to 8 years. We would return to
this evidence a little later.
16. Last ,of the identifying witness is Mahendra Chauhan (PW-10). He first asserted that
he knows the two accused persons present in the court. He thereafter gave a graphic
description of the dacoity. He also stated about the bag being brought from a customer
and the bag of the staff having been taken by the dacoits and the said bags being filled
with the currency notes. He also stated about Daman Singh (PW-5) giving the keys.
Lastly he asserted that in the test identification parade about 10 persons were present and
out of whom he identified Harish and Pravin. He, however, admitted that he had wrongly
identified Pravin as per Exhibit P-22. We would, therefore, chose to ignore his evidence
since he had wrongly identified the appellant in the identification parade.
17. The other evidence is that of Shiv Sagar (PW-14). He was the witness on the arrest of
the appellant. He reiterates that in his presence Pravin spoke about the jeep, the currency
notes and the slips attached to the currency bundles. The witness asserts that the accused
had agreed to show the jeep which was behind the Chappan Dukan complex. He then
reiterates that the police seized the jeep, the bundle of notes and the slips on the bundles
of notes. He proved his signatures on Memorandum (Exhibit P-23) and the subsequent
panchanama (Exhibit P-24). He asserted that the police had seized Rs.40,000/- at the
instance of Pravin Sharma but from where, he did not know. He also spoke about the
seizure of 12 bore pistol and a black bag. He, accepted his signatures on Exhibits P-21, P-
17, P-18 and P-19. The Public Prosecutor was permitted to put the questions in the nature
of cross-examination wherein he had accepted that Pravin Sharma had spoken about the
Ambassador Car MP-9W-552. In the cross-examination by the accused, he rejected the
suggestion that the Panchanama were already written on which he was asked to put his
signatures.
18. The other relevant witnesses is Raj Narain Tandon (PW-21) who deposed about the
dacoity but did not identify the appellant. Similar is the case of Ashish Goyal (PW-22).
He had gone to the bank along with his friend on that day. However, he also refused to
identify the accused. The next witness is Deepak Sompurkar (PW-23) who was a clerk in
the bank. His evidence is of no consequence as he has not identified the appellant.
Similar is the story of Suresh, son of Motilal (PW-24) and Nathulal, son of Kaluram (PW-
25). Arvind Kumar (PW-26) has also refused to identify the accused. Again the evidence
of Sangeeta Silawat (PW-27) is also of no use since she has also not identified the
accused. She has, however, reiterated that the dacoits took the bags from the customers
and the staff. The evidence of Govind Singh Dodiya (PW-29) is also of no consequence
as he has refused to identify the accused even in the court. Shefali (PW-30) is a child
witness. At that time her age was 13 years. Though she has spoken about the dacoity and
the other details regarding the dacoity but nothing against the appellant. Manish
Chaturvedi (PW-33) who was the landlord of appellant Pravin was also examined. The
other witnesses like Ajay Lashkari (PW-34), Ramu Yadav (PW-35), Deepak Jain (PW-
36), Alok Namdev (PW-37), Atul Karamsingh Parmar (PW-38) would be of no
consequence since all these witnesses have not identified the appellant at all. The only
other witness is Sumit Sankala (PW-45) who is an auto dealer and who spoke about the
purchase of a vehicle by two persons. He reiterated that the purchase was made by one
Pravin Sharma and one other person. He reiterated that Pravin Sharma purchased the
vehicle MP-09-W-5521 whose registered owner was Usmanbhai. The other witnesses like
Gurdial Singh (PW-46), Jai Prakash Yadav (PW-47) are hostile witnesses. Even the
evidence of Narmada Bai (PW-51) is of no use to the prosecution.
@page-SC1852
19. The most significant evidence is that of Baldev Singh Thakur (PW-52) who was the
Investigating Officer. He deposed about the arrest of accused Pravin on 26-9-2003. He
then contended that in his presence Pravin Sharma had disclosed that out of Rs. 14 lakhs,
Rs. 40,000/- and one 12 bore Katta was hidden by him in an iron box. He also disclosed
the place where the concerned jeep was parked. He thus proved Exhibit P-23.
Accordingly he reiterated that he had taken Pravin Kumar Sharma to his residence at
32/3, Pardesipura where he recovered articles 1 to 18. He also deposed about the seizure
of a jeep. He also deposed about Exhibit P-20 which was a temporary residence of one
accused Annu alias Anand. He claimed that from that residence which consisted of only
one room, he seized 38 slips and the other articles like rubber rings, plastic strings, etc.
He was cross-examined in detail on the discoveries and more particularly on Exhibits P-
23 and P-24 and a suggestion was given to him specifically that Pravin, the appellant had
not discovered anything. He admitted in his cross-examination that in Exhibit P-23
memorandum it is not written as to from which place accused Pravin got the pistol and
the amount. That would be of no consequence since there is no cross-examination on the
factum of recovery of gun.
20. The other officer who investigated the case is Irfan (PW-53) who had examined the
said pistol. Lastly the prosecution examined Hukum Singh Yadav (PW-54). His evidence
is not of much significance in so far as the present accused is concerned. The last witness
is Nayab Tehsildar Chand Mohd. Khan (PW-55) who held the test identification parade.
He reiterated that Surendra Kumar (PW-4) had wrongly identified the accused while even
Mahendra Chauhan (PW-10) had not correctly identified the accused. He, however,
reiterated that Daman Singh (PW-5) had correctly identified both the accused. He also
reiterated that Ashok Kumar Dubey (PW-1) had correctly identified the accused. In his
cross examination it came out that the other persons who were asked to stand for the
identification along with accused persons, nobody was 27 years old. He also admitted
that he had not mentioned in the Panchanama that the persons who stood for
identification had to put on the blankets, though he asserted that the said persons had
covered their whole body excepting their faces with the blankets. It is on the basis of the
above said evidence that the accused-appellant came to be convicted.
21. We have deliberately taken stock of the whole evidence particularly because it was
very vehemently asserted by the learned counsel for the Defence that there was no proper
appreciation of evidence either by the Trial Court or by the High Court. We do not think
that such a sweeping statement can be made about the judgments of the High Court and
the Trial Court. We have considered the judgments very carefully and find that the High
Court as well as the Trial Court have gone into the intricacies of the evidence. We are,
therefore, not impressed at all by this contention on the part of the Defence.
22. The main stay of the Defence was that the investigation was not fair in this case
inasmuch as the police had shown the accused persons to the identifying witnesses. We
have already given our reasons as to why we would be prepared to accept the evidence of
Ashok Kumar Dubey (PW-1). It is true that in his substantive evidence he did not speak
about his identifying the accused appellant in the identification parade but we cannot
forget the fact that there is a clear cut evidence of the Magistrate who conducted the
Parade confirming such identification. There is practically no cross-examination of this
witness. We are particularly impressed by the recovery of Rs.40,000/- from the
possession of the accused-appellant which recovery has been accepted by the Trial and
the Appellate Courts. The recovery of the slips as also of the gun which was brandished
against the witness is also no less significant. There is no explanation given by the
accused as to how a huge sum of Rs. 40,000/- and the Dena Bank slips and the other bank
documents could be recovered from him.
23. It was feebly argued before us that there was delay in holding the identification
parade. In the peculiar facts and circumstances of this case we do not think this delay was
of any significance. We say this as the other accused persons are still at large and,
therefore, test identification parade could not have been conducted in respect of only
some of the accused. Again the question of delay was never raised by way of cross-
examination and no explanation was called for from the investigating officer. Had the
question been asked, the witness would
@page-SC1853
have answered the same. Similar view has been taken by this Court in Pramod Mandal v.
State of Bihar [(2004) 13 SCC 150] where the Court had found that there is no fixed rule
as regards the period within which the test identification parade must be held. In this case
this Court observed that :
"If there is any delay, unless the reasons for the delay are put by way of questions in the
cross-examination to the investigating officer, the so-called delay was of no
consequences."
This Court in Paragraphs 23 specifically held that :
"Where the witnesses have ample opportunity to watch the dacoits and their physical
features, etc., their evidence of the identification is strengthened."
Therefore, if there was any delay in holding the identification parade, it is insignificant
according to us in the peculiar facts of the present case.
24
. In Bharat Singh v. State of U.P. [(1973) 3 SCC 896] a Three Judge Bench of this Court
had specifically observed in para 6 : AIR 1972 SC 2478
"Although it is desirable to hold identification parade at the earliest opportunity, where

there is a delay of three months in holding the identification parade, it is a duty of the
accused to cross-examine the police officer who conducted the investigation and the
Magistrate who held the parade if the accused wishes to take advantage out of such undue
delay."
We respectfully follow the above decision.
25
. In State of Rajasthan v. Sukhpal Singh and Ors. [(1983) 1 SCC 393] this court ignored
the wrong identification particularly holding that : AIR 1984 SC 207
"Since the part of the loot as well as the weapons used in the dacoity were recovered and
since the testimony of the bank employees were found reliable, they being independent
witnesses, some irregularities in the identification parade were liable to be ignored."
This was also a case of dacoity on the bank and the bank witnesses were disbelieved. This
Court observed :
"Witnesses who had no axe to grind and had no personal motive to implicate the accused
on a false charge, have been disbelieved on feeble considerations. And the re-covery of
incriminating articles has been bypassed and disbelieved by characterizing it as unnatural
and incredible. Different crimes have different patterns and the offenders improvise their
strategy according to the exigencies of the occasion."
This Court also observed similarly about the seizure of Ambassador Car, the chits found
with the bundles of currency bearing the name of the bank and the box containing certain
documents belonging to the bank. Very significantly the situation is identical as in the
present case where also the defence had taken the theory of planting after the arrest of the
dacoits as in the present case. We wonder as to how and wherefrom the police would
bring a huge sum of Rs.40,000/- for being planted. It is for this reason that we have
chosen to accept the evidence of Ashok Kumar Dubay (PW-1), Surendra Kumar (PW-4)
and Daman Singh (PW-5).
26
. We cannot again forget that the stolen property was recovered from the possession of the
appellant. We would, therefore, be justified in using the presumption raised by Section
114 of the Evidence Act as was done in the case of Ronny v. State of Maharashtra [(1998)
3 SCC 625]. 1998 AIR SCW 1103
27. There is also supporting and corroborating evidence of the recovery of the other
materials like the bag of S. M. Dholey (PW-6) which was recovered during the
investigation. This discovery of the bag is also extremely significant because there was
no reason for this bag which contained the private documents of Shri Dholey to be
recovered from the accused. That also lends credence to the fairness of the investigation
by the police. It will not be possible for us, in our jurisdiction under Article 136 of the
Constitution, to reappreciate the evidence and we will have to only see as to whether Trial
Court and the Appellate Court were correct in reaching the conclusions that they have
recorded. We again reiterate that the identification in the peculiar facts of this case by
Ashok Kumar Dubey and other witnesses would be acceptable in spite of the so-called
defects shown by the Defence in holding the identification. Considering the overall
circumstances in the peculiar facts and circumstances of this case we hold the appellant
guilty of committing the offence of dacoity.
28. There is also no explanation about
@page-SC1854
the gun as well as the bullets which were examined by Irfan (PW-53). The gun was
obviously an unlicenced pistol and, in our opinion, it was obviously used in contravention
of Section 5 of the Arms Act. The conviction of the accused-appellant, under Sections 25
and 27 of the Arms Act was also correctly recorded by the courts below.
29. In the above circumstances we do not find any merits in this appeal and the same is
accordingly dismissed.
Appeal dismissed.
AIR 2008 SUPREME COURT 1854 "Bavisetti Kameshwara Rao v. State of A. P."
Criminal Appeal No, 547 of 2008 (arising out of SLP (Cri.) No. 6903 of 2007), D/- 25 -3
-2008.
Bavisetti Kameshwara Rao @ Babal v. State of A.P.
(A) Penal Code (45 of 1860), S.300 - MURDER - Murder - Intention to cause bodily
injury sufficient in ordinary course to cause death - Accused a motor mechanic - Verbal
altercation between accused and deceased - Accused thereupon inflicting injury on
abdomen of deceased with screw driver - Injury 12 cms. deep damaging liver and spleen -
Death caused almost instantaneously - Accused could be said to have intended to cause
injury sufficient to cause death - Use of screw driver, a common tool of mechanic, cannot
be said to be innocuous - Accused liable to be convicted for murder. (Paras 10, 11,
12)
(B) Penal Code (45 of 1860), S.300 - MURDER - Murder - Solitary injury - Not by itself
sufficient to decide nature of offence - Nature of offence would depend on other attendant
circumstances.(Paras 12)
(C) Penal Code (45 of 1860), S.300 - MURDER - Murder - Sudden fight - Verbal
altercation between unarmed deceased and accused - Accused thereupon plunging screw
driver in abdomen of deceased - Accused using such savage force so as to cause 12 cm
deep injury - Accused chasing deceased even after incident - Evidence showing that there
were previous altercation and accused were seething with anger to take revenge - Plea
that incident was sudden and without pre meditation - Not tenable. (Paras 14, 15)
(1995) 1 SCC 326 (Rel. on) 13
AIR 1984 SC 759 : 1984 Cri LJ 478 (Ref.) 13
AIR 1981 SC 1552 : 1981 Cri LJ 1136 (Ref.) 13
AIR 1958 SC 465 (Ref.) 13
G.V.R. Choudary, K. Shivraj Choudhuri, for Appellant; Mrs. D. Bharathi Reddy, for
Respondent.
* Cri. Appeal No. 567 of 2005, D/- 26-2-2007 (AP).
Judgement
1. V. S. SIRPURKAR, J. :- Leave granted.
2. The appellant, Bavisetti Kameswara Rao original accused No. 1 (A-1) has approached
this Court challenging the judgment of the Andhra Pradesh High Court, confirming his
conviction (accused No. 1) for an offence under Section 302 IPC.
3. Initially, as many as eight persons were tried by the Additional Sessions Judge (Fast
Track Court) for various offences under Sections 147, 148 and 302 read with Section 149
etc. The allegation is that all the accused persons alongwith some others formed
themselves into an unlawful assembly and in pursuance of the common object of that
assembly, they committed murder of one Samudrala Pandu Rangarao @ Rayalam
Rangadu. According to the prosecution, on 28th July 2007, at about 11 P.M., the deceased
alongwith his friend Tamarapalli Subba Rao had visited mini lorry supply office of the
first accused and he wanted to consume alcohol there. The first accused refused to let him
have the alcohol there and on this, there was a wordy altercation in between the first
accused and the deceased, and they also had the physical altercation with each other and
in this melee, the first accused has sustained a wound on his hand. They were pacified by
the people gathered there and at that juncture, both the first accused as well as the
deceased sworn towards each other's life. The prosecution alleged that in pursuance of
this, the first accused had a discussion with the second accused and with the other seven
accused persons and hatched up a plan to do away the deceased and were waiting for an
opportunity. On 30th July 2000, all the accused formed into an unlawful assembly in
@page-SC1855
the mini lorry office of the first accused at about 10 P.M. in pursuance of their pre-plan.
The first accused was armed with the screw driver and the second accused had a pen
knife. At around 10.30 P.M. on that day, the deceased came there on his Yamaha Motor
cycle bearing registration No. AP-37 A-7569 and on seeing the deceased, A-1 and A-2
abused him filthily. When the deceased questioned their behaviour, A-1 and A-2 in
pursuance of their intention, attacked the deceased with their weapons, wherein, the first
accused stabbed the deceased below the left side chest with screw driver causing him a
deep bleeding injury. A-2 also attacked the deceased with his pen knife, but the deceased
tried to protect himself. However, the deceased suffered two incised wounds on his palm.
4. It was the further case of the prosecution that the other accused persons also attacked
the deceased and assaulted him with hands. The deceased somehow or the other escaped
when he was given a hot chase by all the accused. The deceased straightaway went to
Bhimavaram II Town Police Station and reported the matter to the sub-inspector of police
on duty, Sh. K.V.N.Vara Prasad, LW.23. Since the deceased required immediate medical
help, he was tried to be taken to Government Hospital, Bhimavaram. However, in the
way itself, the deceased breathed his last. Accordingly, an offence under Section 302 read
with Section 34 was recorded vide Cr. No. 97/2000 by the LW.23. The investigations
started and the accused came to be rounded up and on completion of the investigations, a
charge sheet was filed against as many as eight accused persons, who were tried before
the Additional Sessions Judge (Fast Track Court), Bhimavaram. The Additional Sessions
Judge at Bhimavaram, however, convicted only A-1 and A-2 and convicted both of them
for the offence under Section 302 while acquitting the rest of the accused persons. Both
of them were sentenced to suffer rigorous imprisonment of life and also to pay fine of
Rs.4,000/- in default, to suffer a further imprisonment for one year.
5. On appeal, however, the conviction of appellant (herein) was confirmed for an offence
under Section 302 but A-2 was acquitted of that offence and was convicted for an offence
under Section 324 and his sentence was brought down to the rigorous imprisonment for
two years. It is this appellate judgment, which has been challenged before us. This Court,
however, on 15th January 2008 issued a notice confined to the question of sentence. As
the appeal was delayed, a nptice was also sent on delay.
6. Considering the circumstances under which the appeal was filed, we condone the
delay.
7. Insofar as the first accused-appellant Bavisetti Kameswara Rao is concerned, the
learned counsel urged before us that this was a case of single injury that too, the weapon
used was a screw driver which was in the regular use of the accused as a tool, the
accused-appellant being a motor mechanic. It was but natural that he would use the said
screw driver in the regular course of his occupation and since he had not used any other
weapon, it could not be said that his intention was to cause death of the deceased or also
to cause such bodily injury as would be sufficient to cause death of the deceased. The
learned counsel for the accused submitted that it was only a single injury and, therefore,
even if in the knowledge of the accused that such injury was likely to cause the death of
the deceased, the offence at the most would be under Section 304 Part II of the IPC. As
an alternative argument, the learned counsel contended that at the most that this was a
sudden quarrel and the altercation took without a pre-plan, as such, the offence at the
most could have been under Section 304 Part I and, therefore, the High Court and the trial
Court were not justified in convicting the accused for an offence under Section 302 and
sentencing him to suffer rigorous imprisonment for life.
8. We have given very deep consideration to the contentions raised. It is found from the
medical evidence that the deceased suffered the following injuries at the hand of the
accused. The injuries have been proved by PW. 15 D. Varahalaraju, who was himself a
Civil Surgeon. He had conducted the postmortem and examination on the dead body of
the deceased and found the following injuries:
1. An incised wound on lateral aspect of left palm 2cm x ½ cm x 2 cm, black in colour.
2. An incised wound above wound No. 1 on lateral aspect of left palm, 2 cm x ½ cm x 2
cm, black in colour.
3. An incised wound on epigastria region of abdomen just below xiphi sternum 2 cm
@page-SC1856
x 1cm x 12cm (length, breadth, depth respectively) .
4. An abrasion on from of right upper arm above elbow joint 5 x 4 cm, black in colour.
5. An abrasion on medical aspect of left leg, 2cm x ½ cm, black in colour.
6. Another abrasion on front of left leg, 1cm x ½ cm, black in colour.
Internal Examination :
Head : Brain pale, neck, hyoid bone intact, thyroid cartilage-NAD. Thorax: Lungs-both
lungs pale. Heart: chambers empty, pale. Abdomen: liver- an incised wound on left lobe
of liver 3cm x 2cm x 3 cm pale.
Spleen : an incised wound on medial aspect of spleen, 3cm x 2cm x 2cm pale.
Kidneys : Both kidneys pale.
Stomach: empty.
Bladder: above 200 ml of urine present in bladder, above 900 ml of fluid blood present in
abdominal cavity.
9. According to the Doctor, the postmortem was done on 31st July 2000 and was
completed on that day at 3.15 P.M. He gave opinion that the deceased had died of
hemorrhagic shock due to injuries to liver and spleen. A glance at these injuries would
suggest that it was injury No. 3 which was fatal injury and it was in the region of
abdomen which was a vital part of the body of the deceased. The injury was 1cm x 1cm x
12cm (length, breadth and depth respectively). In the internal examination, it was found
that there was an incised wound on liver as well as spleen. The incised wound on liver
was 3cm x 2cm x 3cm in measurement, while on the spleen, the measure of the injury
was 3cm x 2cm x 2cm. There is hardly any cross-examination of this Doctor excepting
that injuries No. 5 and 6 could be possible by a fall, however, the seriousness of injury
No. 3 was not and could not be questioned in the cross-examination. We have, therefore,
no doubt that this injury with depth of 12 cm which was sufficient to cause the death. We
also cannot ignore that the screw driver used had the sharp end and the sufficient length
to cause the injury having the depth of 12cm. It was, therefore, clear that the eye-
witnesses have attributed this injury to the first accused-appellant and there could be no
other intention, excepting to cause death.
10. When the screw driver was plunged into the vital part of the body of the deceased, it
cut his liver and spleen. Therefore, this was a case where the act was done with intention
of causing bodily injury and the body injury intended to be inflicted is sufficient in the
ordinary course of nature to cause death, covered by "Thirdly" of Section 300 of "Indian
Penal Code". The act of the accused-appellant would, therefore, clearly come within the
definition of "murder" under Section 300 of the "Indian Penal Code".
11. We cannot forget that when the deceased came up to the office of the accused, there
was exchange of abuses and then, he was thrashed by the accused persons. There is
hardly any cross-examination of the eyewitnesses to dispute the authorship of this
particular injury. We have scanned the evidence very closely only to find that the
authorship of the injury could not be disputed and nor the manner in which the single
injury was inflicted. Therefore, under the circumstances, even if there was a single injury
caused, it was with such a force and on such vital part of the body that it caused almost
instantaneous death. The deceased, after he was injured went up to the police station and
before he could be reached to the hospital, breathed his last.
12. It is seen that where in the murder case there is only a single injury, there is always a
tendency to advance an argument that the offence would invariably be covered under
Section 304 Part II IPC. The nature of offence where there is a single injury could not be
decided merely on the basis of a single injury and thus in a mechanical fashion. The
nature of the offence would certainly depend upon the other attendant circumstances
which would help the court to find definitely about the intention on the part of the
accused. Such attendant circumstances could be very many, they being (i) whether the act
was premeditated; (ii) the nature of weapon used; (iii) the nature of assault on the
accused. This is certainly not exhaustive list and every case has to necessarily depend
upon the evidence available. As regards the user of screw driver, the learned counsel
urged that it was only the accidental use at the spur of the moment and, therefore, there
could be no intention to either cause death or cause such bodily injury as would be
sufficient to cause death. Merely because the screw driver was a usual tool used by the
accused in his business, it could not be as if its user would be innocuous.
@page-SC1857
13
. In State of Karnataka v. Vedanayagam [(1995) 1 SCC 326] this Court considered the
usual argument of a single injury not being sufficient to invite a conviction under Section
302 IPC. In that case the injury was caused by a knife. The medical evidence supported
the version of the prosecution that the injury was sufficient, in the ordinary course of
nature to cause death. The High Court had convicted the accused for the offence under
Section 304 Part II IPC relying on the fact that there is only a single injury, However,
after the detailed discussion regarding the nature of injury, the part of the body chosen by
the accused to inflict the same and other attendant circumstances and after discussing
clause Thirdly of Section 300 IPC and further relying on the reported decision in Virsa
Singh v. State of Punjab [AIR 1958 SC 465], the court set aside the acquittal under
Section 302 IPC and convicted the accused for that offence. The Court relied on the
observation by Justice Bose in Virsa Singh's case to suggest that : At p. 468, Para 16
"With due respect to the learned Judge he has linked up the Intent required with the
seriousness of the injury, and that, as we have shown is not what the section requires. The
two matters are quite separate and distinct, though the evidence about them may
sometimes overlap."
The further observation in the above case were :
"The question is not whether the prisoner intended to inflict a serious injury or a trivial
one but whether he intended to inflict the injury that is proved to be present. If he can
show that he did not, or if the totality of the circumstances justify such an inference, then,
of course the intent that the section requires is not proved. But if there is nothing beyond
the injury and the fact that the appellant inflicted it, the only possible inference is that he
intended to inflict it. Whether he knew of its seriousness, or intended serious
consequences, is neither here nor there. The question so far as the intention is concerned,
is not whether he intended to kill, or to inflict an injury of a particular degree of
seriousness, but whether he intended to inflict the injury in question, and once the
existence of the injury is proved the intention to cause it will be presumed unless the
evidence or the circumstances warrant an opposite conclusion. But whether the intention
is there or not is one of fact and not one of law. Whether the wound is serious or
otherwise, and if serious, how serious, is a totally separate and distinct question and has
nothing to do with the question whether the prisoner intended to inflict the injury in
question.
It is true that in a given case the enquiry may be linked up with the seriousness of the
injury, For example, if it can be proved, or if the totality of the circumstances justify an
inference, that the prisoner only intended a superficial scratch and that by accident his
victim stumbled and fell on the sword or spear that was used, then of course the offence
is not murder. But that is not because the prisoner did not intend the injury that he
intended to inflict to be as serious as it turned out to be but because he did not intend to
inflict the injury in question at all. His intention in such a case would be to inflict a totally
different injury. The difference is not one of law but one of fact.
(Emphasis supplied),
Their Lordships then referred to the decision of this Court in Jagrup Singh v. State of
Haryana [(1981) 3 SCC 616] where this Court observed : AIR 1981 SC 1552, Para 6
"There is no justification for the assertion that the giving of a solitary blow on a vital part
of the body resulting the death must always necessarily reduce the offence to culpable
homicide not amounting to murder punishable under Section 304 Part II of the Code. If a
man deliberately strikes another on the head with a heavy log of wood or an iron rod or
even a lathi so as to cause a fracture of the skull, he must, in the absence of any
circumstances negativing the presumption, be deemed to have intended to cause the death
of the victim or such bodily injury as is sufficient to cause death. The whole thing
depends upon the intention to cause death, and the case may be covered by either clause
1stly or clause 3rdly. The nature of intention must be gathered from the kind of weapon
used, the part of the body hit, the amount of force employed and the circumstances
attendant upon the death."
(Emphasis supplied).
Their Lordships also referred the case of Tolan v. State of T. N. [(1984) 2 SCC 133].
AIR 1984 SC 759
14. In the present case we do not have any reason to take any different view of the
@page-SC1858
matter. Here was the case where a long screw driver having a sharp end was plunged into
the abdomen of the deceased with such savage force that it caused injury which was 12
cm. deep cutting liver and spleen. This is apart from the fact that the deceased also
suffered other injuries. The deceased was unarmed and there was a heated exchange of
words before the incident. After the incident also the deceased was chased. Therefore, we
find that this is not the case where conviction could be for the offence committed under
Section 304 Part II IPC.
15. We also do not accept the contention of the learned counsel for the defence which was
raised only by way of a desperate argument that the incident was sudden and it was
without any pre-meditation, thereby the learned counsel wanted to bring the evidence
under Section 304 Part I. In short the counsel aimed at Exception I of Section 300 IPC.
Exception 4 was also brought to be relied upon. We do not think the evidence available
would warrant the offence covered by Exception 1 as there was no such grave and sudden
provocation on the part of the deceased. Similarly it was not a case of sudden fight in the
heat of passion nor was it a case of sudden quarrel when the offender having taken undue
advantage or acted in a cruel or unusual manner. There is evidence on record to suggest
that there was a previous altercation and the accused persons were seething in anger to
take the revenge of the incident which had taken place on 27th of the same month.
Further it was only after the deceased came in front of the shop of the accused on his
motorbike, first there was an exchange of abuses and it was then that the incident took
place where not only the accused but even the second accused is proved to have attacked
the deceased. This could not, therefore, be a case of a sudden fight. Therefore, the
question of application of Section 304 Part I is also ruled out.
16. Under the circumstances, we would be constrained to hold that the Courts below were
right in convicting this accused-appellant for an offence under Section 302. We,
therefore, find no reason to take any different view and confirm the conviction and
sentence of this accused also.
17. In the result, the appeal has no merits, and it is dismissed.
Appeal dismissed.
AIR 2008 SUPREME COURT 1858 "Laxmi Devi v. Mohammad Tabbar"
(From : Uttaranchal)*
-2008.
Laxmi Devi and Ors. v. Mohammad Tabbar and Anr.
Motor Vehicles Act (59 of 1988), S.168 - MOTOR VEHICLES - Accident compensation
- Multiplier - Choice of - Deceased aged 35 years at time of death - None of claimants
above that age - Multiplier applicable as per Sch.2 would be 16 - However considering
fact that claimant would get only 6% interest - And also fact that increase has been made
in notional income of deceased - Proper multiplier held, would be 14.
A. O. No. 154 of 2006, D/-31-08-2006 (Utr), Reversed. (Para 7)
2005 AIR SCW 2542 : AIR 2005 SC 2985 (Rel. on) 3, 4, 6
1994 AIR SCW 1356 : AIR 1994 SC 1631 (Ref.) 6
(1996) 4 SCC 362 (Ref.) 6
(1942) 1 All ER 657 (HL) 6
(1951) 2 All ER 448 6
Yunus Malik, Abhishek Vikas, Rani Kishore, Prashant Chaudhary, for Appellants; Ajay
Majithia, Rajesh Kumar, Dr. Kailash Chand, for Respondents.
* A. O. No. 154 of 2006, D/- 31-8-2006 (Utr).
Judgement
1. V. S. SIRPURKAR, J. :-Leave granted.
2. This appeal is filed by the widow and five children of one Rajendra Singh who died in
an accident on 12-4-2004 when he was riding on his bicycle and was given a dash by the
offending vehicle, a Canter Truck bearing Registration No. UA-04-1486. Rajendra Singh
died on the spot. The driver of the offending vehicle was caught on the spot. The
claimants, therefore, filed the claim before the Motor Accidents Claims Tribunal on the
basis that Rajendra Singh used to earn Rs. 140/- per day and Rs. 4200/- per month and
that his age at the time of accident was barely 35 years. In support of the claim, three
witnesses including Laxmi Devi, the wife of the deceased were examined and the
Tribunal, on the basis of the evidence, held that the deceased Rajendra Singh died on
account of the injuries sustained by him
@page-SC1859
in the accident on 12-4-2004 which accident had occurred due to rash and negligent
driving of the offending vehicle. As regards the income, the Tribunal assessed the same at
Rs. 15,000/- per annum on the basis of the notional income prescribed in Second
Schedule under Section 163-A of the Motor Vehicles Act. After deducting 1/3rd of the
said amount as the personal expenses of the deceased, the claimants' dependency was
assessed at Rs. 10,000/- per annum and by multiplying the annual dependency of Rs.
10,000/- with the multiplier of 16, the compensation was worked out to Rs. 1,60,000/-.
The other claims were also awarded being Rs. 2,000/- for funeral expenses, Rs. 5,000/-
for loss of consortium to the widow and Rs. 2,000/- for loss of estate. Thus a total sum of
Rs. 1,69,000/- was awarded as compensation to the claimants. The Tribunal directed the
payment of interest on the amount of compensation at the rate of 6% per annum from the
date of claim petition.
3
. An appeal came to be filed before the High Court by the claimants. No appeal, however,
was filed by the Insurance Company or the owner of the vehicle. It was contended before
the High Court that there was no basis for arriving at the notional income at Rs. 15,000/-
per annum and in fact the income was much more than that for which the evidence of
Laxmi Devi was led. Therefore, the enhanced compensation was claimed in the appeal.
As against this it was argued that the Tribunal had erred in applying the higher multiplier
of 16. Reliance was placed on a reported decision of this Court in T.N. State Transport
Corporation Ltd. v. Rajapriya and [(2005) 6 SCC 236]. 2005 AIR SCW 2542
4. The High Court confirmed the earlier findings regarding the negligence of death.
However, the High Court came to the conclusion that though the claim of the income of
Rs. 4200/- per month was not reliable, the notional income should have been held to be
Rs. 36,000/- per annum, i.e., Rs. 3,000/-per month. For this proposition the High Court
held that the notional income of Rs. 15,000/- in the Second Schedule was prescribed in
the year 1994 while the accident had taken place in the year 2004. The second reason
given by the High Court was that even an unskilled labourer, these days, can easily earn
Rs. 100/- per day and Rs. 3,000/- per month and, therefore, the High Count held the
income to be Rs. 36,000/ per annum and by deducting 1/3rd of the income of the
deceased for his personal expenses, the claimants' dependency was assessed at Rs.
24,000/- per annum. However, the High Court reduced the multiplier of 16 applied by the
Tribunal to 12. For this action, the High Court relied on the aforementioned judgment in
T.N. Transports Corporation's case. The High Court thus applied the multiplier of 12
instead of 16 and ultimately the High Court arrived at the figure of Rs. 2,88,000/- and to
this the other compensation on account of funeral expenses, loss of consortium to the
widow and loss of estate, which were granted by the Tribunal, were added and the total
compensation of Rs. 2,97,000/- was awarded by the High Court. The claimants,
dissatisfied with this finding, have filed this appeal before us.
5. Learned counsel for the claimants urged that the High Court erred in applying the
multiplier of 12 particularly when the deceased was only 35 years old and none of the
claimants was more than that age. Learned counsel further urged that the deceased had
left behind four minor daughters along with a young wife. It was urged that considering
the fact that only 6% interest was granted, the multiplier of 12 was not a proper multiplier
and the multiplier as found by the Tribunal should have been retained. As against this, the
learned counsel for the Insurance Company supported the order of the High Court and
claimed that in fact the compensation granted by the High Court was on higher side.
6
. We have considered the contentions as well as the law laid down in T.N. Transport
Corporation's case (supra). In the said decision this Court, after considering the rulings in
G.M. Kerala SRTC v. Susamma Thomas [(1994) 2 SCC 176], U.P. SRTC v. Trilok
Chandra [(1996) 4 SCC 362] as also the other English cases such as Davies v. Powell
Duffryn Associated Collieries Ltd. [(1942) 1 All ER 657 (HL)] and Nance v. British
Columbia Electric Rly. Co. Ltd., [(1951) 2 All ER 448] observed in para 12 that : 2005
AIR SCW 2542
1994 AIR SCW 1356
the
@page-SC1860
age of the deceased (or that of the claimants whichever is higher) and by the calculation
as to what capital sum, if invested at a rate of interest appropriate to a stable economy,
would yield the multiplicand by way of annual interest. In ascertaining this, regard should
also be had to the fact that ultimately the capital sum should also be consumed up over
the period for which the dependency is expected to last."
This Court then observed in para 16 as under :
"In Susamma Thomas case it was noted that the normal rate of interest was about 10%
and accordingly the multiplier was worked out. As the interest rate is on the decline, the
multiplier has to consequentially be raised. Therefore, instead of 16 the multiplier of 18
as was adopted in Trilok Chandra case appears to be appropriate."
It was also further observed by this Court that :
"The highest multiplier has to be for the age group of 21 years to 25 years when an
ordinary Indian citizen starts independently earning and the lowest would be in respect of
a person in the age group of 60 to 70, which is the normal retirement age."
In para 17 of the judgment this Court came to the conclusion that the appropriate
multiplier would be 12 and not 16 in case of a person where the deceased was 38 years
old and the interest was granted at 9% per annum from the date of claim petition. The
Court, therefore, reduced the multiplier from 16 to 12 and also reduced the rate of interest
to 7.5% per annum. It seems that based on that findings the High Court has reduced the
multiplier in the present case.
7. Considering the above principles in this case, we must say that the High Court has
definitely erred in bringing down the multiplier to 12. It is to be seen that in this case the
deceased was 35 years old. The claimants are his wife and four minor daughters. Even as
per the Second Schedule the multiplier in case of the persons between 35 to 40 years is
16. In the present case the rate of interest granted is only 6% considering the general rate
of interest prevalent in 2004. In our opinion, therefore, the proper multiplier would be 14
as the value of the notional income has been increased. It was nobody's case that the
deceased was not working at all. His wife has entered in the witness box and had asserted
that he earned Rs. 140/- per day. Even if we ignore the exaggeration, the figure arrived at
by the High Court at Rs. 100/- per day and Rs. 3,000/-per month appears to be correct.
However, considering that the claimant would get only 6% interest, we would chose to
grant the multiplier of 14 instead of 12. Accordingly the notional income as applied
would be Rs. 24,000 x 14 = Rs. 3,36,000/- and to this will be added the other
compensation like Rs. 2,000/- as funeral expenses. Rs. 5,000/-for the loss of consortium
to the widow and Rs. 2,000/- for the loss of estate. The claimants would, therefore, be
entitled to a sum of Rs. 3,45,000/-. The said sum shall carry the interest at the rate of 6%
per annum from the date of claim petition.
8. In view of the above, the appeal is allowed. There would be no order as to costs.
Appeal allowed.
AIR 2008 SUPREME COURT 1860 "Shivappa v. State of Karnataka"
(From : Karnataka)*
Criminal Appeal No.129 of 2006, D/- 31 -3 -2008.
Shivappa and Ors. v. State of Karnataka.
(A) Evidence Act (1 of 1872), S.3 - EVIDENCE - WITNESS - Evidence of eye-witnesses
- Credibility - Occurrence took place in night - Accused armed with weapons formed
unlawful assembly and assaulted deceased - Threatened eye witnesses, family members
of deceased when they came to his rescue - They ran away from village to jungle and did
not dare come back in night - In circumstances witnesses became dumbfounded and
could not shout - Would not by itself make them wholly untrustworthy - Their conduct,
having regard to the nature of offence, was more probable. (Para 17)
(B) Evidence Act (1 of 1872), S.3 - EVIDENCE - WITNESS - Eye witnesses - Evidence
of - Minor discrepancies or some improvements - Would not justify rejection of their
testimonies, otherwise reliable - Some discrepancies are bound to occur because of
sociological background of witnesses as also time gap between date of occurrence
@page-SC1861
and date on which they give their depositions in Court. (Para 19)
(C) Criminal P.C. (2 of 1974), S.154 - FIR - WITNESS - FIR - Delay - Occurrence took
place in night - Eye witnesses fled away from village to jungle because of threats given to
them by accused persons - They stayed out throughout night - Filing of FIR next day
morning, at earliest opportunity, by two married sisters of deceased, who came to spend
some time with their family on occasion of some festival - In circumstances, no
possibility of false implication could be inferred because of delay in lodging FIR - Fact
that Investigating Officer, in his evidence stated that one of prosecution witnesses had
come alone to Police Station - Would not be of much significance. (Paras 19, 21, 22)
(D) Evidence Act (1 of 1872), S.3 - EVIDENCE - POST-MORTEM - Medical evidence -
Not to be treated as sacrosanct - Time of death - Evidence of doctor that death occurred
within 24 hours of time of post-mortem - Thus variation between medical evidence and
testimony of eye witnesses is not such which would lead to conclusion that prosecution
case was not correct. (Para 13)
(E) Penal Code (45 of 1860), S.300 - MURDER - UNLAWFUL ASSEMBLY - Murder -
Accused 11 persons, armed with weapons formed unlawful assembly - Assaulted
deceased in presence of his family members - In FIR three motives attributed, one of
them being involvement of deceased in murder of younger brother of accused No. 1 -
Delay in filing FIR explained - Possibility of false implication, eliminated - Trustworthy
evidence of eye witnesses - Motive being proved and number of injuries on deceased
being 20 - Leads to only one conclusion that all accused persons formed common object
in committing crime - Prosecution proved its case beyond reasonable doubt - Conviction
of accused - No interference. (Paras 25, 27)
(F) Penal Code (45 of 1860), S.300 - MURDER - APPEAL - APPELLATE COURT -
Murder - Acquittal of accused - Appeal - Which case, deserves interference at the hands
of appellate court - Depend upon fact situation obtaining therein - Legal propositions
must be applied having regard to fact of each case.
Criminal P.C. (2 of 1974), S.386. (Paras 27, 31)
2007 AIR SCW 1850 : 2007 Cri LJ 2136 (Ref.) 30
2007 AIR SCW 3571 : 2007 Cri LJ 3209 (Ref.) 29
2007 AIR SCW 6562 (Ref.) 30
2004 AIR SCW 2140 : AIR 2004 SC 2158 : 2004 Cri LJ 2036 (Ref.) 14, 27
AIR 1991 SC 315 (Ref.) 15
S.S. Javali, Sushil Kumar, Sr. Advs., Kirit S. Javali, Vikas Rajipura, E.C. Vidya Sagar,
Sanjay Jain, Anmol Thakral, Ms. Meenakshi Singh, Mukesh Kumar, Sharanappa Mattur,
for Appellants; Anil K. Mishra, Sanjay R. Hegde, for Respondent.
* Cri. Appeal No.780 of 1999, D/- 28-10-2005 (Kant).
Judgement
S. B. SINHA, J. :- Appellants herein were tried under Section 302 of the Indian Penal
Code for committing murder of one Shrishail Shivappa Jagadale.
2. The occurrence took place at about 8.30 pm on 28-5-1994. A First Information Report
was lodged by Nimbewwa, sister of the deceased Shrishail Shivappa Jagadale at about
10.00 am on 29-5-1994, inter alia, alleging that the appellants were inimically disposed of
towards her brother and his family.
It was furthermore alleged that on the fateful day, when she, her mother, Mannandevva,
father Shivappa, younger brother Basappa, his wife, Gurubai, elder brother's wife
Maadevi were sitting in front of their house and her elder brother (deceased Shreeshaila)
was sitting on a katte (platform) below a Neem tree, the accused persons, who were 11 in
number, forming an unlawful assembly armed with axe and
@page-SC1862
Jambiya in their hands came there. Accused No. 1, Ningondeppa Master, shouted, "see
that he is sitting there on the platform, son pull that Shreeshaila", whereupon Accused
No. 11, Malakaji, pulled him up from his feet and threw him on the ground. Accused No.
11, Malakaji who had been holding an axe then assaulted Shreeshaila on his head.
He fell down shouting "satteppo" (died) whereafter Accused No. 11, Malakaji, and others
assaulted the deceased with axe and jambiya on his neck, chest, etc.
The deceased sustained grievous injuries. When the family members of the deceased
came to his rescue, the accused allegedly threatened them. They also told Basappa, the
younger brother, and Shivappa, the father of the deceased, that they would also finish
them whereupon they ran away from the village to a jungle.
3. It was alleged that the informant and her sister being women did not dare come to the
Police Station in the night apprehending that the accused might also assault them. She
came to the Police Station with her elder sister Shantavva and lodged the First
Information Report.
4. Before the learned Trial Judge, a large number of witnesses were examined on behalf
of the prosecution.
PW-9 is the father, PW-10 is the brother, PW-11 is the complainant-informant, PW-1 is
another sister, PW-13 is the wife and PW-21 is the niece of the deceased.
Apart from the family members, eight others were cited as witnesses in the charge-sheet.
CW-1 and CW-3 were not examined. Six villagers who were examined by the
prosecution, however, did not support the prosecution case.
It is not in dispute that Accused No. 1 Ningondeppa, Accused No. 2, Shivashankar and
Accused No. 3, Shivappa, are dead.
The learned Trial Judge by reason of his judgment and order dated 07-05-1999 gave
benefit of doubt to the accused persons, inter alia, holding :
(1) Having regard to the ocular evidence, vis-a-vis the medical evidence, it is doubtful as
to whether the prosecution has come out with correct version in regard to the time of
death;
(2) As the male eye-witnesses, who were members of the same family namely PW-9 and
PW-10, fled away from the place of occurrence and did not return during night and only
PW-11 and PW-12 having come to the Police Station for lodging the First Information
Report only at about 10 a.m. on the next day, they cannot be relied upon.
(3) Prosecution witnesses made improvements in their statements in court, vis-avis these
were statements made in terms of Section 161 of the Code of Criminal Procedure and on
that ground too their testimonies should not be relied upon.
5. All the witnesses who supported the prosecution case are related to the deceased.
Specific overt acts have been attributed by the prosecution witnesses only against
Accused No. 1, Ningondeppa, as against Accused No. 2, Shivashankar, Accused No. 3,
Shivappa, Accused No. 5 Shekappa and Accused No. 11, Malakaji, but they made general
statements with regard to the purported overt acts having been committed by all the
accused.
6. The High Court, on the appeal preferred by the State against the judgment of acquittal,
however, reversed the same opining that the prosecution has proved its case beyond all
reasonable doubts.
Appellants are, thus, before us.
7. Mr. S.S. Javali, learned senior counsel appearing on behalf of the appellant Nos. 1 and
2, submitted that as the findings of fact arrived "at by the learned Trial Judge cannot be
said to be wholly perverse, no interference therewith by the High Court was warranted. It
was urged that as the learned Trial Judge took into consideration the evidence of all the
relevant witnesses, the High Court committed a serious error in reversing the judgment as
it had the benefit of looking at the demeanour of all the prosecution witnesses.
8. Mr. Sushil Kumar, learned senior counsel appearing on behalf of the appellant Nos. 3
to 8, supplemented the submissions of Mr. Javali urging that as in the postmortem report,
semi-digested food was found in the stomach of the deceased, the same clearly
established that the time of death of the deceased as stated by the prosecution witnesses,
namely, at about 8.30 p.m. was false as according to the prosecution witnesses, the
deceased did not take any food after 10.00 a.m.
9. Mr. Anil K. Mishra, learned counsel appearing on behalf of the State, would, however,
support the impugned judgment.
@page-SC1863
10. The fact that the deceased met with a homicidal death is not in dispute. PW-24,
Gurappa Yankappa, in his deposition, stated that he received the dead body of Shrishail
on 29-5-1994 for the purpose of conducting the post-mortem. The autopsy was conducted
on the same day between 12.30 pm and 2.30 pm. The dead body bore as many as 20
injuries covering almost all parts of the body. Eight injuries were inflicted on upper parts
of the body. He opined that the death was due to shock as a result of haemorrhage and the
injuries to vital organs like brain, liver and lungs as also large blood vessels. He opined
that the death had occurred within 24 hours of the post-mortem examination. He
identified the weapons of attack which had been recovered during investigation and
marked as M.Os. 1 to 8, as the possible weapons with which incised as also the lacerated
wounds could have been caused. According to him, however, semi-digested food was
found in the stomach which shows that the deceased might have taken food four to five
hours prior to his death.
11. The learned Sessions Judge, as also the learned counsel appearing on behalf of the
appellant, have laid great stress thereupon as PW-12, Shantavva, sister-in-law of the
deceased had deposed that food had been prepared at the time when the incident took
place and the deceased had taken food at about 10.00 am.
12. Medical opinion is admissible in evidence like all other types of evidences. There is
no hard and fast rule with regard to appreciation of medical evidence. It is not to be
treated as sacrosanct.
13. The High Court, however, opined that in view of the evidence of the doctor that the
death occurred within 24 hours of the time of the post-mortem, the variation between the
medical evidence and the testimony of the eye witnesses is not such which would lead to
a conclusion that the prosecution case was not correct. We agree with the said view.
In Modi's Medical Jurisprudence, p. 185, it is stated that so far as the food contents are
concerned, they remain for long hours in the stomach and duration thereof depends upon
various factors.
14
. In Main Pal and Anr. v. State of Haryana and Ors. [(2004) 10 SCC 692], this Court
held : 2004 AIR SCW 2140, Para 11
"If the eyewitnesses' version, even though of the relatives, is found to be truthful and
credible after deep scrutiny the opinionative evidence of the doctor cannot wipe out the
effect of eyewitnesses' evidence. The opinion of the doctor cannot have any binding force
and cannot be said to be the last word on what he deposes or meant for implicit
acceptance. On the other hand, his evidence is liable to be sifted, analysed and tested, in
the same manner as that of any other witness, keeping in view only the fact that he has
some experience and training in the nature of the functions discharged by him."
15
. Indisputably, a large number of factors are responsible for drawing an inference with
regard to digestion of food. It may be difficult if not impossible to state exactly the time
which would be taken for the purpose of digestion. Reliance, however, has been placed
on Shambhoo Missir and Ann v. State of Bihar [(1990) 4 SCC 17] wherein this Court
keeping in view the fact situation obtaining in that case held : AIR 1991 SC 315,
Para 3
"4. The substance of the prosecution case is that the deceased Rajendra died as a result of
the assault in question at about 3 p.m. on the very day of the incident. However, on the
basis of the medical evidence, the defence has succeeded in establishing that he had died
soon after he left his house at 8 a.m. Dr. Shambhoo Sharan (PW 13) who performed the
post-mortem examination of the dead body, has stated both in his report as well as in his
deposition, that there was 8 ounces of undigested food in the stomach of the deceased. If
as alleged by the prosecution the death had occurred at 3 p.m., no such undigested food
would have been found in the stomach at that hour when the food was taken by the
deceased before 8 a.m. If this is so, then the whole case of the prosecution must crumble.
For this will establish beyond doubt that Rajendra had died very soon after 8 a.m. and
none of the so called eye-witnesses had seen the assault on Rajendra. The said fact will
also demolish the entire version of the three dying declarations made by the deceased to
various prosecution witnesses at three different places. The non-explanation by the
prosecution of the undigested food therefore casts serious adverse reflections on the
entire investigation in the present case. Unfortunately, the High Court has failed to deal
with this very important aspect of the evidence
@page-SC1864
on record which has been highlighted by the trial court. It also strengthens the defence
version that the accused have been involved in the present case by the obliging witnesses
and unfair investigation."
As is noticed from the factual matrix involved in the said case, the death occurred at 3.00
pm. Although the deceased had left his house at 8.00 a.m., it was found that he died soon
after 8.00 a.m. Certain additional features as for example, no eye-witness having seen the
assault on the deceased was also taken into consideration by the court. The dying
declaration whereupon the High Court relied upon was also not found to be reliable. It
was the cumulative effect of the said findings that a judgment of acquittal was recorded
and not on the basis of the medical opinion with regard to the time of taking of food item
alone.
16
. Yet again, in Bhimappa Jinnappa Naganur v. State of Karnataka [1993 Supp (3) SCC
449], on the same ground that the deceased died within a couple of minutes after coming
out of his courtyard could not have consumed his lunch at the time stated by PW-1,
namely, at about 1.00 pm, judgment of acquittal was rendered. In that case, the names of
the witnesses were not disclosed in the First Information Report. Although there were
more than 10 injuries on the head and face of the deceased, there was no trail of blood
from the house of the deceased right till the gutter on the roadside from where the body
was found which was at a distance of 400 feet. The fact that some semi-digested food was
found in his stomach together with other facts led this Court to hold that the High Court
did not meet with the reasonings of the trial court while rejecting the statement of the
eye-witnesses. Such is not the position here. 1993 AIR SCW 1357
17. We may notice the salient features of the prosecution case.

The learned Sessions Judge did not arrive at any specific finding as to why the conduct of
the witnesses was such which would lead to a total distrust to the prosecution witnesses.
All the members of the family were at one place. Two married daughters, namely, PW-11
Nimbewa, and PW-12, Shantavva came to the village, as there was a Jatra festival of the
village Deity, Lakkavva.
Accused persons who were 11 in number came variously armed. They not only killed the
deceased but also threatened the two family members with death as a result whereof they
fled to the jungle.
PW-9, Shivappa fled to his firm land. They did not dare come back in the night. If having
regard to the manner in which the occurrence took place, the witnesses became
dumbfounded and could not shout, the same by itself, in our opinion, would not lead to
the conclusion that they were wholly untrustworthy. In fact, their conduct, having regard
to the nature of the offence, appears to be more probable.
18. The parties are related. PW-21, Gurubai, in her evidence categorically stated that both
sides are related to her. All the witnesses in no uncertain terms described the manner in
which the assault had taken place. Not only the nature of the weapons which had been
used had been disclosed, the different parts of the body of the deceased whereupon
injuries were inflicted had also been stated. The reaction of the deceased on receipt of the
injuries has also been disclosed by almost all the material witnesses.
19. According to PW-11, Nimbewwa, she and PW-12 Shantawa started for Kolhar Police
Station to lodge the complaint at about 8 am from the village. The fact that both the ladies
went to the police station cannot be doubted as in the First Information Report itself, the
fact that the informant had come with her sister Shantawa was mentioned. Only because
PW-23, Ramappa, the Investigating Officer, in his evidence stated that PW-11,
Nimbewwa, had come alone to the Police Station is not of much significance. It may be
true that according to all the prosecution witnesses, about 100 villagers assembled.
Admittedly, even then nobody came forward to help them.
It was not necessary for the ladies to shout for help or ask the villagers to snatch the
weapons of offence from them as was suggested on behalf of the defence. If the villagers
who gathered in such a large number intended to render any help, they would have done
so of their own. Whether because of the village politics or otherwise, the fact remained
that they had not only failed to come to help the informant family but also turned hostile
to them speaks volume of their apathy.
No villager even informed the Police. At least some of them could have done so. PW-11,
@page-SC1865
Nimbewwa, in her evidence categorically stated that immediately after the occurrence,
the electricity went off. The telephones were also not working. They also stated that no
transport was available. It would, therefore, be too much to expect that those young ladies
would walk 11 kilometers on foot in the dead of night to lodge the First Information
Report. PW-21, Gurubai, made a statement that the Police came at about 8 am in the
morning on the next day. Evidently, it was an inadvertent statement as in her examination
in chief, she categorically stated that PW-11, Nimbewwa and PW-12, Shantavva left the
village for lodging a First Information Report at 8.00 am in the morning. This cannot be a
ground for disbelieving them. Minor discrepancies or some improvements also, in our
opinion, would not justify rejection of the testimonies of the eye-witnesses, if they are
otherwise reliable. Some discrepancies are bound to occur because of the sociological
background of the witnesses as also the time gap between the date of occurrence and the
date on which they give their depositions in court.
20
. In S. Sudershan Reddy and Ors. v. State of A.P. [(2006) 10 SCC 163], this Court held :
2006 AIR SCW 3680
"12. We shall first deal with the contention regarding interestedness of the witnesses for
furthering the prosecution version. Relationship is not a factor to affect the credibility of a
witness. It is more often than not that a relation would not conceal the actual culprit and
make allegations against an innocent person. Foundation has to be laid if plea of false
implication is made. In such cases, the court has to adopt a careful approach and analyse
evidence to find out whether it is cogent and credible.
[See also Sucha Singh and Anr. v. State of Punjab [(2003 (7) SCC 643] 2003 AIR
SCW 3984
21. Delay in lodging the First Information Report, in our opinion, has sufficiently been
explained. If the accused persons were to be falsely implicated, PW-9, Shivappa, and
PW-10, Bassappa, would have rushed to the Police Station on the same night. In any
event, they would have themselves gone for lodging the First Information Report on the
next date. They had fled away because of the threats given to them. They stayed out
throughout the night. PW-9 Shivappa, came back only on the next day. One can very well
visualize his mental condition. If the married sisters of the deceased, therefore, in the
aforementioned situation started from their village round about 8 o'clock on the next day
to reach the Police Station at about 10.00 am, no exception can be taken thereto. Delay in
lodging the First Information Report in a case of this nature is not such which would
impel us to infer that there existed a possibility of false implication.
There cannot be any doubt whatsoever that lodging of the First Information Report within
a short time after the occurrence would ordinarily lead to a conclusion that the statements
made therein are correct but when the delay in lodging a First Information Report is
sufficiently explained, the same would receive the evidentiary value it deserved.
22. The very fact that two married sisters gathered the courage at the earliest possible
opportunity to go to the Police Station itself eliminates false implication. They are
married. They came to spend some time with their family on the occasion of some
festival. It is difficult to believe that they would have some independent motive to falsely
implicate so many persons. If that be so, it might not have been possible for them to give
a detailed description of the manner in which the occurrence took place. Furthermore, the
Police came to the place of occurrence soon after the lodging of the First Information
Report. The dead body was immediately sent for post-mortem examination. From the
evidence of the doctor, as noticed hereinbefore, the post-mortem examination started at
12.30 pm. The approach of the High Court, therefore, cannot be said to be incorrect.
Furthermore, in the First Information Report Itself, three motives have been attributed,
one of them being the involvement of the deceased in the murder of the younger brother
of Accused No. 1, Ningondeppa.
23. The submission of Mr. Javali that overt acts have been attributed only to five of the
accused and all of them could not have been convicted invoking the provisions of
Sections 148 and 149 of the Indian Penal Code may now be considered. The First
Information Report, as also the evidences of as many as six eye-witnesses, clearly reveals
that all the eleven accused came in a group. All of them were armed with deadly weapons
although actual overt acts had been attributed to Accused No. 1, Ningondeppa, Accused
No. 2, Shivashankar, Accused No. 3,
@page-SC1866
Shivappa, Accused No. 5, Shekappa and Accused No. 11 Malakji. In their depositions,
the prosecution witnesses have categorically stated that all of them took part therein.
Even if we do not put entire reliance on the said statements, the very fact that the
deceased received as many as 20 injuries is itself sufficient to show that all the accused
persons not only came to the place of occurrence upon forming an unlawful assembly but
also had the requisite common object to kill the deceased. Formation of common object
must be inferred upon taking into consideration the entire situation.
24
. We may notice that in Munivel v. State of Tamil Nadu [(2006) 9 SCC 394], this Court
held : 2006 AIR SCW 1949
"36. Section 149 of the Penal Code provides for vicarious liability. If an offence is
committed by any member of an unlawful assembly in prosecution of a common object
thereof or such as the members of that assembly knew that the offence to be likely to be
committed in prosecution of that object, every person who at the time of committing that
offence was member would be guilty of the offence committed. The common object may
be commission of one offence while there may be likelihood of commission of yet
another offence, the knowledge whereof is capable of being safely attributable to the
members of the unlawful assembly. Whether a member of such unlawful assembly was
aware as regards likelihood of commission of another offence or not would depend upon
the facts and circumstances of each case. Background of the incident, the motive, the
nature of the assembly, the nature of the arms carried by the members of the assembly,
their common object and the behaviour of the members soon before, at or after the actual
commission of the crime would be relevant factors for drawing an inference in that
behalf. (See Rajendra Shantaram Todankar v. State of Maharashtra)" 2003 AIR
SCW 647
25. The motive having been proved and the number of injuries being 20, in our opinion,
leads to only one conclusion that all the accused persons formed a common object in
committing the crime.
26. The submission of Mr. Javali that one of the accused persons is a lawyer and another
is a teacher is a matter which cannot distract a Court of Law from arriving at a finding on
the basis of materials on record and the law operating in the field. If a lawyer was falsely
implicated and if he was not a member of the unlawful assembly, he could have examined
defence witnesses to prove his purported alibi. He is presumed to know his rights.
Presumably he knows as to how to establish a fact in a court of law.
27. It is, therefore, not possible to interfere with the well-reasoned judgment of the High
Court only on the aforementioned premise. There is no quarrel with the proposition that
an order of acquittal should not ordinarily be interfered with as the presumption of
innocence of the accused gets further strengthened by acquittal but the same by itself
would not mean that the appellate court cannot review the evidence on record and
interfere with the findings of the Trial Judge despite existence of compelling reasons.
In Mani Pal and Ann v. State of Haryana and Ors. [(2004) 10 SCC 692], it was held :
2004 AIR SCW 2140
"12. There is no embargo on the appellate Court reviewing the evidence upon which an
order of acquittal is based. As a matter of fact, in an appeal against acquittal, the High
Court as the court of first appeal is obligated to go into greater detail of the evidence to
see whether any miscarriage has resulted from the order of acquittal, though has to act
with great circumspection and utmost care before ordering the reversal of an acquittal.
Generally, the order of acquittal shall not be interfered with because the presumption of
innocence of the accused is further strengthened by acquittal. The golden thread which
runs through the web of administration of justice in criminal cases is that if two views are
possible on the evidence adduced in the case, one pointing to the guilt of the accused and
the other to his innocence, the view which is favourable to the accused should be
adopted. The paramount consideration of the Court is to ensure that miscarriage of justice
is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no
less than from the conviction of an innocent. In a case where admissible evidence is
ignored, a duty is cast upon the appellate Court to re-appreciate the evidence where the
accused has been acquitted, for the purpose of ascertaining as to whether any of the
accused really committed any offence or not. [See Bhagwan Singh and Ors. v. State of
Madhya Pradesh (2002 (2) SCC 567). The 2002 AIR SCW 1532
@page-SC1867
principle to be followed by appellate Court considering the appeal against the judgment
of acquittal is to interfere only when there are compelling and substantial reasons for
doing so. If the Impugned judgment is clearly unreasonable and relevant and convincing
materials have been unjustifiably eliminated in the process, it is a compelling reason for
interference."
Therein, the conclusion by the trial court upon objective analysis with regard to the
acceptability or otherwise of the rival stands taken, it was found that the judgment of
acquittal should not have been interfered with.
28
. Reliance has also been placed on Ram Swaroop and Ors. v. State of Rajasthan [(2004)
13 SCC 134] wherein this Court reiterated as under : 2004 AIR SCW 1729, Para
25
"It is well settled that if two views are reasonably possible on the basis of the evidence on
record, the view which favours the accused must be preferred."
Such an observation, however, was made after this Court went through the evidences
brought on record as also the findings recorded by the trial court vis-a-vis the High Court
to arrive at the conclusion that the interference was not warranted. The same view has
been taken in Budh Singh and Ors. v. State of U.P. [(2006) 9 SCC 731], wherein upon
going through evidences on record, this Court opined that the High Court was not correct
in arriving at the conclusion that the view of the trial court was wholly perverse and could
not be sustained by the materials brought on record. 2006 AIR SCW 2686
29
. Recently, however, in Mahadeo Laxman Sarane and Ann v. State of Maharashtra [2007
(7) SCALE 137], it was held : 2007 AIR SCW 3571
"18. We have heard counsel for the parties at length. We are conscious of the settled legal
position that in an appeal against acquittal the High Court ought not to interfere with the
order of acquittal if on the basis of the same evidence two views are reasonably possible -
one in favour of the accused and the other against him. In such a case if the Trial Court
takes a view in favour of the accused, the High Court ought not to interfere with the order
of acquittal. However, if the judgment of acquittal is perverse or highly unreasonable or
the Trial Court records a finding of acquittal on the basis of irrelevant or inadmissible
evidence, the High Court, if it reaches a conclusion that on the evidence on record it is
not reasonably possible to take another view, it may be justified in setting aside the order
of acquittal. We are of the view that in this case the High Court was justified in setting
aside the order of acquittal."
[Emphasis supplied]
30
. In Swami Prasad v. State of Madhya Pradesh [2007 (4) SCALE 181], this Court opined :
2007 AIR SCW 6562
"15. However, it is equally true that the High Court while entertaining an appeal against a
judgment of acquittal would be entitled to consider the entire materials on records for the
purpose of analyzing the evidence. There is a presumption that an accused is innocent,
unless proved otherwise. When he is acquitted, the said presumption, becomes stronger.
But it may not be correct to contend that despite overwhelming evidence available on
records, the appellate court would not interfere with a judgment of acquittal. {See
Chandrappa and Ors. v. State of Karnataka 2007 (3) SCALE 90.}" 2007 AIR SCW 1850
31. Which case, therefore, deserves interference at the hands of the appellate court would
depend upon the fact situation obtaining therein. Legal propositions must be applied
having regard to the fact of each case.
32. In view of our findings aforementioned, there is no merit in this appeal. It is
dismissed accordingly.
Appeal dismissed.
AIR 2008 SUPREME COURT 1867 "Hindalco Industries Ltd. v. Association of
Engineering Workers"
(From : Bombay)
Coram : 2 TARUN CHATTERJEE AND P. SATHASIVAM, JJ.
Hindalco Industries Ltd. v. Association of Engineering Workers.
Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act
(1 of 1972), S.26, S.30 - UNFAIR LABOUR PRACTICE - CONTRACT - COMPANY -
TRADE UNION - Unfair labour practice - Denying permanency to workers of statutory
canteen - Canteen run through contractor - Despite change of contractors over years - No
change in canteen employees ever
@page-SC1868
made - Most of employees working for more than 10-15 years - Terms of contract clearly
showing that ultimate control and supervision over canteen is of company - No valid
reason exist to deny permanency to canteen employees - Company can be said to be
guilty of unfair trade practice.
1999 AIR SCW 2740, Foll.
1995 Supp (1) SCC 17S, 2001 AIR SCW 170, 2001 AIR SCW 929, 2003 AIR SCW
5989, (2005) 12 SCC 433, Not Followed in view of 1999 AIR SCW 2740. (Paras 24, 25,
27)
(2005) 12 SCC 433 (Not Followed in view of 1999 AIR SCW 2740) 16, 22
2003 AIR SCW 5989 : AIR 2004 SC 269 : 2003 Lab IC 3852 (Not Followed in view of
1999 AIR SCW 2740) 15A, 22
1999 AIR SCW 2740) 14, 22
1999 AIR SCW 2740) 15, 15A, 16, 22
1999 AIR SCW 2740 : AIR 1999 SC 2577 : 1999 Lab IC 3078 (Foll.) 17, 22, 25, 27
1996 AIR SCW 1298 : AIR 1996 SC 1241 : 1996 Lab IC 1048 22
1995 AIR SCW 2609 : AIR 1995 SC 1666 : 1995 Lab IC 2064 20, 22
1995 Supp (1) SCC 175 (Not Followed in view of 1999 AIR SCW 2740) 13, 14, 15,
15A, 22
AIR 1990 SC 937 22
AIR 1964 SC 743 15
I.N. Rao, Sr. Advocate, R.K. Sanghi, Narendra M. Sharma, Ms. Vanita Mehta, Rajesh
Prasad Singh, for Appellant; S.F. Deshmuk, P.K. Manohar, for Respondent.
Judgement
1. P. SATHASIVAM, J. :- Hindalco Industries Ltd., aggrieved by the judgment and order
dated 20-01-2000 of the High Court of Bombay in L.P.A. No. 58 of 1999 confirming the
order of the Industrial Court accepting the case of the Association of Engineering
Workers' Union, has filed the above appeal.
2. The respondent herein namely, Association of Engineering Workers' Union (hereinafter
referred to as "the Union") filed a complaint of unfair labour practice under Item 9 of
Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair
Labour Practices Act, 1971 (hereinafter referred to as "the MRTU and PULP Act, 1971")
against Hindalco Industries Ltd. appellant herein (hereinafter referred to as "the
Company") before the Industrial Court at Thane. According to the Union, the
complainant is a trade union recognized as a representative union of the appellant-
company. The Company has engaged employees in unfair labour practices on and from
1971 on a continuous basis from month to month, therefore, the period of limitation is not
applicable. However, as a measure of abundant precaution, the Union has filed a separate
application for condonation of delay. The Company has engaged about 500 workmen in
the manufacture of aluminium and aluminium products. The complainant-Union
(respondent herein) is a recognized Union for the establishment of the appellant-
Company. In terms of Section 46 of the Factories Act, 1948, the Company is duty bound
to maintain a canteen for the benefits of workmen working in an establishment.
Accordingly, the Company is maintaining a Canteen at its Kalwa establishment. In order
to avoid giving the workmen working in the canteen, permanency and benefits which are
applicable to permanent workmen of the Company, the Company is illegally treating the
workmen working in the canteen as contract workmen. It is the specific case of the
complainant-Union that the contract is sham and is a mere arrangement made for the
purpose of avoiding permanency and giving wages and benefits as are applicable to
permanent workmen of the company.
3. On the date of filing of the complaint, out of 27 workmen who have worked for
various periods, 23 workmen have worked for more than ten years continuously the
maximum being for 25 years. The remaining four workmen have also worked for more
than 3½ years and as such are permanent workmen of the Company. The Company has
been making arrangement showing on papers that the contract is being given to someone
or the other whereas in fact, the canteen is engaged and run by the Company itself. It is,
therefore, the case of the Union that 27 workmen whose names are mentioned in the
complaint are, in fact, the workmen of the Company. As per the various decisions of this
Court, the workmen who are working in the statutory canteen are
@page-SC1869
treated as workmen of the principal employer. On the same analogy, all the 27 workmen
are workers of the Company.
4. The Company has engaged and is engaging in unfair labour practices by treating its
own workmen as workmen on contract. The workmen are entitled for a declaration that
they are the workmen of the Company, In order to comply with the technicalities that are
required to be done, the Union is simultaneously making an application to the State
Contract Labour Advisory Board to abolish the contract system as far as the canteen is
concerned in the appellant-Company. The Union is also raising a demand that all the 27
workmen should be absorbed in the Company from the initial date of their employment in
the Company and pay them wages and other benefits that are applicable to permanent
workmen of the Company.
5. The Company filed the reply in the Industrial Court stating that the complaint is time
barred since filed beyond the prescribed time limit laid down under the provisions of the
MRTU and PULP Act, 1971, hence the same is to be dismissed in limine. Further the
dispute under reference is pertaining to employees employed under the contract i.e.,
contract labour, there is a specific remedy and relief available under the Contract Labour
(Regulation and Abolition) Act, 1971, which is a specific forum available to redress the
grievances, if any. Inasmuch as the Complainant-Union has already approached the
appropriate authority for abolition of contract labour, the present complaint before the
Industrial Court is liable to be dismissed on the principle of res judicata. With regard to
the merits, it is stated that the practice of giving contract to run the canteen is in vogue
right from inception. The complainant is very well aware of the contract and the canteen
contractor who is managing the canteen. There are several decisions of this Court holding
that employing contract labour cannot be agitated within the forum under MRTU and
PULP Act 1971, when there is specific remedy available in Contract Labour (Regulation
and Abolition) Act, 1971. Moreover, since it is a disputable point such dispute is required
to be resolved through the machinery provided under the Industrial Disputes Act, 1947,
hence, any complaint to that effect under MRTU and PULP Act, 1971 is not
maintainable. It is further reiterated that working of the canteen is distinct and separate
which is neither incidental nor connected with the manufacturing process of the factory.
The canteen is exclusively run and managed by the contractor which is an outside agency.
6. On the above pleadings and on the basis of the oral and documentary evidence, the
Industrial Court, by order dated 15-10-1998, allowed the complaint and declared that the
Company has committed unfair labour practice under Item 9 of Schedule IV of the
MRTU and PULP Act, 1971 and further directed the Company to cease and desist such
unfair labour practice. In the same order, the Industrial Court directed the Company to
absorb and make the canteen employees referred to in the Annexure as permanent
employees of the Company from the date of its order. In addition to the same, the
Industrial Court directed the Company to pay them the wages and other benefits like the
last category of unskilled workmen in the Company.
7. Aggrieved by the aforesaid order of the Industrial Court, the Company preferred Writ
Petition No. 6181 of 1998 before the High Court of Bombay. The learned single Judge,
by order dated 25-01-1999, confirmed the order of the Industrial Court and dismissed the
writ petition. The said order of the learned single Judge was challenged before the
Division Bench of the High Court in L.P.A. No. 58 of 1999. By order dated 22-03-1999,
the said L.P.A. was summarily dismissed. Questioning the same, the Company filed an
appeal before this Court in Civil Appeal No. 6120 of 1999 (@ S.L.P.(C) No. 9244 of
1999). By order dated 25-10-1999, this Court allowed the appeal of the Company, set
aside the order passed by the High Court and remitted the matter to the High Court for
deciding the same on merits. Pursuant to the said direction, L.P.A. No. 58 of 1999 was
restored on its file and heard afresh and the Division Bench by the impugned order
dismissed the Letters Patent Appeal and confirmed the order of the Industrial Court.
Aggrieved by the aforesaid order of the Division Bench of the High Court dated 20-01-
2000, the Company has filed the present appeal.
8. Heard Mr. P.P. Rao, learned senior counsel for the appellant-Company and Mr. S.F.
Deshmuk, learned counsel for the respondent-Union.
9. The points for consideration in this
@page-SC1870
appeal are (1) whether the Industrial Court is justified in issuing direction to absorb all
the employees of the canteen in the company's employment and pay them wages and
other benefits to the extent of last category of unskilled workers in the company; (ii)
whether the High Court is right in affirming the said order?
10. Since, the Union has filed a complaint under item 9 of Schedule IV of the MRTU and
PULP Act, 1971, before going into the merits, let us refer the Preamble and relevant
provisions of the Act. The preamble of the MRTU and PULP Act, 1971 reads as under :-
"An Act to provide for the recognition of trade unions for facilitating collective
bargaining for certain undertakings; to state their rights and obligations; to confer certain
powers on unrecognized unions; to provide for declaring certain strikes and lockouts as
illegal strikes and lock-outs; to define and provide for the prevention of certain unfair
labour practices; to constitute courts (as independent machinery) for carrying out the
purposes of according recognition to trade unions and for enforcing the provisions
relating to unfair practices; and to provide for matters connected with the purposes
aforesaid.
WHEREAS, by Government Resolution, Industries and Labour Department, No. IDA.
1367-LAB-II, dated the 14th February, 1968, the Government of Maharashtra appointed a
Committee called "the Committee on Unfair Labour Practices" for defining certain
activities of employers and workers and their organizations which should be treated as
unfair labour practices and for suggesting action which should be taken against
employers or workers, or their organizations, for engaging in such unfair labour practices;
AND WHEREAS, after taking into consideration the report of the Committee the
Government is of opinion that it is expedient to provide for the recognition of trade
unions for facilitating collective bargaining for certain undertakings; to state their rights
and obligations; to confer certain powers on unrecognized unions; to provide for
declaring certain strikes and lockouts as illegal strikes and lock-out; to define and provide
for the prevention of certain unfair labour practices; to constitute courts (as independent
machinery) for carrying out the purposes or according recognition to trade unions and for
enforcing provisions relating to unfair practices; and to provide for matters connected
with the purposes aforesaid; It is hereby enacted in the Twenty-second Year of the
Republic of India as follows :-"
Among the various definitions, we are concerned about Section 3(16) which refers to
"unfair labour practices" means unfair labour practices as defined in section 26. Chapter-
VI, Section 26 speaks about Unfair labour practices. It reads :
"26. Unfair labour practices
In this Act, unless the context requires otherwise, 'unfair labour practices' mean any of the
practices listed in Schedules II, III and IV."
Sections 4 and 5 refer Industrial Court and its duties. As per Section 27, no employer or
union and no employees shall engage in any unfair labour practice. Section 28 provides
elaborate procedure for dealing with complaints relating to unfair labour practices.
Section 30 speaks about powers of Industrial and Labour Courts. Section 32 mandates the
Court shall have the power to decide all matters arising out of any application or a
complaint referred to it for the decision under any of the provisions of the Act. Section 59
makes it clear that if any proceeding is initiated under the the MRTU and PULP Act,
1971, no proceeding shall be entertained by any authority in respect of those matters
under the Bombay Industrial Relations Act, 1946 (Bombay Act) and Industrial Disputes
Act. 1947 (in short "the I.D. Act"). Section 60 prohibits filing of suits in any civil court in
respect of the subject-matter of a complaint or application to the Industrial Court or
Labour Court under this Act.
11. Though an objection was raised as to limitation in filing complaint before the
Industrial Court in view of reasons adduced and accepted by the Industrial Court and the
High Court, we are of the view that there is no need to elaborate the same. We also reject
the supplementary objection, namely, the complaint is hit by the principle of res judicata
since according to the Industrial Court, no sufficient material was placed to throw the
complaint on the ground of earlier/parallel proceeding in any other forum.
12. Coming to the main issue, according to the Union, the Company is having 500
employees working in the manufacturing and other activities. It is their specific case
@page-SC1871
that there is a canteen inside the campus of the manufacturing unit and it is a statutory
canteen and, therefore, the employees working in the canteen numbering 27 are the
employees of the company. It is not in dispute that the provisions of Factories Act, 1948
are applicable to the Company. Section 46(1) mandates that the State Government may
make rules requiring that in any specified factory wherein more than 250 workers are
ordinarily employed, a canteen or canteens shall be provided and maintained by the
occupier for the use of the workers. The presence of a canteen within the Company
premises and statutory provision as referred above are not disputed. However, it is the
case of the Company that the employees in the canteen are working through a contractor
and, therefore, they are not entitled for status of permanent employees of the Company.
Mr. P.P. Rao, learned senior counsel appearing for the appellant-Company, by drawing
our attention to various decisions of this Court would submit that unless relationship of
employer and employee exists, the present issue/claim cannot be gone into by the
Industrial Court under the provisions of the MRTU and PULP Act, 1971. In other words,
according to him, in view of the objection/stand taken in the reply statement before the
Industrial Court, the issue raised by the Union cannot be adjudicated and it is for the
Union or workmen to get an order under the provisions of the I.D. Act and thereafter,
approach the Industrial Court for necessary relief, if any. On the other hand, Mr.
Deshmuk, learned counsel appearing for the respondent-Union vehemently contended
that in view of the object of the enactment and all other details such as existence of a
canteen from several years, control and supervision by the company, the contractor is
only a name-lender and the Industrial Court has Jurisdiction to go into the issue raised in
the complaint. He further contended that based on the relevant acceptable materials, the
Industrial Court granted relief in favour of the Union which was rightly affirmed by the
High Court and the same cannot be lightly interfered under Article 136 of the
Constitution of India.
13. In the earlier part of our judgment, we have referred to the claim of both parties as
well as relevant provisions of the MRTU and PULP Act, 1971. Now let us consider
various pronouncements on the point in issue. The earliest decision relied on by the
Company is General Labour Union (Red Flag), Bombay vs. Ahmedabad Mfg. and Calico
Printing Co. Ltd. and Others, 1995 Supp (1) SCC 175. In that decision, General Labour
Union (Red Flag), Bombay had filed a complaint before the Industrial Court under the
MRTU and PULP Act, 1971 complaining of the breach of Items 1(a), (b), 4(a), (f) and 6
of Schedule II and Items 7, 9 and 10 of Schedule IV of the said Act. The case of the
complainant-union was that the 21 workmen who were working in one of the canteens of
the respondent-company, were not given the service conditions as were available to the
other workmen of the company and there was also a threat of termination of their
services. It is an admitted fact that these workmen were employed by a contractor who
was given a contract to run the canteen in question. The complaint was filed on the
footing that the workmen were the employees of the company and, therefore, the breach
committed and the threats of retrenchments were cognizable by the Industrial Court,
under the said Act. The complaint proceeded on the basis as if the workmen were a part
of the work-force of the company. The facts on record reveal that the workmen were
never recognised by the respondent-company as its workmen and it was the contention of
the company that they were not its employees. The Industrial Court dismissed the
complaint holding that since the workmen were not the workmen of the respondent-
company, the complaint was not maintainable under the said Act. The High Court in writ
petition confirmed the said finding and dismissed the petition on the same ground. Hence,
the Labour Union approached this Court by filing appeal. This Court has concluded as
under :-
"2. As pointed out both by the Industrial Court and the High Court, it was not established
that the workmen in question were the workmen of the respondent-company. In the
circumstances, no complaint could lie under the Act as is held by the two courts below.
We, therefore, find nothing wrong in the decision impugned before us. The workmen
have first to establish that they are the workmen of the respondent-company before they
can file any complaint under the Act. Admittedly, this has not been done. It is open for the
workmen to raise an appropriate industrial dispute in that behalf if they are entitled to do
so before they resort to the
@page-SC1872
provisions of the present Act."
14
. In Vividh Kamgar Sabha vs. Kalyani Steels Ltd. and Another, (2001) 2 SCC 381, similar
claim under the MRTU and PULP Act, 1971 was considered. The two Judge Bench
following the General Labour Union (Red Flag), Bombay case (supra) dismissed the
appeal filed by the workers-Union on the ground that the complaint was not maintainable.
Similar direction as issued in General Labour Union (Red Flag), Bombay case (supra) has
been issued in this case also. 2001 AIR SCW 170
15
. The next decision which is also under the MRTU and PULP Act, 1971 is Cipla Ltd. vs.
Maharashtra General Kamgar union and Others, (2001) 3 SCC 101. When similar claim
was made by the trade-Union against the Management Cipla Ltd., the same was
negatived by the Labour Court, However, the Division Bench of the High Court took a
different view of the matter and allowed the complaint. While considering the appeal
filed by Cipla, the two-Judge Bench accepted the case of the Management and rejected
the stand taken by the trade-Union. The argument of learned senior counsel appearing for
the Union that in view of Section 32 of the Act incidental question can be considered by
the Industrial Court was not acceptable and this Court concluded : 2001 AIR SCW 929
"11. Next decision relied upon by Shri Singhvi is Central Bank of India Ltd. v. P.S.
Rajagopalan AIR 1964 SC 743 to contend that even in cases arising under Section 33-
C(2) of the Industrial Disputes Act the scope, though very limited, certain incidental
questions can be gone into like a claim for special allowance for operating adding
machine which may not be based on the Sastry Award made under the provisions of
Chapter V-A. The learned counsel pointed out that in the event we were to hold that it is
only in clear cases or undisputed cases the Labour Court or the Industrial Tribunal under
the Act can examine the complaints made thereunder, the whole provision would be
rendered otiose and in each of those cases provisions of the Bombay Industrial Relations
Act, 1946 or the Industrial Disputes Act will have to be invoked. We are afraid that this
argument cannot be sustained for the fact that even in respect of claims arising under
Section 33-C(2) appropriate dispute can be raised in terms of Section 10 of the Industrial
Disputes Act and that has not been the position in the present case. Nor can we say that
even in cases where employer employee relationship is undisputed or indisputably
referring to the history of relationship between the parties, dispute can be settled and not
in a case of the present nature where it is clear that the workmen are working under a
contract. But it is only a veil and that will have to be lifted to establish the relationship
between the parties. That exercise, we are afraid, can also be done by the Industrial
Tribunal under the Bombay Industrial Relations Act, 1946 or under the Industrial
Disputes Act. Therefore, we are afraid that the contention advanced very ably by Shri
Singhvi on behalf of the respondents cannot be accepted. Therefore, we hold that the
High Court went far beyond the scope of the provisions of the Act and did not correctly
understand the decisions of this Court in Gujarat Electricity Board, Thermal Power
Station v. Hind Mazdoor Sabha, (1995) 5 SCC 27 and General Labour Union (Red Flag)
v. Ahmedabad Mfg. and Calico Printing Co. Ltd., 1995 Supp (1) SCC 175. The correct
interpretation of these decisions will lead to the result, which we have stated in the course
of this order." 1995 AIR SCW 2942
By saying so, allowed the appeal filed by Cipla Ltd.

15A
. The next decision heavily relied on the side of the appellant-Company is Sarva Shramik
Sangh vs. Indian Smelting and Refining Co. Ltd. and Others, (2003) 10 SCC 455. Here
again, this Court considered the very same provisions of the MRTU and PULP Act, 1971.
Similar contentions were raised by the Union and the Management. Basing reliance on
General Labour Union (Red Flag) Bombay (supra) and Cipla Ltd. (supra), this Court
concluded : 2003 AIR SCW 5989
2001 AIR SCW 929
"24.......... In order to entertain a complaint under the Maharashtra Act it has to be
established that the claimant was an employee of the employer against whom complaint
is made under the ID Act. When there is no dispute about such relationship, as noted in
para 9 of Cipla case the Maharashtra Act would have full application. When that basic
claim is disputed obviously the issue has to be adjudicated by the forum which is
competent to adjudicate. The sine qua non for application of the concept of unfair labour
practice is the existence of a direct relationship of employer and
@page-SC1873
employee. Until that basic question is decided, the forum recedes to the background in
the sense that first that question has to be got separately adjudicated. Even if it is
accepted for the sake of arguments that two forums are available, the court certainly can
say which is the more appropriate forum to effectively get it adjudicated and that is what
has been precisely said in the three decisions. Once the existence of a contractor is
accepted, it leads to an inevitable conclusion that a relationship exists between the
contractor and the complainant. According to them, the contract was a facade and sham
one which has no real effectiveness. As rightly observed in Cipla case it is the
relationship existing by contractual arrangement which is sought to be abandoned and
negated and in its place the complainant's claim is to the effect that there was in reality a
relationship between the employer and the complainant directly. It is the establishment of
the existence of such an arrangement which decides the jurisdiction. That being the
position, Cipla case rightly held that an industrial dispute has to be raised before the
Tribunal under the ID Act to have the issue relating to actual nature of employment sorted
out. That being the position, we find that there is no scope for reconsidering Cipla case
the view which really echoed the one taken about almost a decade back."
16
. In Oswal Petrochemicals vs. Govt. of Maharashtra and Others, (2005) 12 SCC 433
which is also a two-Judge Bench, while considering the very same Act, namely, the
MRTU and PULP Act, 1971 following the judgment of this Court in Cipla Ltd. (supra)
disposed of the appeal on the same terms. 2001 AIR SCW 929
17
. Though Mr. Deshmuk, learned counsel for the Union relied on several decisions and
also highlighted that all the above referred decisions are distinguishable, it is useful to
refer to a three-Judge Bench decision of this Court in Indian Petrochemicals Corporation
Ltd. and Another vs. Shramik Sena and Others, (1999) 6 SCC 439. This is an appeal
preferred by M/s. Indian Petrochemicals Corporation Limited and another (Management)
against an order dated 29-8-1997 made by the High Court of Judicature at Bombay in
W.P. No. 2206 of 1997 filed by the Shramik Sena and another (workmen). Against the
very same judgment, the workmen also filed appeal being C.A. No. 1855 of 1998. Both
the appeals clubbed together, heard and disposed of by the said common judgment. The
workmen therein filed a writ petition before the High Court of Bombay for a declaration
that the workmen whose names are shown in Ex, 'A' annexed to the said petition, are the
regular workmen of the Management and are entitled to have the same pay scales and
service conditions as are applicable to regular workmen of the Management. It was
further prayed that a direction be given to the Management to absorb the workmen listed
in the said Ex. 'A' with effect from the actual date of their entering into the service of the
canteen of the Management and to pay them all consequential benefits including arrears
of wages etc. 1999 AIR SCW 2740
18. According to the workmen, the workers listed in Ex. 'A' to the petition are working in
the canteen of the Management in its factory at Nagothane, District Raigad in the State of
Maharashtra, and the Management was treating them as persons employed on contract
basis through a contractor named M/s. Rashmi Caterers, who was impleaded in the writ
petition as Respondent 5. It was contended on behalf of the above workmen that the
factory of the Management where the workmen are employed, is governed by the
provisions of the Indian Factories Act, 1948 and the canteen where the said workmen are
employed is a statutory canteen established by the Management as required under the
said provisions of the Act. It was further contended that the said canteen is maintained for
the benefit of the workmen employed in the factory and the Management had direct
control over the said workmen and that Respondent 5, though shown as a contractor, has
no control over the Management, administration and functioning of the said canteen. The
canteen is a part of the establishment of the Management and the workers working in the
canteen are the workmen of the said Management. The further contention of the workmen
was that the work carried on by them in the said canteen is perennial in nature and the
canteen is incidental to and is connected with the establishment of the Management. It is
their further case that the Management is denying the said workmen the status of its
regular employees and was treating them as contract employees contrary to the statutory
provisions and Judicial pronouncements of this Court.
@page-SC1874
19. On behalf of the Management, it was contended before the High Court that it was a
public sector undertaking and it cannot appoint any person in contravention of the
recruitment policy which requires the Management to follow a roster system. Therefore,
apart from the fact that the workmen were not in the regular employment of the said
Management, the absorption or regularisation of the services of the said workmen would
contravene Article 16(4) of the Constitution, and would also contravene the reservation
policy which is applicable for recruitment in the establishment managed by it.
20
. The High Court, following the decision in Parimal Chandra Raha vs. LIC, 1995 Supp
(2) SCC 811 allowed the writ petition holding that since the workmen whose names were
found in Annexure 'A' to the petition are working in the statutory canteen of the
Management, they are entitled to be absorbed in the employment of the said Management
and also issued directions in regard to absorption of the employees. 1995 AIR SCW 2609
21. Being aggrieved by the said judgment and order of the High Court, the Management
has preferred C.A No. 1854 of 1998 and being aggrieved by the conditions imposed while
directing the absorption of the employees, on behalf of the workmen C.A. No. 1855 of
1998 has been preferred before this Court.
22
. Para 10 of the said decision shows that while considering at the SLP stage for granting
leave, a two-Judge Bench of this Court observed that the questions involved in these
appeals are of considerable importance and it will be desirable if the same is decided by a
Bench of three Judges. Consequently, both the appeals were heard by a three-Judge
Bench. Similar contentions as raised in the case on hand were raised on behalf of the
Management and Workmen. No doubt, taking note of the definition in S. 2(1) of the
Factories Act which defines "worker", did not accept the workmen's contention that
employees of a statutory canteen ipso facto become the employees of the establishment
for all purposes. After considering Parimal Chandra Raha's case (supra) and M.M.R.
Khan vs. Union of India, 1990 Supp SCC 191 and Reserve Bank of India vs. Workmen,
(1996) 3 SCC 267, this Court concluded that the workmen of a statutory canteen would
be the workmen of the establishment for the purpose of the Factories Act only and not for
all other purposes. Had the three-Judge Bench stopped therein, we have no other option
except to apply the principle as stated in General Labour Union (Red Flag) case (supra),
Vividh Kamgar Sabha case (supra), Cipla Ltd. case (supra), Sarva Shramik Sangh case
(supra) and Oswal Petrochemicals. However, from para 23 onwards, the three-Judge
Bench discussed the main issue with which we are concerned, namely, "whether from the
material on record it could be held that the workmen are, in fact, the employees of the
Management for all purposes". Since the factual details that arose in the Indian
Petrochemicals case (supra) are identical to the case on hand, we reproduce the following
discussion and the ultimate conclusion : 1995 AIR SCW 2609
1990 AIR SCW 937
1996 AIR SCW 1298
2001 AIR SCW 170
2001 AIR SCW 929
2003 AIR SCW 5989
1999 AIR SCW 2740
"25. Though the canteen in the appellant's establishment is being managed by engaging a
contractor, it is also an admitted fact that the canteen has been in existence from the
inception of the establishment. It is also an admitted fact that all the employees who were
initially employed and those inducted from time to time in the canteen have continued to
work in the said canteen uninterruptedly. The employer contends that this continuity of
employment of the employees, in spite of there being a change of contractors, was due to
an order made by the Industrial Court, Thane, on 10-11-1994 wherein the Industrial Court
held that these workmen are entitled to continuity of service in the same canteen
irrespective of the change in the contractor. Consequently, a direction was issued to the
Management herein to incorporate appropriate clauses in the contract that may be entered
into with any outside contractor to ensure the continuity of employment of these
workmen. The Management, therefore, contends that the continuous employment of these
workmen is not voluntary. A perusal of the said order of the Industrial Court shows that
these workmen had contended before the said Court that the Management was indulging
in an unfair labour practice and in fact they were employed by the Company. They
specifically contended therein that they are entitled to continue in the employment of
@page-SC1875
the Company irrespective of the change in 'the contractor. The Industrial Court accepted
their contention as against the plea put forth by the Management herein. The employer
did not think it appropriate to challenge this decision of the Industrial Court which has
become final. This clearly suggests that the Management accepted as a matter of fact that
the respondent workmen are permanent employees of the Management's canteen. This is
a very significant fact to show the true nature of the respondents employment. That apart,
a perusal of the affidavits filed in this Court and the contract entered into between the
Management and the contractor clearly establishes :
(a) The canteen has been there since the Inception of the appellant's factory.
(b) The workmen have been employed for long years and despite a change of contractors
the workers have continued to be employed in the canteen.
(c) The premises, furniture, fixture, fuel, electricity, utensils etc. have been provided for
by the appellant..
(d) The wages of the canteen workers have to be reimbursed by the appellant.
(e) The supervision and control on the canteen is exercised by 'the appellant through its
authorised officer, as can be seen from the various clauses of the contract between the
appellant and the contractor.
(f) The contractor is nothing but an agent or a manager of the appellant, who works
completely under the supervision, control and directions of the appellant.
(g) The workmen have the protection of continuous employment in the establishment.
26. Considering: these factors cumulatively, in addition to the fact that the canteen in the
establishment of the Management is a statutory canteen, we are of the opinion that in the
instant case, the respondent workmen are in fact the workmen of the appellant
Management.
27. At this stage, it is necessary to note another argument of Mr. Andhyarujina that in
view of the fact that there is no abolition of contract labour in the canteen of the
appellant's establishment, it is open to the Management to manage its canteen through a
contractor. Hence, he contends that by virtue of the contract entered into by the
Management with the contractor, the respondent workmen cannot be treated as the
employees of the Management. This argument would have had some substance if in
reality the Management had engaged a contractor who was wholly independent of the
Management, but we have come to the conclusion on facts that the contractor in the
present case is engaged only for the purpose of record and for all purposes the workmen
in this case are in fact the workmen of the Management. In the background of this
finding, the last argument of Mr. Andhyarujina should also fail."
23. In the light of above background, let us consider the factual details available and as
asserted in the complaint of the Union filed in our case. In order to establish the specific
plea raised in the complaint, the complainant has examined one Dagdu Deshmukh and
Shankar Nam Patil, Both of them are working in the canteen. According to Deshmukh, he
Joined the Company on 221.2.1982 and according to Shankar he is in the service of the
Company from 1.11.1989. The Complainant has enclosed a list of the employees working
in the canteen in the Annexure to the complaint. The Industrial Court, on perusal of the
said list, found that they joined the service in different years since 1978 till 1992. Most of
them have worked for more than 10 years. The Industrial Court has also concluded that
their dates of joining mentioned in Annexure to the complaint have not been disputed by
the Company. It is also demonstrated before the Court that there were number of
contractors since 1971 till the contract was taken by M/s. Gambhir Caterers, since 1965
to 1968 one Mehra was the canteen contractor. Thereafter, in 1968, one S.S.Shetty
worked as a Canteen Contractor. He was running the said canteen for 14 years.
Thereafter, the Universal Caterer was the Canteen Contractor from 1981 to 1995. After
1995, Gambhir Caterer is the Canteen Contractor. It is relevant to mention arid in fact not
disputed that in spite of the changes in the Canteen Contractor the service of the canteen
employees continued and they were not issued fresh appointment orders by any of the
canteen contractors including the last one; namely, Gambhir Caterer.
24. The Industrial Court analysed the evidence of Complainant's witness and also the
evidence of the Company. From the evidence and other materials, the Court noted the
following information :
@page-SC1876
(a) Canteen has been in existence since 1965.
(b) Canteen employees were working in four shifts.
(c) Canteen is situated in the company premises.
(d) The company has provided utensils, gas and other articles like chair, table, etc.
(e) The company has also provided room to the canteen employees for their residential
complex.
(f) Seven to Eight employees who are bachelors are residing in the said room.
(g) The company has provided electricity and water. Respective charges are not being
deducted from the wages of the employees.
(h) The company has also supplied umbrellas for the rainy season.
(i) The company is paying maintenance charge and electricity charge and other expenses
of the canteen.
(j) All the facilities including premises to the canteen are provided by the company.
(k) The wages of employees of the canteen are reimbursed by the company.
(l) The company is purchasing the food items.
(m) Whenever there is rise in the wages of the employees, it is the company who is to pay
the same.
(n) The company is providing three sets of uniforms to the employees and also providing
service washermen.
(o) The employer's contribution P.F. is reimbursed by the company.
(p) In the past the company has regularized some of the employees working in the
canteen.
From the above, it is clear that all the facilities to the canteen are provided by the
company.
25
. It is true that Sridhar Bhandari, the Manager of Gambhir Caterer, in his evidence has
stated that the workers are keeping the attendance card, muster roll (Exs.C-12 and C-13)
and payment details of Gambhir Caterer. In view of the above statement, the Industrial
Court ventured to find legitimate control over the activities of the canteen employees,
While considering the said issue, the Court verified various terms of agreement dated 28-
11-1995. The relevant terms have been reproduced in para 49 of the order of the
Industrial Court which clearly show that it is the duty of the company to provide canteen
premises free of rent along with free water, electricity, fuel, furniture, fixtures, crockery
and all cooking utensils. It further shows that the company has fixed the rate of meals,
eatables, snacks, tea and beverages etc. As rightly pointed out by the Industrial Court,
apart from the evidence let in on the side of the union and the company from the terms of
contract, it is clear that it is the duty of the company to provide sufficient premises,
furniture, fuel, gas, electricity, water and also laid down several procedure as to how food
items to be supplied. As rightly concluded by the Industrial Court, the company has
clearly laid down the quality, quantity, the rates and manner of supplying food articles.
After adverting to clause (d)(1)(2) of the agreement, the Industrial Court has concluded
that though responsibility is cast upon the contractor to make payment of wages, P.F.
contribution etc. on submission of the bills, the amounts are to be paid/reimbursed by the
company. The above details clearly show that though certain amounts are being paid by
the contractor, in the real sense, ultimately, it is the company which pays all the amounts.
From the evidence and the materials, it is also clear that the activities of the workmen in
the canteen, their suitability to work, physical fitness are ultimately controlled by the
company. In those circumstances, the Industrial Court is perfectly right in arriving the
conclusion that the evidence coupled with the terms of agreement show that the contract
is nothing but paper agreement. As stated earlier, in spite of change of several contractors,
neither the workmen were replaced nor fresh appointments were made. On the other
hand, same workmen were continuing even on the date of filing of the complaint. Taking
note of all the above-mentioned relevant materials, special circumstances and most of the
employees are working for more than 10-15 years and finding that there is no valid
reason for the company to deny their permanency, the Industrial Court rightly concluded
that the company has committed unfair labour practice under Item 9 of Schedule IV of
the MRTU and PULP Act, 1971 and issued appropriate directions. With the materials
placed, we are also of the opinion that even though the 1999 AIR SCW 2740
@page-SC1877
record shows that canteen is being run by the contractor, ultimate control and supervision
over the canteen is of the Company. Inasmuch as the facts on hand are identical to the
decision in Indian Petrochemicals Corpn. Ltd. case (supra) which is a three-Judge Bench
decision which was not cited before any of the decisions relied on by the company, in
view of the circumstances narrated in the earlier paras, we accept the conclusion arrived
by the Industrial Tribunal.
26. Coming to the impugned order of the High Court, it is argued that in spite of the
earlier direction of this Court in SLP (C) No. 9244 of 1999, the High Court has not
adverted to the relevant aspects and committed the same error in confirming the order of
the Industrial Court. In the light of the said contention, we have gone through the
impugned decision of the High Court, which clearly shows that the High Court was
conscious about the observation of this Court. The High Court order further shows that it
has adverted to the relevant details furnished before the Industrial Court and analysed the
same and finally after recording that the finding of fact arrived by the Industrial Court
cannot be termed as perverse and they are based on proper appreciation of evidence and
sound reasoning dismissed the Letters Patent Appeal. We do not see any error or infirmity
in arriving such conclusion. On the other hand, as discussed above, we are in entire
agreement with the conclusion arrived by the Industrial Court and affirmed by the High
Court.
27
. In the light of what has been stated above and in view of abundant factual details as
mentioned in para 24 of this judgment as well as the reasonings as laid down in Indian
Petrochemicals Corpn. Ltd. case (supra), we reject the stand taken by the appellant-
Company. Accordingly, the appeal fails and the same is dismissed. Inasmuch as the
Industrial Court has issued directions as early as on 15-10-1998 and not implemented due
to court proceedings, we direct the appellant-Company to implement the same within a
period of three months from the date of receipt of copy of this judgment. No costs.
1999 AIR SCW 2740
Appeal dismissed.
AIR 2008 SUPREME COURT 1877 "Kuchibotla Saran Kumar v. State of A. P."
Kuchibotla Saran Kumar v. State of A.P.
Penal Code (45 of 1860), S.300 - MURDER - EVIDENCE - Murder - Circumstantial
evidence - Accused strangulating his would be wife on her refusal to go ahead with
marriage - Evidence of parents of deceased and independent witnesses that accused had
threatened to kill deceased if marriage is not performed - Accused and deceased found to
be taking animately near place of incident on fateful day - Accused absconding and
attempting to hide his identity after day of incident - Accused liable to be convicted for
murder. (Para 5)
Shiv Kumar Suri, for Appellant; Anoop G. Choudhari, Mrs. June Choudhary, Sr.
Advocates, Devendra Kumar Singh, Mrs. D. Bharathi Reddy, for Respondent.
Judgement
1. HARJIT SINGH BEDI, J. :-This appeal by way of special leave arises out of the
following facts.
2. P. Sesha Sudha, the deceased herein, got her M.Tech. Degree from the J.N.T.U.,
Hyderabad and joined as an ad hoc Lecturer in the college of which, PW1 P.
Ramakrishna Reddy was the Principal. As the parents of the deceased were keen that she
should settle down in marriage, they were considering some suitable boy for that purpose.
She accordingly informed her parents PW 6 P. Koorma Rao and PW 7 Smt. P. Nalini that
she wanted to marry the accused and though initially they were reluctant about her
choice, they accepted her proposal on her insistence. The matter was accordingly
discussed with his parents as well and the marriage was fixed at the Green Park Hotel at
Vishakapatnam for 23rd March, 2000 and an advance of Rs.2,000/- was also paid to
confirm the booking. It appears, however, that before the marriage could be solemnized,
differences arose between the two and they informed PW6, the father of the deceased that
they were not keen to go ahead with the marriage. The accused however telephoned PW6
separately and informed him that though the deceased was not inclined
@page-SC1878
towards the marriage, he was still interested in doing so and that he would not marry any
one else. At about 11 a.m., on 9th February 2000, PW2 J. Bhagwan Reddy informed PW1
P. Ramakrishna Reddy that they had found the dead body of P. Sesha Sudha lying in the
Electrical Engineering Laboratory. Enquiries were made by PW1 P. Ramakrishna Reddy
and PW2 J. Bhagwan Reddy from several persons and they were told that on the previous
day the accused and the deceased had been seen together. The Police which had also been
informed arrived at the Laboratory at about 11.30 a.m. on which PW1 gave a type written
report Ex.P.1 to PW19 P. Santosh Kumar and the formal FIR was registered under
Section 302 of the IPC naming the accused as the assailant. The necessary enquiries were
also made by PW19 at the place of incident and the dead body was thereafter sent for the
post-mortem examination. The post-mortem held on 10th February, 2000 by PW13 Dr. B.
Jagan Mohan, Assistant Professor, Forensic Medicine, Osmania Medical College,
Hyderabad revealed that the cause of death was strangulation by a ligature. PW19 also
made a search for the accused and he was ultimately arrested from Vishakapatnam from
his uncle's house at about 3.30 p.m. on 13th February, 2000. On the interrogation of the
accused, several articles, Exs. P-10, P-11, P-13, P15 and P-18 were recovered from him.
On the completion of the investigation, the accused was charged for an offence
punishable under Section 302 of the IPC. He pleaded innocence and claimed trial.
3. The prosecution examined 19 witnesses in all i.e. PW1 to PW19 and also produced
several documents in support of its case. PW5 V. Subbalaxmaiah and PW9 Jaipal Reddy
however did not support the prosecution and they were declared hostile. The trial court
held that the deceased and the accused were residents of Vishakapatnam and that they had
been in love since their college days and that the love had fructified into a proposal for
marriage which had also been fixed for 23rd March, 2000 at the Green Park Hotel at
Vishakapatnam. The trial court also observed that the accused, in his statement recorded
under Section 313 of the Cr.P.C. had in fact admitted the marriage proposal but denied
that any dispute had arisen subsequently leading to its break up. The court, however,
observed that the parents of the deceased, PWs.6 and 7 had confirmed that their daughter
had called off the marriage as the accused had been insulting and beating her in the
presence of strangers and that the accused had even telephoned them on several occasions
and threatened that in case their daughter did not marry him and were to marry some one
else, he would kill her and that this part of the evidence had been confirmed by PW16 A.
Srinivas Rao as well. Corroboration for this statement was also taken from the evidence
of Satish Singh, PW15 an HRD Consultant who knew the deceased and the accused and
deposed that they were proposing marriage and that a common friend Vani Prasad (who
too was the family friend of the couple) had informed him that the deceased had called
him in the first week of January, 2000 to her hostel and on going there, he had found the
deceased and the accused talking to each other and while the accused was insisting that
they should get married, the deceased was refusing to do sb. PW15 also deposed that
some letters which the deceased had written to the accused had been returned to her on
his insistence. The Court further found that the deceased had left Vishakapatnam on 5th
February, 2000 and returned to Hyderabad by the Godavari Express on the morning of
8th February, 2000 and had gone to her college but as it was the sports day, no classes
had been held and that the accused had telephoned PW6 P. Koorma Rao seeking to
ascertain the programme of the deceased and after having done so, had gone to her
college and thereafter committed her murder with the chunni that she had been wearing.
The Court also concluded that the conduct of the accused also pointed to his guilt as he
had gone to his flat at Ramanthapur, taken his luggage, left his scooter in the house of his
relative in Marredpally, Secunderabad and then gone on to Jangan and wandered around
aimlessly at Nellore and Chennai and had ultimately returned to Vizag and on 13th
February, 2000 at about 3.30 p.m. and had been arrested by PW19 P. Santosh Kumar and
thereafter several incriminating articles had been recovered from his residence. The court
also believed the statement of PW3 A. Hanumantha Rao, a Lab Technician and PW-2 J.B.
Reddy, the Head of Department where the deceased had been employed as an ad hoc
Lecturer that they had seen the accused and the deceased talking animatedly
@page-SC1879
with each other near the Scooter Parking of the Department at about 11 or 11.30 a.m. on
8th February, 2000 and observed that these were independent witnesses who had no axe
to grind against the accused and that from the evidence of PW3 A. Hanumantha Rao and
PW5 V. Subbalaxmaiah, it was clear that the Laboratory had been locked up at 4.30 p.m.
on 8th February, 2000 and that the dead body could not be noticed earlier as it was lying
in a place which was not visible from the door. The Court relied on the medical evidence
and observed that the presence of the ligature mark over the neck and other injuries fully
supported the case of the prosecution regarding the cause of death and the manner in
which it had been caused. The court found further corroboration from the recoveries at
the instance of the accused, more particularly the relevant entries in the arrival and
departure registers at the Shiva Hotel (Exs.P-62 and 63) where the accused had stayed
under the assumed name of K.V. Reddy on 11th February, 2000 from 1.00 p.m. to 9.00
p.m. and the arrival and departure registers of hotel Sunder, Nellore Ex.P65, copy of the
bill dated 11th February, 2000 Ex.P-66 and the advance receipt Ex.P-67 which supported
the prosecution story that the accused had absconded and had been hiding from the
police. The court also held from the evidence of PW10, the General Manager of the
APTECH Institute where the accused was working and who had produced documents to
show that the accused had applied for 2 days leave for 7th and 8th February, 2000, and
that he was to be out of station on 6th February, 2000 and that he had intended to go to
Hyderabad and that he had reached Hyderabad on 7th February, 2000 and on ascertaining
from her parents, the programme of the deceased, had returned to Vishakapatnam on 8th
February, 2000 and gone to the college and met her. The trial court accordingly convicted
and sentenced the accused for an offence punishable under section 302 of the IPC and
sentenced him to undergo imprisonment for life and to pay a fine of Rs.500/- and in
default of payment of fine, simple imprisonment for three months. The matter was taken
in appeal before the High Court which has confirmed the findings of the trial court
leading to the present appeal by way of special leave.
4. We have heard the learned counsel for the parties.
5. The learned counsel for the appellant has reiterated the arguments raised before the
trial court. We now re-examine the evidence. The fact that the couple had proposed to
marry is virtually admitted and is even otherwise proved on record by ample evidence.
The fact that the marriage had been fixed for 23rd March, 2000 as also the fact that an
advance payment for the booking of the marriage venue, that is the Green Park Hotel at
Vishakapatnam had also been made, is proved on record. We also find that there is a clear
cut motive for the murder as the parents of the deceased, as also several other witnesses
who knew the couple have categorically deposed that the appellant had warned that in
case the deceased would not marry him she would be killed as he would not tolerate her
marriage to anyone else. In addition to this, it is clear from the evidence of PW 19 that he
had recovered certain love letters from the accused written to the deceased by the accused
and that these letters along with the admitted hand writing of the accused had been sent to
the Forensic Science Laboratory which opined in its report Ex.P-70 that the writings were
of the same person. We also find that the conduct of the accused in absconding and
attempting to hide his identity after the murder stands proved by the fact that he had
registered in Hotel Shiva, Chennai and Hotel Sunder at Nellore under the assumed name
of K.V. Reddy and these entries were also proved as being in the handwriting of the
accused in the report Ex.P-70. It is significant that the accused had admitted during the
course of statement under Section 313 of the Cr.P.C that most of the items which had
been sent to the Forensic Science Laboratory had been seized by the police at
Vishakapatnam. It has also been clearly revealed that the deceased and the accused had
been seen together on the day of the murder talking animatedly in the premises of the
College by several witnesses. We also find that the trial court and the High Court have
discussed the evidence threadbare. We find no fault in the judgments of the courts below.
The appeal is accordingly dismissed.
Appeal dismissed.
@page-SC1880
AIR 2008 SUPREME COURT 1880 "Najeeb v. State of Kerala"
(From : Kerala)*
Najeeb and Ors. v. State of Kerala.
Kerala Land Reforms Act (1 of 1964), S.84, S.81(1)(t)(iii) - LAND REFORMS - LAND
CEILING - WAKF - Land ceiling - Holding of declarant - Determination - Wakf land
held by declarant as Mutawalli - Cannot be included in his holding on ground of non-
satisfaction of conditions in S.81(1)(t)(iii).
C.R.P. No. 950 of 1992, D/-03-04-2000 (Ker), Reversed.
Section 81(1)(t)(iii) relates to exemption to Universities. Public Institutions and Trust.
The question of exemption would arise only when land in excess of per missible limit is
held by a Public Trust and exemption is sought for under S. 81(1)(t). The Proviso to S.
81(1)(t)(iii) has no role to play while dealing with the question whether the land was to be
included in the holding of the individual-declarant. As such once the declarant holding
Wakf land as its Mutawalli has shown that the land in question was in name of Wakf, the
Wakf land cannot be refused to be excluded from his individual holding on ground that he
has failed to show that the income arising out of Wakf land was exclusively used for
purpose of the Wakf.
C.R.P. No. 950 of 1992, D/-03-04-2000 (Ker), Reversed. (Paras 9, 10)
T.L.V. Iyer, Sr. Advocate, T.G. Narayanan Nair with him, for Appellants; P.V. Dinesh and
Sindhu T.P., for Respondent.
* C.R.P. No. 950 of 1992, D/- 3-4-2000 (Ker).
Judgement
1. Dr. ARIJIT PASAYAT, J. :- Challenge in this appeal is to the judgment of the learned
Single Judge of the Kerala High Court allowing the Civil Revision Petition.
2. Respondent-State of Kerala filed a Civil Revision Petition under Section 103 of the
Kerala Land Reforms Act. 1963 (in short the 'Act'). Challenge in the revision was to the
order of the Taluk Land Board, dated 22-2-1991 holding that the declarant was liable only
to surrender an extent of 0.26.250 acres of land. Stand of the State was that the property
held by the so-called Wakf of which the declarant was Muthavalli was to be included
while determining the extent of land held by the predecessors of the appellant.
The predecessor of the appellants (hereinafter called the declarant) filed a statement
under Section 85 of the Act. After an enquiry the Taluk Land Board determined that the
declarant held an extent of 2.5.700 acres of land in excess of the ceiling area. An extent of
2.55 acres was taken possession of. On the ground that the declarant had failed to
disclose certain other lands held by him, the Taluk Land Board reopened the matter and
after hearing the declarant passed a revised order dated 13-12-1977 holding that a further
extent of 5.42.500 acres of land is also liable to be surrendered by the declarant. The
declarant filed C.R.P.4053 of 1977 before the High Court. The High Court held that
certain lands acquired by the declarant after 1-1-1970 were also sought to be included by
the Taluk Land Board and the same could not be done. Apparently, the High Court took
the view that such subsequent acquisitions could be considered only in a proceeding
initiated under Section 87 of the Act. Deleting the extent of land acquired after 1-1-1970
the High Court directed the Taluk Land Board to consider whether an extent of 3.13 acres
allegedly set apart for a Madrassa was liable be included or was liable to be exempted on
the ground that it was a Wakf property. The High Court gave an opportunity to the
declarant to establish that the income from the said extent wholly went to the Wakf and
not to the personal account of the declarant. Thus clarifying that in the present proceeding
the Taluk Land Board was only concerned with the land held by the declarant as on 1-1-
1970 the High Court directed a reexamination of the claim regarding 3.13 acres of land.
The Taluk Land Board thereafter passed an order on 13-12-1982 holding that the
declarant had not produced any reliable evidence to show that the income from properties
allegedly set apart for the Madrassa went to the Wakf except two registers said to be the
account books of income and expenditure which was found to be unreliable. The Taluk
Land Board held that the registers were seen to be written up recently and there was
nothing to show that those accounts related to the properties in question. The Taluk Land
Board also entered a finding that its enquiry revealed that only a
@page-SC1881
share of the income goes to the Madrassa and the major portion goes to the personal
account of the declarant. The Taluk Land Board therefore held that in the absence of
evidence, properties could not be deleted from the account of the declarant. The Taluk
Land Board thereupon directed that the declarant was bound to surrender an extent of
2.93.500 acres of land. The declarant filed another Revision before the High Court as
C.R.P.3618 of 1982. Pending the revision the declarant died and his legal representatives
were impleaded as additional petitioners. By order dated 7-7-1989 the High Court held
that a fresh enquiry as ordered by it has not been conducted by the Taluk Land Board
regarding the claim of exclusion on the ground of the lands being dedicated to a Wakf and
the reliance on the report of the authorised officer which the declarant alleged was
prepared without notice to him was not sufficient to disallow the claim of the declarant.
The contention of the declarant that the account books produced by him establish his case
noticed by the High Court which directed the Taluk Board to reconsider the question
whether the entire income from the property in dispute was appropriated for the benefit of
the Wakf and whether the property was liable to be exempted under Section 81(1)(t)(iii)
of the Act. Thereafter the Taluk Land Board did not consider whether the declarant has
adduced any evidence to establish the acceptability of the books of account and whether
they are acceptable. It simply referred to the report of an authorised officer to the effect
that a Madrassa was functioning, which was one registered with the Kerala Wakf Board
and that the same was being managed by its Muthavalli. It also noticed that according to
the report, the income from certain lands having an extent of 2.67.250 acres, was being
used for the purpose of the Madrassa. Report of the authorised officer was accepted and
the Taluk Land Board proceeded to exempt 2.67.250 acres of land under Section 81(1)(t)
(iii) of the Act. Thus the Taluk Land Board held that the declarant was liable to surrender
only an extent of 0.26.250 acres of land.
4. Stand of the State before the High Court was that burden to show that the land was
taken in by the order, inclusion of which has been upheld by the High Court earlier, was
on the declarant who has failed to discharge that burden. It was further submitted that the
accounts were clearly written up at a stretch and there was no material to show that
income from the land was wholly spent for the benefit of the Wakf. The High Court with
reference to Section 81(1)(t)(iii) of the Act held that it had to be shown that the land was
owned or held by a public trust which expression included a Wakf. The proviso provides
that the exemption is available to a public trust only if the entire income of such lands is
appropriated for the trust concerned. It was concluded that there was nothing to show that
these lands were owned or held by a public trust on the appointed day, i.e. 1-1-1970 to
which date exemption under Section 81 relates. It was further held that the declarant
failed to prove that the land in question qualified for the exemption. Accordingly, as
noted above, Civil Revision was allowed.
5. Learned counsel for the appellants submitted that the basic approach of the High Court
was wrong.
6. Reference was made to Section 81(1)(t)(iii) which relates to exemption. The proviso
appears in the Chapter III which deals with the exemption. In the instant case, the Wakf
was not claiming any exemption. Therefore, the requirement of Section 81(1)(t)(iii) could
not have been pressed into service by the High Court. The State's stand in this regard was
thoroughly misconceived. It was also pointed out that in the earlier round of litigation, it
has been clearly held that the Wakf in question was a public trust. Conclusions to the
contrary made by the High Court are clearly unsustainable.
7. Learned counsel for the respondent-State supported the order.
8. Section 81(1)(t)(iii) on which the High Court has placed reliance reads as follows :
"81 Exemption :- (1) The provisions of this Chapter shall not apply to -
xxxx xxxx
(t) lands owned or held by -
(i) a University established by law; or
(ii) a religious, charitable or educational institution of a public nature; or
(iii) a public trust (which expression shall include a wakf) :
Provided that
(i) the entire income of such lands is appropriated for the University, institution or trust
concerned; and
@page-SC1882
(ii) where the University, institution or trust come to hold the said lands after the
commencement of this Act, the Government have certified previously that such lands are
bona fide required for the purposes of the University, institution or trust, as the case may
be;"
9. It is a part of Chapter III of the Act. As rightly contended by learned counsel for the
appellants it relates to exemption. The proviso has no role to play while dealing with the
question whether the land was to be included in the holding of the declarant. The question
of exemption arises only when land in excess of the permissible limit is held by a public
trust and exemption is sought for on the basis of what is provided in the proviso (i) or (ii).
It is not the case of the State that the Wakf was required to be registered. This Issue was
gone into by the High Court in the earlier round in Civil Revision No.4053/77-B. It was,
inter alia, held as follows :
"Similarly another extent of 3.13 and odd acres was added on to the petitioner's account
by holding that certain properties set apart for Madrasa in 1123 M.E. and others
subsequently acquired were really being enjoyed by the petitioner. The main reason stated
for rejecting the plea that the property belonged to a Wakf is that the Wakf has not been
registered under Wakf Act. I have not been taken through any provisions of the Wakf Act
which lays down that unless registered under that Act, any declaration dedicating
property in the manner required by the Mohammedan Law cannot be given effect to.
Counsel for the petitioner submits that the subsequent acquisitions are in the name of the
Wakf itself, and that the Wakf has also been subsequently registered. The approach made
by the Taluk Land Board is erroneous; it cannot be presumed that there is no Wakf at all
because there is no Registration under the Act. The Taluk Land Board may probably be
justified in enquiring as to whether the income from the property goes to the Wakf, or to
the personal account of the declarant. As I said, the matter requires re-examination. This
finding is therefore set aside and the Taluk Land Board is directed to reconsider the
question in accordance with law."
10. This Court by order dated 20-4-2001 had directed the appellants to file an affidavit
along with documents to show that the property stands in the name of the Madrassa. The
documents have been filed which clearly show that the settlement deeds were executed in
the years 1952, 1958, 1962 and 1966. Authenticity of the documents has not been
questioned.
11. Looked from any angle, the impugned order is clearly unsustainable in view of the
position in law highlighted above.
12. The appeal is allowed but in the circumstances without any order as to costs.
Appeal allowed.
AIR 2008 SUPREME COURT 1882 "Khilari v. State of U. P."
(From : Allahabad)*
-2008.
Khilari v. State of U. P. and Anr.
Criminal P.C. (2 of 1974), S.389 - SENTENCE SUSPENSION - BAIL - APPEAL - Ball
pending appeal against conviction - Accused convicted for murder - Eye-witnesses
alleging that assault on deceased was by iron rod - Bail granted only on ground that some
of ante-mortem injuries could not be caused by iron rod - Order not sustainable. (Paras
11, 12)
2005 AIR SCW 4641 : AIR 2005 SC 3530 : 2005 Cri LJ 4132 : 2005 All LJ 3361 : 2005
AIR - Jhar HCR 2453 (Rel. on) 10
2004 AIR SCW 1581 : AIR 2004 SC 1866 : 2004 Cri LJ 1796 : 2004 AIR - Jhar HCR
1410 10
10
S. Chandra Shekhar, and Jogendra Kumar, for Appellant; Shail Kumar Dwivedi, AAG,
Vishwajit Singh, Javed Mahmud Rao, Kamlendra Mishra, Ms. Vandana Mishra and Ms.
Vibha Dwivedi, for Respondents.
* Cri. A. No. 6724 of 2006, D/- 15-11-2006 (All)
Judgement
2. Challenge in this appeal is to the order
@page-SC1883
passed by a Division Bench of the Allahabad High Court allowing the prayer for bail
made by respondent No.2 during the pendency of Criminal Appeal No.6724 of 2006.
Challenge before the High Court was to the conviction recorded by learned Sessions
Judge, Bagpat, in Sessions Trial No.299 of 2000. Respondent No.2 was convicted for
offences punishable under Section 302 and Section 506 of the Indian Penal Code, 1860
(in short 'IPC') and was sentenced to undergo imprisonment for life and one year for the
offences respectively. He and his two sons were also convicted allegedly for committing
murder of Shiv Kumar. Challenging the conviction appeal has been filed and
simultaneously prayer for being released on bail during the pendency of the appeal was
filed. By the impugned order the Division Bench accepted the prayer and granted bail to
the respondent No.2. The High Court noted that the allegation was that the Incident took
place on 9-3-2000 at about 8.30 p.m. and accused No.2 and his two sons assaulted Shiv
Kumar (hereinafter referred to as the 'deceased') mercilessly with iron rods and he
succumbed to the injuries.
3. The only stand taken was that the ante-mortem injuries on the body of the deceased
included three contusions, one abraded contusion and four lacerated wounds of different
dimensions on various parts of the body which could not have been caused by iron rods.
It was their stand that some unknown assailants caused the injuries to the deceased.
4. The prosecution and the present appellant opposed the prayer for grant of bail and PWs
1 and 2 and the informant had seen the attacks and were eye-witnesses to the occurrence
and PW 3 is an independent witness. Their evidence has been analysed in great detail by
the trial Court who found that credible and cogent. So far as the possibility of injuries is
concerned, that aspect was also examined by the trial Court.
5. After noticing the rival stands the High Court by the impugned order granted the bail
with the following conclusions :
"Looking to all facts and circumstances of the case and particularly the ante-mortem
injuries and after consideration the submissions made on behalf of the parties we find it
appropriate to release appellant on bail during pendency of the appeal."
6. Learned counsel for the informant appellant submitted that the approach of the High
Court is clearly erroneous. After the conviction has been recorded by believing three eye-
witnesses and also discarding the stand that it was not possible by iron rods, the High
Court should not have by a cryptic order directed grant of bail. It was, therefore,
submitted that the impugned order is unsustainable.
7. Learned counsel for the State supported the stand of the informant.
8. Learned counsel for the appellant No.2 accused submitted that it is common
knowledge that appeals in the High Court take long time for disposal. The balance has to
be struck between the right to speedy trial and the need for the accused being in custody.
The High Court has taken note of relevant factors and has granted bail.
9
. The parameters to be adopted while dealing with the application for ball by suspension
of sentence during the pendency of the appeal has been examined by this Court in several
cases. In Kishori Lal v. Rupa and Ors. (2004 (7) SCC 638) it was noted as follows :
2004 AIR SCW 7409
"4. Section 389 of the Code deals with suspension of execution of sentence pending the
appeal and release of the appellant on bail. There is a distinction between bail and
suspension of sentence. One of the essential ingredients of Section 389 is the requirement
for the appellate court to record reasons in writing for ordering suspension of execution
of the sentence or order appealed against. If he is in confinement, the said court can direct
that he be released on bail or on his own bond. The requirement of recording reasons in
writing clearly indicates that there has to be careful consideration of the relevant aspects
and the order directing suspension of sentence and grant of bail should not be passed as a
matter of routine.
5. The appellate court is duty-bound to objectively assess the matter and to record reasons
for the conclusion that the case warrants suspension of execution of sentence and grant of
bail. In the instant case, the only factor which seems to have weighed with the High Court
for directing suspension of sentence and grant of bail is the absence of allegation of
misuse of liberty during the earlier period when the accused-respondents were on bail."
@page-SC1884
10
. In Anwari Begum v. Sher Mohammad and Anr. (2005 (7) SCC 326) it was, inter alia,
observed as follows : 2005 AIR SCW 4641
Paras 8 and 9
"7. Even on a cursory perusal the High Court's order shows complete non-application of
mind. Though detailed examination of the evidence and elaborate documentation of the
merits of the case is to be avoided by the Court while passing orders on bail applications,
yet a court dealing with the bail application should be satisfied as to whether there is a
prima facie case, but exhaustive exploration of the merits of the case is not necessary. The
court dealing with the application for bail is required to exercise its discretion in a
judicious manner and not as a matter of course.
8. There is a need to indicate in the order, reasons for prima facie concluding why bail
was being granted particularly where an accused was charged of having committed a
serious offence. It is necessary for the courts dealing with application for bail to consider
among other circumstances, the following factors also before granting bail, they are :
1. The nature of accusation and the severity of punishment in case of conviction and the
nature of supporting evidence;
2. Reasonable apprehension of tampering of the witness or apprehension of threat to the
complainant;
3. Prima facie satisfaction of the Court in support of the charge.
Any order dehors of such reasons suffers from non-application of mind as was noted by
this Court, in Ram Govind Upadhyay v. Sudarshan Singh and Ors. [(2002) 3 SCC 598];
Puran etc. v. Rambilas and Anr. etc. [(2001) 6 SCC 338)] and in Kalyan Chandra Sarkar
v. Rajesh Ranjan alias Pappu Yadav and Anr. [JT 2004 (3) SC 442]." 2002 AIR
SCW 1342
2001 AIR SCW 1935
2004 AIR SCW 1581
11. As the extracted portion and the High Court's order goes to show there was complete
non-application of mind and non-consideration of the relevant aspects.
12. The impugned order, therefore, is not sustainable and is dismissed. The bail granted to
the respondent No.2 is cancelled. The matter is remitted to the High Court for fresh
consideration in accordance with law.
13. The appeal is allowed to the aforesaid extent.
Order accordingly.
AIR 2008 SUPREME COURT 1884 "P. Swaroopa Rani v. M. Hari Narayana"
Civil Appeal Nos. 1734 and 1735 of 2008 (arising out of SLP (C) Nos. 15670 and 16215
of 2006), D/- 4 -3 -2008.
P. Swaroopa Rani v. M. Hari Narayana @ Hari Babu.
Civil P.C. (5 of 1908), S.96 - APPEAL - CRIMINAL PROCEEDINGS - APPELLATE
COURT - Appeal - Stay to criminal proceedings - Criminal proceedings for forgery
initiated on basis of observations made in civil suit - Appeal against civil Court's decree -
Appellate Court can certainly go into correctness of observations made - But filing of an
independent criminal proceeding is not barred under any statute - Stay granted to criminal
proceedings - Improper. (Paras 12, 15, 16, 17, 19)
2005 AIR SCW 1929 : AIR 2005 SC 2119 : 2005 Cri LJ 2161 : 2005 AIR -- Jhar HCR
1526 (Ref.) 13
(2005) 12 SCC 226 (Ref.) 13
(2004) 13 SCC 421 (Disting.)16
AIR 1954 SC 397 : 1954 Cri LJ 1019 (Ref.) 13, 14
V.R. Reddy, Sr. Advocate, M. Vijaya Bhaskar and P.S. Narsimah, for Appellant; Bhaskar
Gupta, Sr. Advocate, Y. Raja Gopala Rao and Ms. Y. Vismai, for Respondent.
* A. S. M. P. No. 1067 of 2006 in A. S. No. 271 of 2006, D/- 17-7-2006 (AP).
Judgement
2. Appellant is the owner of a cinema theatre. An agreement of sale dated 28-03-2001
was entered into by and between the parties hereto in respect of the said property for a
consideration of Rs. 64 lakhs. Respondent made part payment of Rs. 32,97,000/- of the
said amount. A suit for specific performance of the contract was filed as no deed of sale
was executed in terms of the said agreement dated 28-03-2001.
3. During hearing of the said suit, a receipt was filed showing payment of a sum of Rs.
4,03,000/- to the appellant herein. The said receipt was marked as Exhibit A. 15. On the
said basis, allegedly, possession of the theatre was obtained by the respondent. The
learned Trial Judge, however, dismissed the said suit by an order dated 29-04-2006 inter
alia opining :
@page-SC1885
"45.Therefore, in the circumstances I find that there is no evidence produced by the
plaintiff which is sufficient to outweigh the opinion and the evidence of D.W.4. Further it
is to be seen that though after execution of Ex. A. 15 he came to know about huge debts
by defendant under the said mortgage deeds, taxes dues and other statutory liabilities and
that defendant were not co-operating and adopted evasive attitude in clearing the debts,
dues and other liabilities and were not allowing him to discharge the mortgage debt to the
Union Bank of India, he kept quiet till filing of the suit, without even issuing a notice to
the defendant. Even if he was in possession as claimed by him with effect from the date
of Ex.A. 15, in view of the huge debts and liabilities, which to his knowledge the
defendant was not in a position to discharge and not making any efforts to discharge the
same he would not have kept quiet in the normal circumstances without issuing any
notice to the defendant. Thus there is no mention about this Ex.A. 15 dated 18-09-2002 in
the written form anywhere till he filed the plaint on 05-12-2002. Therefore, these
circumstances also render the oral evidence of P.W. 1 and P.W.2 highly doubtful on this
aspect. Therefore, in these circumstances I find that the evidence of D.W.4 and the
contents of Ex.C.4 opinion and Ex.C.5 reasons for opinion are sufficient to prove that the
signature of D.W. 1 is forged in Ex.A. 15. Therefore in the circumstances it shall be held
that the contention of the plaintiff and the evidence of P.W. 1 that on 18-09-2002 he paid
Rs. 4,03,000/- towards part of sale consideration and D.W. 1 delivered possession of
plaint schedule theatre to him is not true. Therefore, in the circumstances it also shall be
held that the plaintiff failed to prove that he came into possession of the plaint schedule
property in pursuance of the part performance of the contract covered by Ex.A.4."
It was furthermore opined :
"Therefore, following this decision of the Honourable High Court of Andhra Pradesh it
shall be held that the plaintiff, since failed to prove that he paid Rupees 4,03,000/-towards
part payment of sale consideration of D.W. 1 and she delivered possession of plaint
schedule to him on 18-09-2002 and passed Ex.A. 15 receipt. It shall be held that though
the time is not the essence of the contract and the plaintiff is justified in not making
further remaining part of sale consideration by 31-12-2001, since he approached the court
with unclean hands he cannot be granted a decree for specific performance. Since it is a
specific case that he came into possession of plaint schedule property in part performance
of Ex. A.4 agreement of sale, on 18-09-2002 under Ex. A. 15 and failed to prove the
same, it is irrelevant and not necessary to decide how he came into possession of the
plaint schedule property. Therefore, in the circumstances he is also not entitled for
protection under section 53-A of Transfer of Property Act and hence is not entitled to
seek perpetual injunction."
4. Appellant, in view of the said observations, lodged a First Information Report, which
was marked as Crime No. 79 of 2006, in the Kadapa Police Station alleging that the said
receipt (Ex. A. 15) was a fabricated document.
5. Respondent, however, preferred an appeal against the said judgment and decree dated
29-04-2006. In the said appeal preferred by the respondent, an application for interim
stay of the operation of the said judgment was filed. A Division Bench of the High Court
by a judgment and order dated 24-05-2006 directed :
"Going by the principle that an appeal is a continuation of the suit and the state of affairs
obtaining during the pendency of the suit must be continued, as far as possible, during the
appeal also, we grant an interim direction to the effect that the petitioner shall be entitled
to remain in possession of the suit schedule theatre, subject to the condition that it shall
deposit a sum of Rs. 30,000/- (Rupees thirty thousand only) per month, commencing
from June 2006, until further orders. It shall also be open to the respondent to withdraw
the amount without furnishing any security."
6. Respondent filed Miscellaneous Petition in the said appeal, being ASMP No. 995 of
2006, for modification of the order dated 24-05-2006, which was allowed by an order
dated 17-07-2006.
7. By another order dated 17-07-2006, the High Court stayed the proceedings in Crime
No. 79 of 2006.
8. Appellant is, thus, before us.
9. Mr. V. R. Reddy, learned Senior Counsel appearing on behalf of the appellant in Civil
Appeal arising out of SLP (C) No. 15670 of 2006, would submit that the High Court
@page-SC1886
committed a serious illegality in staying the investigation of a criminal case.
10. Mr. P. S. Narsimah, learned counsel appearing on behalf of the appellant in Civil
Appeal arising out of SLP (C) No. 16215 of 2006, would submit that keeping in view the
observations made by the learned Trial Judge and furthermore in view of the fact that the
respondent had not approached the court with clean hands, no interim order in his favour
should have been passed.
11. Mr. Bhaskar Gupta, learned senior counsel appearing on behalf of the respondent, on
the other hand, submitted that the court has power to grant injunction even in respect of a
proceeding which is stricto sensu not the subject-matter of the proceedings before the
High Court.
12. The High Court indisputably is a final court of fact. It may go into the correctness or
otherwise of the findings arrived at by the learned Trial Judge. A' fortiori it can set aside
the findings of the court below that the Ex. A. 15 is a forged document or its authenticity
could not be proved by the respondent.
13
. It is, however, well-settled that in a given case, civil proceedings and criminal
proceedings can proceed simultaneously. Whether civil proceedings or criminal
proceedings shall be stayed depends upon the fact and circumstances of each case. [See
M.S. Sheriff v. State of Madras, AIR 1954 SC 397, Iqbal Singh Marwah v. Meenakshi
Marwah (2005) 4 SCC 370 and Institute of Chartered Accountants of India v. Assn. of
Chartered Certified Accountants (2005) 12 SCC 226]. 2005 AIR SCW 1929
14. It is furthermore trite that Section 195(1)(b)(ii) of the Code of Criminal Procedure
would not be attracted where a forged document has been filed. It was so held by a
Constitution Bench of this Court in Iqbal Singh Marwah (supra) stating :
"25. An enlarged interpretation to Section 195(1)(b)(ii), whereby the bar created by the
said provision would also operate where after commission of an act of forgery the
document is subsequently produced in court, is capable of great misuse. As pointed out in
Sachida Nand Singh after preparing a forged document or committing an act of forgery, a
person may manage to get a proceeding instituted in any civil, criminal or revenue court,
either by himself or through someone set up by him and simply file the document in the
said proceeding. He would thus be protected from prosecution, either at the instance of a
private party or the police until the court, where the document has been filed, itself
chooses to file a complaint. The litigation may be a prolonged one due to which the actual
trial of such a person may be delayed indefinitely. Such an interpretation would be highly
detrimental to the interest of the society at large.
26. Judicial notice can be taken of the fact that the courts are normally reluctant to direct
filing of a criminal complaint and such a course is rarely adopted. It will not be fair and
proper to give an interpretation which leads to a situation where a person alleged to have
committed an offence of the type enumerated in clause (b)(ii) is either not placed for trial
on account of non-filing of a complaint or if a complaint is filed, the same does not come
to its logical end. Judging from such an angle will be in consonance with the principle,
that an unworkable or impracticable result should be avoided. In Statutory Interpretation
by Francis Bennion (3rd Edn.), para 313, the principle has been stated in the following
manner :
"The court seeks to avoid a construction of an enactment that produces an unworkable or
impracticable result, since this is unlikely to have been intended by Parliament.
Sometimes, however, there are overriding reasons for applying such a construction, for
example, where it appears that Parliament really intended it or the literal meaning is too
strong.""
In regard to the possible conflict of findings between civil and criminal court, however, it
was opined :
"32. Coming to the last contention that an effort should be made to avoid conflict of
findings between the civil and criminal courts, it is necessary to point out that the
standard of proof required in the two proceedings are entirely different. Civil cases are
decided on the basis of preponderance of evidence while in a criminal case the entire
burden lies on the prosecution and proof beyond reasonable doubt has to be given. There
is neither any statutory provision nor any legal principle that the findings recorded in one
proceeding may be treated as final or binding in the other, as both the cases have to be
decided on the basis of the evidence adduced therein......"
It was concluded :
@page-SC1887
"33. In view of the discussion made above, we are of the opinion that Sachida Nand
Singh has been correctly decided and the view taken therein is the correct view. Section
195(1)(b)(ii), Cr. PC would be attracted only when the offences enumerated in the said
provision have been committed with respect to a document after it has been produced or
given in evidence in a proceeding in any court i.e. during the time when the document
was in custodia legis."
15. Filing of an independent criminal proceeding, although initiated in terms of some
observations made by the civil court, is not barred under any statute.
16. The High Court, therefore, in our opinion, was not correct in staying the investigation
in the said matter.
Reliance has been placed by Mr. Gupta on Mahar Jahan and others v. State of Delhi and
others [(2004) 13 SCC 421] wherein this Court was dealing with a proceeding under
Section 145 of the Code of Criminal Procedure. This Court noticed that a civil dispute
was given the colour of a criminal case. As therein a proceeding under Section 145 of the
Code of Criminal Procedure was pending, when a civil suit was also pending before a
competent court of law, it was opined :
"4. It is not disputed by the learned counsel for the parties that this very property which is
the subject-matter of these criminal proceedings is also the subject-matter of the civil suit
pending in the civil court. The question as to possession over the property or entitlement
to possession would be determined by the civil court. The criminal proceedings have
remained pending for about a decade. We do not find any propriety behind allowing these
proceedings to continue in view of the parties having already approached the civil court.
Whichever way proceedings under Section 145, Cr. P.C. may terminate, the order of the
criminal court would always be subject to decision by the civil court. Inasmuch as the
parties are already before the civil court, we deem it proper to let the civil suit be decided
and therein appropriate interim order be passed taking care of the grievances of the
parties by making such arrangement as may remain in operation during the hearing of the
civil suit."
It was furthermore observed :
"7. We have simply noted the contentions raised by the parties. The civil court, in our
opinion, would be the most appropriate forum to take care of such grievances and pass
such interim order as would reasonably protect the interests of both the parties. The civil
court may issue an ad interim injunction, may appoint a Commissioner or Receiver or
may make any other interim arrangement as to possession or user of the property which is
the subject-matter of proceedings in the civil court exercising the power conferred on it
by Sections 94 and 151 of the Code of Civil Procedure."
It was, therefore, a case where this Court quashed a proceeding under Section 145 of the
Code of Criminal Procedure as the matter pending before it arose out of a civil
proceedings. Such observations were made keeping in view the fact that possession of the
parties over the property in suit was in question.
17. The impugned order, therefore, cannot be sustained which is set aside accordingly.
Civil Appeal arising out of SLP (C) No. 15670 of 2006 is allowed.
18. We, however, are of the opinion that the High Court should be requested to hear the
appeal as early as possible and preferably within a period of three months from the date
of receipt of a copy of this order. This, however, may not be taken to mean that we have
entered into the merit of the matter.
19. It goes without saying that the respondent shall be at liberty to take recourse to such a
remedy which is available to him in law. We have interfered with the impugned order
only because in law simultaneous proceedings of a civil and a criminal case is
permissible.
20. In view of the aforementioned observations, we are of the opinion that the interim
order dated 24-05-2006 as modified by an order dated 17-07-2006 need not be interfered
with particularly in view of the fact that according to the respondent it had made a
payment of Rs. 35,47,000/- besides the disputed payment of Rs. 4,03,000/- and made
deposits of Rs. 67,54,088/-.
21. For the reasons aforementioned, Civil Appeal arising out of SLP (C) No. 16215 of
2006 is dismissed.
Order accordingly.
@page-SC1888
AIR 2008 SUPREME COURT 1888 "Pancham Chand v. State of Himachal Pradesh"
(From : Himachal Pradesh)*
Civil Appeal No. 1732 of 2008 (arising out of SLP (C) No. 1615 of 2008), D/- 4 -3 -2008.
Pancham Chand and Ors. v. State of H.P. and Ors.
(A) Motor Vehicles Act (59 of 1988), S.70, S.72, S.67 - MOTOR VEHICLES - STATE -
Stage carriage permit - Application for - Neither can be made to Chief Minister - Nor can
he direct grant - State Govt.'s power limited to framing of policy.
C. W. P. No. 1217 of 2004, D/-16-09-2008 (HP), Reversed.
Chief Minister of a State has no role to play in the matter of grant of stage carriage
permit. Neither can he entertain any application nor can he pass any order thereon.
Section 72 of the Act empowers the Regional Transport Authority to grant stage carriage
permit in respect of any route or the area specified in the application. The Act is a
selfcontained Code. All the authorities mentioned therein are statutory authorities. They
are bound by the provisions of the Act. They must act within the four corners thereof. The
State, although, have a general control but such control must be exercised strictly in terms
of Art. 162 of the Constitution of India. Having regard to the nature and the manner of the
control specified therein, it may lay down a policy. Statutory authorities are bound to act
in terms thereof, but per se the same does not authorize any Minister including the Chief
Minister to act in derogation of the statutory provisions. Any such interference on the part
of any authority upon whom the Act does not confer any jurisdiction, is wholly
unwarranted in law. It violates the constitutional scheme. It interferes with the
independent functioning of a quasi judicial authority.
C. W. P. No. 1217 of 2004, D/-15-09-2005 (HP), Reversed. (Paras 17, 18, 20)
(B) Constitution of India, Art.163 - COUNCIL OF MINISTERS - STATE - State Govt. -
Functioning - Takes place through Council of Ministers - Not Chief Minister alone.
(Para 17)
(C) Constitution of India, Art.226 - WRITS - PRACTICE AND PROCEDURE -
AFFIDAVIT - Writ petition - Practice and procedure - Petition against order of statutory
authority - Affidavit in response to notice - Authority bound to place before Court facts as
borne out from records - Not supposed to affirm an affidavit together with State and
defend State or Chief Minister. (Para 26)
AIR 1979 SC 114 (Ref.) 19
AIR 1978 SC 851 (Rel. on) 22
AIR 1952 SC 16 (Rel. on) 21, 22
Ravi Bakshi and Yash Pal Dhingra, for Appellants; J.S. Attri, Dr. R.P. Sharma,
T.C.Sharma and V.N. Raghupathy, for Respondents.
* C. W. P. No. 1217 of 2004, D/- 15-9-2005 (HP)
Judgement
1. Whether Chief Minister of a State has any role to play in a matter of grant of permit of
a Stage Carriage Permit in terms of the provisions of the Motor Vehicles Act, 1988 (for
short "the Act") is in question in this appeal which arises out of a judgment and order
dated 15th September, 2005 passed by a Division Bench of the Himachal Pradesh High
Court, Shimla, in C.W.P. No. 1217 of 2004.
2. The basic fact of the matter is not in dispute.
Appellants are the bus owners. They applied for grant of stage carriage permits for
different routes before the Regional Transport Officer as envisaged under Section 70 of
the Act. While Appellant No. 1 had applied for grant of route - Tikri to Palampur,
Palampur to Chahiar and Palampur to Jaisinhpur, Appellant No.2 had applied for grant of
permit for the route Palampur to Jaisinhpur, Jaisinhpur to Baijnath and Jaisnhpur to
Palampur, Appellant No.3 had applied for the route Indora to Kaaza, Maclodganj to
Mandi and Damtal to Manali.
3. Fourth respondent, who is said to have a political connection being a leader of
Congress Party, approached the State Chief Minister directly by a letter, which reads
thus :-
"The Hon'ble Chief Minister,
Himachal Pradesh, Shimla
Subject :- Application regarding route permit.
Hon'ble Sir,
With due regards, it is requested that I have previously requested for the route permit, but
I was not given any route permit in the meeting of RTA. I have come to the
@page-SC1889
Oakover and I have again stated that no buses are running on the route and still then I was
not given any route. It is, therefore, requested that the following route may kindly be
granted in my favour,
Baijnath Tikkari Panchrukhi 6RT. This route was notified, but not issued to any one.
Yours faithfully,
Sd/-
(Rajinder Rana)
Tehsil Baijnath, District Kangara"
4. The said letter was addressed on the letter-head of Mandal Congress Committee, Rajgir
Panchukhi, Himachal Pradesh. Respondent No.4 described himself to be the President
thereof. The said letter was received in the official residence of the Chief Minister. The
Chief Minister's office by a letter dated 9th March, 2004 addressed to the Commissioner
(Transport), Himachal Pradesh, respondent No.5, directed :-
"It has been approved that permit may be sanctioned in favour of Shri Rajender Rana,
VOP Rakkar, Tehsil Baijnath Tikri, Panchrukhi-G RT route. A copy of his application is
enclosed.
Commissioner Transport, H.P. is requested to please take further action accordingly and
send compliance report to this office.
Sd/-
Additional Secretary to
Dt. 9-3-2004
Chief Minister, HP"
5. The Director Transport-Respondent No.2 herein, in turn, communicated the said order
to the Regional Transport Officer by his letter dated 16th March, 2004 asking him to
place the said proposal in the next meeting of the Regional Transport Authority after
obtaining an application from the applicant in the prescribed format. It furthermore
appears that the Chief Minister's Office again on 9th June, 2004 issued another letter to
the second respondent indicating approval for grant of a route permit in favour of the 4th
respondent. Respondent No.2 was requested to take action as per observations of the
Hon'ble Chief Minister.
6. Indisputably a meeting of the Authority was held on 3rd July, 2004 but no decision was
taken on the applications filed by the appellants, although the same were made prior in
time to that of the one filed by the respondent No.4, who had approached the Chief
Minister, A Stage Carriage Permit was granted in favour of the fourth respondent for the
said route.
7. Aggrieved, a writ petition was filed by the appellants before the Himachal Pradesh
High Court which was marked as CWP No. 1217 of 2004. While issuing notice in the
said writ petition, operation of the permit granted in favour of the fourth respondent was
directed to be stayed by the High Court.
8. In their counter-affidavit, the State of Himachal Pradesh, Director (Transport),
Regional Transport Authority and Commissioner (Transport) inter alia contended that the
routes applied for by the appellants and that of respondent No.4 are different and the
permit was granted in his favour purely on merit. A rejoinder thereto was filed by the
appellants stating that the permit was being granted only on the instructions of the higher
authorities and not in accordance with law.
9. By reason of the impugned judgment the Division Bench of the High Court dismissed
the writ petition of the appellants, stating :-
"It is the admitted case of the parties that the route in respect (of) which permit has been
granted to respondent No.4 is different from the routes in respect of which applications
have been made by the writ petitioners. Therefore, in our considered view the writ
petitioners can have no grievance against respondent No.4.
Now the Directorate of Transport, Shimla, vide communicaton dated 4th January, 2005
(Annexure R-1) with a view to implementing the provision of Section 68(3)(ca) of the
Motor Vehicles Act has conveyed the decision of the State Government to all the
Regional Transport Officers that all the applications pending with the Regional Transport
Authority for grant of route permit, except those which are in respect of 100%
exclusively rural routes or 109 notified routes, are to be deemed to have been rejected. In
view of the issuance of this communication by the Directorate of Transport, Shimla, we
direct respondent No.3, i.e. Regional Transport Authority, Dharamshala Through its
Secretary, to consider the pending applications of the writ petitioners for grant of permits,
if those applications or any of them
@page-SC1890
pertain to route(s) which are 100% exclusively rural route(s) or which are among 109
notified routes within a period of six weeks from today. With these directions, the writ
petition is disposed of."
10. Notice was issued by this Court on 30th January, 2006 confined only to the question
as to whether the application for grant of permit filed under the Motor Vehicles Act can
be filed before any authority other than the one prescribed there-under.
11. Mr. Ravi Bakshi, learned counsel appearing on behalf of the appellants urged that the
High Court committed manifest error in refusing to apply the legal principles involved in
the matter inasmuch as under no circumstances, applications for grant of permit could be
filed before the Chief Minister or any other authority or processed by them, other than
those specified in the Act.
12. Mr. J.S. Aattri, learned counsel appearing on behalf of the State and Dr. R.P. Sharma,
learned counsel appearing on behalf of respondent No.4, on the other hand, urged that the
permit was granted having regard to the need of the public and not under the direction of
the Chief Minister. Even otherwise it was urged that the State has the requisite
jurisdiction to issue instructions laying down the policy for grant of permits.
13. The Motor Vehicles Act, 1988 was enacted to consolidate and amend the law relating
to motor vehicles. While enacting the Act the Parliament inter alia took into account
changes in the road transport technology, pattern of passenger and freight movements,
development of the road network in the country and particularly the improved techniques
in the motor vehicles management. The Parliament also took into consideration the
reports of various Committees and the Working Groups appointed for the said purpose.
14. Section 2(41) of the Act defines "permit" to mean a permit issued by a State or
Regional Transport Authority or any authority prescribed in this behalf under the Act
authorizing the use of a motor vehicle as a transport vehicle. "Transport vehicle" has been
defined in Section 2(47) to mean a public service vehicle, a goods carriage, an
educational institution bus or a private service vehicle.
15. Chapter V of the Act provides for control of transport vehicles. Section 66 provides
for necessity for permits in terms whereof a statutory embargo has been placed to the
effect that no owner of a motor vehicle shall use or permit the use thereof as a transport
vehicle, save in accordance with the conditions of a permit granted or countersigned by a
Regional or State Transport Authority or any prescribed authority.
16. Section 67 of the Act empowers the State Government to control road transport
having regard to the factors enumerated therein. Section 68 provides for constitution of
the State Transport Authority. An application for grant of Stage Carriage Permit, as
envisaged under Section 69 of the Act, is to be filed in terms of Section 70 thereof,
detailing the particulars specified therein. Section 71 provides for the procedures to be
followed by the Regional Transport Authority in considering application for stage
carriage permit. Section 72 empowers the Regional Transport Authority to grant stage
carriage permit in respect of any route or the area specified in the application. The other
provisions contained in the said Chapter provide for the mode and manner for dealing
with the applications for grant of other types of permits.
17. The Act is a self-contained Code. All the authorities mentioned therein are statutory
authorities. They are bound by the provisions of the Act. They must act within the four
corners thereof. The, State, although, have a general control but such control must be
exercised strictly in terms of Article 162 of the Constitution of India. Having regard to the
nature and the manner of the control specified therein, it may lay down a policy. Statutory
authorities are bound to act in terms thereof, but per se the same does not authorize any
Minister including the Chief Minister to act in derogation of the statutory provisions.
Constitution of India does not envisage functioning of the Government through the Chief
Minister alone. It speaks of Council of Ministers. The duties or functions of the Council
of Ministers are ordinarily governed by the provisions contained in the Rules of Business
framed under Article 166 of the Constitution of India. All governmental orders must
comply with the requirements of a statute as also the constitutional provisions. Our
Constitution envisages a rule of law and not rule of men. It recognizes that, howsoever
high one may be, he is under law and the Constitution. All the constitutional functionaries
must,
@page-SC1891
therefore, function within the constitutional limits.
18. Apart from the fact that nothing has been placed on record to show that the Chief
Minister in his capacity even as a Member of the Cabinet was authorized to deal with the
matter of transport in his official capacity, he had even otherwise absolutely no business
to interfere with the functioning of the Regional Transport Authority. Regional Transport
Authority being a statutory body is bound to act strictly in terms of the provisions thereof.
It cannot act in derogation of the powers conferred upon it. While acting as a statutory
authority it must act having regard to the procedures laid down in the Act. It cannot bye-
pass or ignore the same.
19. Factual matrix, as indicated hereinbefore, clearly goes to show that the fourth
respondent filed the application before the Chief Minister straightway. Office of the Chief
Minister communicated the order of the Chief Minister, not once but twice. Respondent
No.2 acted thereupon. It advised the Regional Transport Authority to proceed, after
obtaining a proper application from respondent No.4 in that behalf. This itself goes to
show that prior thereto no proper application was filed before the Regional Transport
Authority. Such an interference on the part of any authority upon whom the Act does not
confer any jurisdiction, is wholly unwarranted in law. It violates the constitutional
scheme. It interferes with the independent functioning of a quasi judicial authority. A
permit, if granted, confers a valuable right. An applicant must earn the same.
In D. Nataraja Mudaliar vs. The State Transport Authority, Madras, AIR 1979 SC 114 :
(1978) 4 SCC 290, this Court held :
"9. The Authority must, remember that a permit holder has an ordinary right of renewal
unless it is shown that outweighing reasons of public interest lead to a contrary result.
Permits are not bounty but right, restricted reasonably by the Motor Vehicles Act."
The application of the respondent No.4, therefore, was to be entertained along with other
similarly situated persons.
20. In the matter of grant of permit to individual applicant, the State has no say. The
Chief Minister or any authority, other than the statutory authority, therefore, could not
entertain an application for grant of permit nor could issue any order thereupon. Even any
authority under the Act, including the appellate authority cannot issue any direction,
except when the matter comes up before it under the statute.
21. In Commissioner of Police vs. Gordhandas Bhanji, AIR 1952 SC 16, this Court
held :-
"It is clear to us from a perusal of these rules that the only person vested with authority to
grant or refuse a license for the erection of a building to be used for purposes of public
amusement is the Commissioner of Police. It is also clear that under Rule 250 he has
been vested with the absolute discretion at any time to cancel or suspend any license
which has been granted under the rules. But the power to do so is vested in him and not in
the State Government and can only be exercised by him at his discretion. No other person
or authority can do it."
22. Yet again in Mohihder Singh Gill and another vs. The Chief Election Commissioner,
New Delhi and others, AIR 1978 SC 851 : (1978) 1 SCC 405.
"8. The second equally relevant matter is that when a statutory functionary makes an
order based on certain grounds, its validity must be judged by the reasons so mentioned
and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise.
Otherwise, an order bad in the beginning may, by the time it comes to court on account of
a challenge, get validated by additional grounds later brought out. We may here draw
attention to the observations of Bose, J. in Gordhandas Bhanji : AIR 1952 SC 16 at p.
18
"Public orders, publicly made, in exercise of a statutory authority cannot be construed in

the light of explanations subsequently given by the officer making the order of what he
meant, or of what was in his mind, or what he intended to do. Public orders made by
public authorities are meant to have public effect and are intended to affect the actings
and conduct of those to whom they are addressed and must be construed objectively with
reference to the language used in the order itself."
Orders are not like old wine becoming better as they grow older."
23. It is not a case where the statutory authority was hearing a grievance from the public
that buses are not plying in a particular
@page-SC1892
route as a result whereof the villagers were suffering.
24. Respondent No.4 appears to be the owner of a fleet of buses. He had a political
connection. Such political connection encouraged him to file an application for grant of
permit before the Chief Minister directly. The Chief Minister could not have entertained
the same nor usurp the function of the Regional Transport Authority.
25. Similarly, the respondent No.2 committed a serious Illegality in forwarding the same
to the respondent No.3 with the purported recommendations of the Chief Minister.
26. We also fail to understand as to how an independent quasi judicial body, like the
respondent No.3, could affirm an affidavit together with the State. Its duty before the
High Court, in response to the rule issued by it, was to place the facts as borne out from
the records. It was not supposed to take any stand one way or the other. It had no business
to defend the State or the Chief Minister.
27. For the reasons aforementioned, the appeal is allowed with costs. The impugned
judgment is set aside. As a limited notice was issued, we need not pass any consequential
order which is within the realm of the Regional Transport Authority.
28. We impose a cost of Rupees one lakh upon the State which may be paid to the
National Legal Services Authority. The said amount may be deposited within a period of
four weeks failing which it will be open to the National Legal Services Authority to
realize the same with interest @ 12 % per annum.
Appeal allowed.
AIR 2008 SUPREME COURT 1892 "Hinsa Virodhak Sangh v. Mirzapur Moti Kuresh
Jamat"
(From : Gujarat)
Coram : 2 H. K. SEMA AND MARKANDEY KATJU, JJ.
Civil Appeal No.5469 with 5470, 5472, 5474, 5476-78 and 5479-5481 of 2005, D/- 14 -3
-2008.
Hinsa Virodhak Sangh v. Mirzapur Moti Kuresh Jamat and Ors.
(A) Constitution of India, Art.19(1)(g), Art.19(6), Art.14, Art.21 - Bombay Provincial
Municipal Corporation Act (59 of 1949), S.466(1)(D)(b) - FREEDOM OF TRADE -
EQUALITY - RIGHT TO LIFE - MUNICIPALITIES - Right to trade - Restriction on -
Municipal slaughter houses - Closure for 9 days during religious festival of Jains - Do not
violate Art.19(1)(g), Art.21 - Restriction imposed is reasonable.
S. C. A. No. 6239 of 1998, D/-22-06-2005 (Guj.), Reversed.
The closure of the municipal slaughter houses during religious festival of Jain community
(Paryushan) is not an unreasonable restriction on the rights of Butchers to carry on trade
and business in livestock, mutton etc. Had the impugned municipal resolutions ordered
closure of municipal slaughter houses for a considerable period of time the impugned
resolutions may have become invalid being an excessive restriction on the rights of the
butchers of the City who practice their profession of meat selling. After all, butchers are
practising a trade and it is their fundamental right under Art. 19(1)(g) of the Constitution
which is guaranteed to all citizens of India. Moreover, it is not a matter of the proprietor
of the butchery shop alone. There may be also several workmen therein who may become
unemployed if the slaughter houses are closed for a considerable period of time. One of
the conditions of the licence given to the shop owners is to supply meat regularly in the
city and this supply comes from the municipal slaughter houses. Closure for many days
would not therefore be proper. Also, a large number of people are non-vegetarian and
they cannot be compelled to become vegetarian for a long period. What one eats is one's
personal affair and it is a part of his right to privacy which is included in Art. 21 of our
Constitution. However, in the instant case the closure of the slaughter houses is only for 9
days and not for a considerable period of time. (Paras 25, 26, 27, 31)
A period of 9 days is a very short time and surely the non-vegetarians can become
vegetarians during those 9 days out of respect for the feeling of the Jain community. Also,
the dealers in meat can do their business for 358 days in a year, and they have to abstain
from it for only 9 days in a year. Surely this is not an excessive restriction, particularly
since such closure has been observed for many years.
S. C. A. No. 6239 of 1998, D/-22-06-2005 (Guj), Reversed. (Paras 34, 36)
(B) Constitution of India, Art.21 - RIGHT TO LIFE - Right to privacy - To be vegetarian
or non-vegetarian - Is one's personal affair
@page-SC1893
It is part of right of privacy. (Para 26)
(C) Constitution of India, Art.246, Art.226 - Bombay Provincial Municipal Corporation
Act (59 of 1949), S.466 - LEGISLATION - WRITS - MUNICIPALITIES - JUDICIAL
REVIEW - Delegated legislation - Judicial review - Municipal resolution directing
closure of municipal slaughter houses for 9 days - A piece of delegated legislation - Only
limitation on it is that it should not violate provisions of parent statute or of Constitution -
Court can declare it as unconstitutional only if these limitations are violated. (Paras
38, 39, 40)
2008 AIR SCW 1836 (Rel. on) 39
2005 AIR SCW 5723 : AIR 2006 SC 212 23
AIR 1986 SC 1205 11, 16
AIR 1986 SC 1213 15
AIR 1970 SC 93 18, 19, 20, 21, 22, 23, 24
AIR 1961 SC 448 20
AIR 1958 SC 731 19, 23
AIR 1952 SC 196 : 1952 Cri LJ 966 (Rel. on, Pnt. A) 33, 35
Soli J. Sorabjee, P.H. Parekh, U.N. Bhachawat, T.R. Andhyarujina, Suresh Shelat, Sr.
Advocates, E.R. Kumar, Ashok Jain, Ardhendumauli Kumar Prasad, Ajay Jha, Arjun
Garg, Shubhranshu Padhi, Somnadri Gaud (for M/s. Parekh and Co.), Anip Sachthey,
Mohit Paul, Alok Bhachawat, Ms. Madhavi Divan, Ms. Hemantika Wahi, Ms. Pinky, Ms.
Jasal, Prashant G. Desai, Tejas Patel, S. C. Patel and Subhashish Bhowmic, for Appellant;
M. N. Rao, Fakhruddin, Sr. Advocates, W.A. Nomani, Abdul Karim Ansari, Aftab Ali
Khan, Abdul Qadir, Raj Kishore Chaudhary, A. Ramesh, M. Z. Chaudhary, N. K. Neeraj,
Imtiaz Ahmed and Mrs. Naghma Imtiaz (for M/s. Equity Lex Associates), for
Respondents.
Judgement
MARKANDEY KATJU, J. :- Civil Appeal No. 5469/2005
1. This appeal by special leave has been filed against the impugned judgment dated 22-6-
2005 of the Division Bench of the Gujarat High Court in Special Civil Application No.
6329 of 1998.
2. Heard learned counsel for the parties and perused the record.
3. Respondent No. 1 claims to be a registered public charitable trust working for
safeguarding the interests of the persons engaged in the business of slaughter and sale of
livestock, mutton etc. It is alleged that it is functioning in the city of Ahmedabad in
Gujarat since 1962 and has about 3000 members. Respondent No. 2 All Ahmedabad
(Chhoti Jamat) Mutton Merchant Association is an association of persons who are
engaged in the sale of mutton in the city of Ahmedabad. Respondent No.3 is an
individual who is doing the business of selling mutton in the city of Ahmedabad.
4. The common grievance of the respondents herein (the writ petitioners before the High
Court), is that with a view to appease the Jain community the State Government and the
Ahmedabad Municipal Corporation (in short 'the Corporation') have, from time to time,
taken decisions/passed resolutions for closure of the municipal slaughter houses in
Ahmedabad during the period of the Paryushan festival (which is an important Jain
festival) resulting in serious violation of their fundamental right to trade and do business
in meat etc. They have alleged that in the year 1993, the State Government accepted the
demand of some organizations belonging to the Jain community for closure of the
municipal slaughter houses during the period of Paryushan and issued directions to the
Corporation to take appropriate action accordingly. In subsequent years, the Corporation
passed resolutions for closure of the municipal slaughter houses for different period
ranging from 8 to 18 days during the Paryushan festival.
5. They have alleged that the closure of the municipal slaughter houses directly results in
violation of their fundamental rights to do trade and business as guaranteed by Article
19(1)(g) of the Constitution and it cannot be said to be a reasonable restriction merely
because a particular community or a section of the society feels that for a particular
period there should be closure of the municipal slaughter houses as that will be in
consonance with the Jain ideology of Ahinsa (non-violence).
6. There were two resolutions impugned in the writ petition passed by the Standing
Committee of the Municipal Corporation for closure of the municipal slaughter houses in
Ahmedabad during the Paryushan festival. These resolutions read as follows :
@page-SC1894
"Resolution dated 14-8-1998 : Resolved that during the current year from 19-8-1998,
Mhah Paryushan Parv of Jain Religion begins. Every year during Paryushan Parv, the
slaughter houses of this Municipality are closes. Accordingly, having regard to the
sentiments of the citizens of Jain Religion, during the current year also, on account of
Paryushan Parv from 19-8-1998 to 26-8-1998, and as per the discussion in the
Committee, sanction should be obtained from the Municipal Corporation, to close
Municipal slaughter houses every year, for eight days, during Paryushan Parv.
Resolution dated 29-8-1999:
Resolved that as demanded by Shree Arihant Seva Samaj and All Gujarat Digambar Jain
Samaj, Ahmedabad, in anticipation of the sanction of the Municipal Corporation, sanction
is granted to close the Municipal slaughter house for the period 27-8-1998 to 5-9-1998 of
Digambar Jain Society Paryushan Parv from 27-8-1998 to 5-9-1998; and as per the
discussion in the Committee, hereafter every year, to close the municipal slaughter
houses, for ten days of Digambar Jain Samaj Paryushan Parv."
7. Thus it appears that the closure of slaughter houses in Ahmedabad was ordered by the
Corporation for a period of 18 days, first from 19-8-1998 to 26-8-1998 in connection
with the festival of the Shvetamber sect of the Jain community and the other from 27-8-
1998 to 5-9-1998 during which the Digambar sect of the Jain community celebrates
Paryushan festival. However, during the course of the arguments, learned senior counsel
for the appellants Mr. Soli Sorabjee and Mr. T.R. Andhyarujina stated that the closure is
only for 9 days and not for 18 days which is evident from paragraphs 20 and 23 of the
affidavit filed on behalf of Ahmedabad Municipal Corporation in the connected Civil
Appeals (C.A. Nos. 5479-81/2005).
8. The impugned resolutions dated 14-8-1998 and 29-8-1999 were passed under Section
466(1)(D)(b) of the Bombay Provincial Municipal Corporation Act, 1949. The said
provision reads as follows :
"The Commissioner may make standing orders consistent with the provisions of this Act
and the rules and by-laws in respect of the following matters, namely :-
(A) to (D) ...........
(b) fixing the days and the hours on and during which any market, slaughter-house or
stock-yard may be held or kept open for use and prohibiting the owner of any private
market from keeping it closed without lawful execuse on such days or during such
hours."
9. It may be mentioned that the slaughter houses in Ahmedabad are owned and managed
by the Ahmedabad Municipal Corporation, but the animals which are slaughtered there
belong to private persons represented by the respondents herein, who bring their animals
to the slaughter house for slaughtering.
10. The stand taken by the Municipal Corporation is reflected in the affidavit of Dr. Anil,
Asstt. Superintendent (Slaughter Houses) filed in Special Civil Application No. 9031 of
2000. In paragraphs 6 and 7 of his affidavit, Dr. Anil has stated as under :
"6. In reply to para 5 of the petition I state and submit that it is no doubt true that the
religious sentiments of the Jain community are taken into consideration when imposing
this ban. I submit that it is not a question of Jain community imposing its will upon rest
of the people, but it is a question of one section of society who believes in kindness to
animals making a request that during their religious days their sentiments may be
respected for these few days, if not for all times. It is considering this religious sentiment
that for a few days ban is imposed.
7. In reply to para 7 of the petition, I state that the petitioner is right in saying that the
question which arises before this Honble Court is one of principle and not of any specific
event which happened during a particular year. I further state and submit that the
Corporation has stated earlier what are the reasons which have led it to impose a ban for a
few days during the Jain religious days. In reply to the principles raised as under :-
(i) I respectfully state and submit that looking to the long term interest of the city and
harmony with which the citizens are expected to live, the Corporation is well within its
right for closing down the slaughter houses for a limited period of time.
(ii) I state and submit that such a closure
@page-SC1895
is certainly undisputable in public interest and the restriction which it places temporarily
for a few days on the slaughter of animals is in no way contrary to the Constitution.
(iii) I state and submit that the action of the Corporation is well within its power and not
mala fide and not contrary to law and not violative of Article 19 of the Constitution.
(iv) I state that the Corporation's action as stated above is taken not to discriminate
between the communities but to see that if communities respect each others feeling and
that more tolerant society where people of different religions can live together happily is
brought about. Such a desire of the Corporation can by no means be violative of Article
14 of the Constitution of India. It is important to appreciate that the Corporation is not
deciding between the Jains and other communities. What the Corporation is attempting to
do is to see that the religious beliefs of all communities and classes of society are
respected placing as little restriction or curb on the other community so that all can live
harmoniously and peacefully.
(v) I state that there is no fundamental right to slaughter animals. I state and submit that
the impugned action as stated above is absolutely in public interest and as already stated
above, it is not to satisfy religious sentiments of a particular section but to see that the
community as a whole lives cordially respecting each other's religious belief.
(vi) I respectfully state and submit that Section 466(1)(D)(b) is legal and just and I leave
it to my lawyer to raise relevant argument on this legal issue.
(vii) I state and submit that the action of the corporation is legal and valid. It is an
absolutely bona fide exercise of power. It is not for a collateral purpose viz. to appease
Jains. I am not going into length on the same issue as the same has been referred to in
former paragraphs of the affidavit. I state and submit that the power has been exercised to
see that the citizens of Ahmedabad can all live cordially together respecting religious
sentiments of each other."
11
. The State Government filed its reply in Special Civil Application No. 9509 of 1993. In
paragraph 4 of the affidavit filed by Shri M.V. Khalasi, Under Secretary to the
Government, Urban Development and Urban Housing Department, reference has been
made to the incident involving murder of Smt. Gitaben Shah (Activist of Hinsa Nivaran
Samiti) and it has been averred that keeping in view the representations made by the Jain
organizations and personal requests made by eminent citizens it was decided to close the
slaughter houses during the Paryushan days. Shri Khalasi has referred to the judgment of
Supreme Court in Jan Mohammed's case and averred that the petitioners cannot complain
of the violation of their fundamental rights of trade and business simply because the
Municipal slaughter houses are closed during the period of the Paryushan. AIR 1986 SC
1205
12. During the pendency of the petitions, Hinsa Virodhak Sangh, Satellite Murtipujak
Jain Sangh, Shree Laxmi Vardak Jain Sangh and Shree Shahibaug Girdhar Nagar Jain
Swetambar Murti Pujak Sangh got themselves impleaded as parties to the writ petitions
or were allowed to be impleaded as party respondents. Thereafter, Dr. K.K. Shah,
President of Hinsa Virodhak Sangh filed affidavit dated 17-8-1998 in Special Civil
Application No. 6239 of 1998. He has referred to the Farman issued by Mughal Emperor
Akbar in the 16th century, notifying 12 days of the month of Badharva including 8 days
of the Paryushan as the period of abstinence during which no living creature would be
slaughtered, and averred that the petitioners' right to trade and business in livestock, meat
etc. is not violated on account of closure of the slaughter houses during the period of the
Paryushan. Shri Jayesh Manubhai Shah has also filed affidavit 17-8-1998 on behalf of
three Jain Sanghs. In paragraph 4 of his affidavit, Shri Jayesh Manubhai Shah has averred
as under :-
"The Jain religion is a very old religion based mainly on the principles of "Ahinsa" of the
highest order. In the days of Paryushan Parva all the Jains all over the world will observe
various religious activities such as fasting, prayers, attending the lectures providing and
observing "Ahinsa". The Jains are believing in not killing or hurting even a small insect,
therefore, the killing or cutting of the animals in the slaughter houses during these days of
Paryushan Parva affect and hurt the religious feelings of all Jains. The respondent Nos. 1
and 2
@page-SC1896
have been respecting the religions feeling of Jains since last many years and during the
closure of the slaughter houses in Paryushan Parva days there are no complaints
regarding non-supply of meat or its products by consumers, traders etc. thereof.
13. It was submitted by learned counsel for the appellants before the High Court that the
closure of the municipal slaughter houses during the period of Paryushan should be
declared as an unreasonable restriction on the rights of the writ petitioners to carry on
trade and business in livestock, mutton etc. It is alleged that the impugned resolutions
were passed by the Corporation in view of the demand made by some organizations
belong to the Jain community and it has nothing to do with the general public interest. It
was further submitted that the fundamental rights of those engaged in the trade and
business of slaughtering animals and/or selling meat etc which is guaranteed under
Article 19(1)(g) of the Constitution cannot be put to peril or jeopardized with a view to
assuage the feelings of any particular community or a particular section of society, or as a
mark of religious sentiments of a particular community. It was submitted that a large
number of people living in Ahmedabad are non-vegetarians and their right to food of their
choice is an integral part of the right to life guaranteed under Article 21 of the
Constitution which cannot be violated at the whims and fancies of the Jain community.
14. It was also submitted that the impugned resolutions of the Corporation were totally
arbitrary and discriminatory and hence violative of Article 14 of the Constitution apart
from violating Article 19(1)(g) of the Constitution.
15. In reply it was submitted before the High Court by learned counsel for the Municipal
Corporation and the State of Gujarat that the impugned resolutions were valid and there is
no violation of any constitutional provision. It was submitted that non-vegetarians should
respect the sentiments of the Jain community and should not complaint against the
closure of the slaughter houses simply because it may adversely affect their business for a
few days. A reference was made to the decision of this Court in Haji Usmanbhai Qureshi
vs. State of Gujarat, AIR 1986 SC 1213, in which a Constitution Bench of this Court
upheld the ban on slaughter of bulls and bullocks below the age of 16 years. It was
submitted that the right to eat non-vegetarian food cannot be treated as a part of the right
to life under Article 21 of the Constitution and the closure of Municipal slaughter houses
for a few days cannot be said to be arbitrary or violative of Article 19(1)(g) or Article 14
of the Constitution.
16. Reference was also made to the decision of this Court in Municipal Corporation vs.
Jan Mohammed, AIR 1986 SC 1205, where closure of the Municipal Corporation
slaughter houses by the Corporation for 7 days i.e. during Janmasthami, Mahatma
Gandhi's Birthday, 30th January, Mahavir Jayanti, Ram Navami, etc. was held to be valid.
17. By the impugned judgment, the Division Bench of the High Court held that the
impugned resolutions of the Municipal Corporation were constitutionally invalid. The
Division Bench of the High Court held that the writ petitioners' right to freedom to carry
on the trade of slaughtering and selling meat cannot be curtailed or abridged merely at the
asking of a particular section of society, or organizations belonging to a particular
community merely because the members of that particular community feel that according
to their religion people should not eat non-vegetarian food during a particular festival.
The Division Bench was of the view that whether the people eat vegetarian food or non-
vegetarian food is their private affair and the Court cannot make any pronouncement
about it. People living in different parts of the country have different eating habits. Even
in a particular locality, village or town, there are some who are vegetarian and others who
are non-vegetarian. The Division Bench held that no restriction can be placed on the
slaughtering or eating of meat merely because it may hurt the sentiments or the religious
feelings of a particular community or a society.
18. The Division Bench of the High Court strongly relied on the decision of a
Constitution Bench of this Court in Mohd. Faruk vs. State of Madhya Pradesh, AIR 1970
SC 93.
19. We have carefully considered the judgment of the Constitution Bench in Md. Faruk's
case (supra). In that judgment reference was made to the decision of the earlier
Constitution Bench in Mohd. Hanif Quareshi vs. State of Bihar. AIR 1958 SC
@page-SC1897
731, in which it was held - (i) that a total ban on the slaughter of cows of all ages and
calves of cows and of she-buffaloes, male and female, was reasonable and valid; (ii) that
a total ban on the slaughter of she-buffaloes or breeding bulls or working bullocks (cattle
as well as buffaloes), so long as they were capable of being used as milch or draught
cattle, was also reasonable and valid; and (iii) that a total ban on the slaughter of she-
buffaloes, bulls and bullocks (cattle or buffalo) after they ceased to be capable of yielding
milk or of breeding or working as draught animals was not in the interest of the general
public and was invalid.
20
. Reference was also made in Md. Faruk's case (supra) to Abdul Hakim Quraishi vs. State
of Bihar, AIR 1961 SC 448, where it was held that the ban on the slaughter of bulls,
bullocks and she-buffaloes below the age of 20 or 25 years was not a reasonable
restriction in the interest of the general public and was void. The Court observed that a
bull, bullock or buffalo did not remain useful after it was 15 years old, and whatever little
use it may then have was greatly offset by the economic disadvantages of feeding and
maintaining unserviceable cattle. This Court also held that the additional condition that
the animal must, apart from being above 20 or 25 years of age, be unfit was a further
unreasonable restriction. On that ground the relevant provisions in the Bihar, U.P. and
Madhya Pradesh Acts were declared invalid. AIR 1970 SC 93
21
. In paragraph 11 of Md. Faruk's case (supra), this Court observed : AIR 1970 SC 93
"The sentiments of a section of the people may be hurt by permitting slaughter of bulls
and bullocks in premises maintained by a local authority. But a prohibition imposed on
the exercise of a fundamental right to carry on an occupation, trade or business will not
be regarded as reasonable, if it is imposed not in the interest of the general public, but
merely to respect the susceptibilities and sentiments of a section of the people whose way
of life, belief or thought is not the same as that of the claimant."
22. It was on the basis of the observations made in the aforesaid para 11 in Md. Faruk's
case (supra) that the Division Bench of the High Court struck down the impugned
resolutions of the Ahmedabad Municipal Corporation.
23
. Before we proceed further it may be mentioned that a seven-Judge Constitution Bench
judgment of this Court in State of Gujarat vs. Mirzapur Moti Kureshi Kassab Jamat and
Ors., 2005 (8) SCC 534 has partially overruled the decision of the Five-Judge
Constitution Bench in Md. Hanif Qureshi's case (supra). In the aforesaid decision the
Seven-Judge Constitution Bench has referred, inter alia, to the decision in the Five-Judge
Constitution Bench decision in Md. Faruk's case (supra) (in para 29). In paragraph 67 of
the Seven-Judge Bench judgment it has been observed : 2005 AIR SCW 5723, Para
71
AIR 1958 SC 731
AIR 1970 SC 93
"The State and every citizen of India must have compassion for living creatures.
Compassion, according to the Oxford Advanced Learner's Dictionary means "a strong
feeling of sympathy for those who are suffering and a desire to help them". According to
the Chambers 20th Century Dictionary, "compassion is fellow-feeling, or sorrow for the
sufferings of another; pity". Compassion is suggestive of sentiments, a soft feeling,
emotions arising out of sympathy, pity and kindness. The concept of compassion for
living creatures enshrined in Article 51-A(g) is based on the background of the rich
cultural heritage of India the land of Mahatma Gandhi, Vinobha, Mahaveer, Buddha,
Nanak and others. No religion or holy book in any part of the world teaches or
encourages cruelty. Indian society is a pluralistic society. It has unity in diversity. The
religious, cultures and people may be diverse, yet all speak in one voice that cruelty to
any living creature must be curbed and ceased."
24
. We have quoted paragraph 67 of the Seven-Judge Bench decision of this Court because
this observation will be deemed to have impliedly overruled the observation in paragraph
11 of the judgment in Md. Faruk's case (supra) that sentiments of a particular section of
the people are irrelevant in imposing a prohibition. AIR 1970 SC 93
25. We are of the opinion that the impugned judgment of the High Court cannot be
sustained. In our opinion, the impugned resolutions of Ahmedabad Municipal
Corporation are valid, and there is no violation of Articles 14, 19(1)(g) or 21 of the
Constitution.
@page-SC1898
26
. Had the impugned resolutions ordered closure of municipal slaughter houses for a
considerable period of time we may have held the impugned resolutions to be invalid
being an excessive restriction on the rights of the butchers of Ahmedabad who practise
their profession of meat selling. After all, butchers are practising a trade and it is their
fundamental right under Article 19(1)(g) of the Constitution which is guaranteed to all
citizens of India. Moreover, it is not a matter of the proprietor of the butchery shop alone.
There may be also several workmen therein who may become unemployed if the
slaughter houses are closed for a considerable period of time, because one of the
conditions of the licence given to the shop-owners is to supply meat regularly in the city
of Ahmedabad and this supply comes from the municipal slaughter houses of
Ahmedabad. Also, a large number of people are non-vegetarian and they cannot be
compelled to become vegetarian for a long period. What one eats is one's personal affair
and it is a part of his right to privacy which is included in Article 21 of our Constitution
as held by several decisions of this Court. In R. Rajagopal vs. State of Tamilnadu, AIR
1995 SC 264 (vide para 28) this Court held that the right to privacy is implicit in the right
to life and liberty guaranteed by Article 21. It is a 'right to be let alone'. 1994 AIR
SCW 4420
27. However, in the present case, the closure of the slaughter houses is only for 9 days
and not for a considerable period of time. We have, therefore, to take a balanced view of
the matter.
28. In this connection it may be mentioned that there is a large population of the Jain
community in the States of Rajasthan and Gujarat. The Jains have a religious festival
called Paryushan during which they do penance. Out of respect, for their sentiments
surely the non-vegetarians can remain vegetarians for 9 days in a year.
29. Mr. Soli Sorabjee, learned senior counsel for one the appellants submitted that even
non-vegetarians can get meat from other cities of Gujarat or from other States during
these 9 days period of Paryushan and they will not be compelled to become vegetarians.
Learned counsel submitted that it is only the municipal slaughter houses which are closed
for 9 days, but there is no ban on eating meat during those 9 days which can easily be
procured from outside. We do not agree.
30. We have to take a practical view of the matter. Most people do not have the money to
purchase meat from other cities or other States and bring it to Ahmedabad. Almost all
meat eaters get their meat from the local butcher shop in the city, usually from a shop
which is close to their residence. Hence, closure of the slaughter house, in substance,
means compelling the non-vegetarians to become vegetarians for 9 days.
31. However, we agree with Mr. Sorabjee that the restriction is only a partial restriction
for a limited period, and it is not disproportionate. Hence it is not an unreasonable
restriction.
32. While it is true that the fundamental right of the writ petitioners under Article 19(1)
(g) is affected by the impugned resolutions of the Municipal Corporation, we have further
to examine whether the resolutions are saved by Article 19(6) which states that
reasonable restrictions can be put on the right to freedom of trade and occupation under
Article 19(1)(g) of the Constitution.
33
. In this connection, we may now refer to the well known Constitution Bench decision of
this Court in State of Madras vs. V.G. Row, 1952 SCR 597, where this Court observed
that while determining the reasonable restriction, the Court should consider not only the
factors of the restriction such as the duration and the extent but also the circumstances
and the manner in which the imposition has been authorized. The Court further observed :
AIR 1952 SC 196, Para 15
"It is important in this context to bear in mind that the test of reasonableness, wherever
prescribed, should be applied to each individual statute impugned, and no abstract
standard, or general pattern of reasonableness can be laid down as applicable to all cases.
The nature of the right alleged to have been infringed, the underlying purpose of the
restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the
disproportion of the imposition, the prevailing conditions at the time, should all enter into
the judicial verdict. In evaluating such elusive factors and forming their own conception
of what is reasonable, in all the circumstances of a given case, it is inevitable that the
social philosophy and the scale of values of the Judges
@page-SC1899
participating in the decision should play an Important part, and the limit to their
interference with legislative judgment in such cases can only be dictated by their sense of
responsibility and self-restraint and the sobering reflection that the Constitution is meant
not only for people of their way of thinking but for all, and that the majority of the
elected representatives of the people have, in authorising the imposition of the
restrictions, considered them to be reasonable."
34. The aforesaid observations have become locus classicus. In the present case we have
noticed that the closure of the slaughter house is only for 9 days and not for a
considerable period of time. This decision indicates that the restriction is reasonable. A
period of 9 days is a very short time and surely the non-vegetarians can become
vegetarians during those 9 days out of respect for the feeling of the Jain community. Also,
the dealers in meat can do their business for 356 days in a year, and they have to abstain
from it for only 9 days in a year. Surely this is not an excessive restriction, particularly
since such closure has been observed for many years.
35
. In the above observation in State of Madras vs. V.G. Row (supra) mention has been
made therein of the things to be seen in judging whether the restriction is reasonable or
not, and one important consideration is whether the restriction is disproportionate. In our
opinion, there is no disproportionate restriction because the restriction is only for a short
period of 9 days. Moreover, in the above observation in V.G. Rows case (supra), it is also
mentioned that Courts must act with a sense of responsibility and self-restraint with the
sobering reflection that the Constitution is meant not only for people of their way of
thinking but for all, and the majority of the elected representatives of the people have in
authorizing the imposition of the restrictions considered them to be reasonable. AIR
1952 SC 196
36. Judging from that angle mentioned above in V. G. Row's case (supra), which has been
consistently followed thereafter, in our opinion the closure of slaughter house cannot be
said to be an unreasonable restriction on the writ petitioners' right to do their trade and
business of slaughtering animals.
37
. In this connection, reference may be made to Om Prakash and others vs. State of U.P.
and others, 2004 (3) SCC 402, where, this Court held that a municipal bye-law
prohibiting sale of meat, fish and egg in Rishikesh is valid considering the fact that most
people in Rishikesh come for religious purposes and members of several communities are
strictly vegetarian, and it is such people who come in large numbers to visit Haridwar,
MuniKi-Reti are vegetarians. 2004 AIR SCW 1652
38. It may be mentioned that the impugned resolutions which have been made under
Section 466(1)(D)(b) of the Bombay Provincial Municipal Corporations Act, 1949
amount to a piece of delegated legislation. A piece of delegated legislation is also
statutory in character and the only limitation on it is that it should not violate the
provisions of the parent statute or of the Constitution. In our opinion, the impugned
resolutions of the Corporation do not violate the parent statute or any constitutional
provisions.
39
. We have recently held in Govt. of Andhra Pradesh and Ors. vs. Smt. P. Laxmi Devi, JT
2008 (2) 8 SC 639, that the Court should exercise judicial restraint while judging the
constitutional validity of statutes. In our opinion, the same principle also applies when
judging the constitutional validity of delegated legislation and here also there should be
judicial restraint. There is a presumption in favour of the constitutionality of statutes as
well as delegated legislation, and it is only when there is a clear violation of a
constitutional provision (or of the parent statute, in the case of delegated legislation)
beyond reasonable doubt that the Court should declare it to be unconstitutional. 2008
AIR SCW 1826
40. In the present case, we do not find any clear violation of any constitutional provision
by the impugned resolutions. As already stated above, had the closure of the slaughter
houses been ordered for a considerable period of time, we would have declared it to be
unconstitutional on the ground of violation of Articles 14, 19(1)(g) as well as 21 of the
Constitution. However, in the present case, the closure is only for a few days and has
been done out of respect for the sentiments of the Jain community which has a large
population in Gujarat. Moreover such closure during Paryushan has been consistently
observed in Ahmedabad for a very long time, at least from 1993 and probably for a
longer period.
41. It must be remembered that India is
@page-SC1900
a multi-cultural pluralistic society with tremendous diversity. There are a large number of
religions, castes, languages, ethnic groups, cultures, etc. in our country. Somebody is tall,
somebody is short, somebody is fair, somebody is brown, somebody is dark in
complexion, someone has Caucasian features, someone has Mongoloid features, someone
has Negroid features, etc. We may compare our country with China which is larger in
population and size than India. China has 1.3 billion people while our population is 1.1
billion. Also, China has more than twice our land area. However, there is broad
homogeneity in China. All Chinese have Mongoloid features; they have a common
written script (Mandarin Chinese) and 96% of them belong to one ethnic group called the
Han Chinese.
42. On the other hand, India as stated above, has tremendous diversity and this is due to
large scale migrations and invasion into India over thousands of years.
43. People migrate from uncomfortable areas to comfortable areas. Before the coming of
modern industry there were agricultural societies and India was a paradise for these
because agriculture requires level land, fertile soil, plenty of water for irrigation etc.
which was in abundance in India. Why would anybody living in India migrate to
Afganistan which has a harsh terrain, rocky and mountainous and covered with snow for
several months in a year when one cannot grow any crop? Hence, almost all migrations
and invasions came from outside into India (except in recent times when some people
have gone to other countries for job opportunities). Most of the migrations/invasions
came from the North-West, and to a much lesser extent from the North-East of India.
Thus, people kept pouring into India, and it is for this reason that there is so much
diversity in India.
44. As the great Urdu poet Firaq Gorakhpuri wrote :
Which means -
"In the land of Hind, the Caravans of the peoples of
The world kept coming in and India kept getting formed"
45. Since India is a country of great diversity, it is absolutely essential if we wish to keep
our country united to have tolerance and respect for all communities and sects. It was due
to the wisdom of our founding fathers that we have a Constitution which is secular in
character, and which caters to the tremendous diversity in our country.
46. Thus it is the Constitution of India which is keeping us together despite all our
tremendous diversity, because the Constitution gives equal respect to all communities,
sects, lingual and ethnic groups, etc. in the country.
47. The architect of modern India was the great Mughal Emperor Akbar who gave equal
respect to people of all communities and appointed them to the highest offices on their
merits irrespective of their religion, caste, etc.
48. The Emperor Akbar held discussions with scholars of all religions and gave respect
not only to Muslim scholars, but also to Hindus, Christians, Parsis. Sikhs, etc. Those who
came to his court were given respect and the Emperor heard their views, sometimes
alone, and sometimes in the Ibadatkhana (Hall of Worship), where people of all religions
assembled and discussed their views in a tolerant spirit. The Emperor declared his policy
of Suleh-e-Kul, which means universal tolerance of all religions and communities. He
abolished Jeziya in 1564 and the pilgrim tax in 1563 on Hindus and permitted his Hindu
wife to continue to practise her own religion even after their marriage. This is evident
from the Jodha Bai Palace in Fatehpur Sikri which is built on Hindu architectural pattern.
49. In 1578, the Parsi Theologian Dastur Mahyarji Rana was invited to the Emperor's
court and he had detailed discussions with Emperor Akbar and acquainted him about the
Parsi religion. Similarly, the Jesuit Priests Father Antonio Monserrate, Father Rodolfo
Acquaviva and Father Francisco Enriques etc. also came to the Emperor's court on his
request and acquainted him about the Christian religion. The Emperor also became
acquainted with Sikhism and came into contact with Guru Amar Das and Guru Ram Das
(see 'The Mughal Empire' by R.C. Majumdar).
50. Thus, as stated in the Cambridge History of India (Vol. IV - The Mughal Period)
Emperor Akbar conceived the idea of becoming the father of all his subjects.
@page-SC1901
rather than the leader of only the Muslims, and he was far ahead of his times. As
mentioned by Pt. Jawahar Lal Nehru in 'The Discovery of India, "Akbar's success is
astonishing, for he created a sense of oneness among the diverse elements of India."
51. In 1582, the Emperor invited and received a Jain delegation consisting of Hiravijaya
Suri, Bhanuehandra Upadhyaya and Vijayasena Suri, Jainism, with its doctrine of non-
violence, made a profound impression on him and influenced his personal life. He
curtailed his food and drink and ultimately abstained from flesh diet altogether for several
months in the year. He renounced hunting which was his favourite pastime, restricted the
practice of fishing and released prisoners and caged birds. Slaughter of animals was
prohibited on certain days and ultimately in 1587 for about half the days in the year.
52. Akbar's contact with Jains began as early as 1568, when Padma Sunder who belonged
to the Nagpuri Tapagaccha was honoured by him.
53. As mentioned in Dr. Ishwari Prasad's 'The Mughal Empire', the Jains had a great
influence on the Emperor. A disputation was held in Akbar's court between the Jain
monks Buddhisagar of Tapgaccha and Suddha Kirti of Khartargaccha on the subject of
Jain religious ceremony called Pansadha in which the winner was given the title
Jagatguru by Akbar. Having heard of the virtues and learning of Hir Vijaya Suri in 1582
the Emperor sent an invitation to him through the Mughal Viceroy at Ahmedabad. He
accepted it in the interests of his religion. He was offered money by the Viceroy to defray
the expenses of the journey but he refused. The delegation consisting of Hir Vijaya Suri,
Bhanu Chandra Upadhyaya and Vijaya Sen Suri started on their journey and walked on
foot to Fatehpur Sikri and were received with great honour befitting imperial guests, Hir
Vijaya Suri had discussion with Abul Fazl. He propounded the doctrine of Karma and an
impersonal God, When he was introduced to the Emperor he defended true religion and
told him that the foundation of faith should be daya (compassion) and that God is one
though he is differently named by different faiths.
54. The Emperor received instruction in Dharma from Suri who explained the Jain
doctrines to him. He discussed the existence of God and the qualities of a true Guru and
recommended non-killing (Ahlnsa). The Emperor was persuaded to forbid the slaughter
of animals for six months in Gujarat and to abolish the confiscation of the property of
deceased persons, the Sujija Tax (Jegiya) and a Sulka (possibly a tax on pilgrims) and to
free eaged birds and prisoners. He stayed for four years at Akbar's court and left for
Gujurat in 1588. He imparted a knowledge of Jainism to Akbar and obtained various
concessions to his religion. The Emperor is said to have taken a vow to refrain from
hunting and expressed a desire to leave off meat-eating for ever as it had become
repulsive. The Emperor presented to him Padma Sundar scriptures which were preserved
in his palace. He offered them to Suri as a gift and he was pressed by the Emperor to
accept them. The killing of animals was forbidden for certain days.
55. If the Emperor Akbar could forbid meat eating for six months in a year in Gujarat, is
it unreasonable to abstain from meat for nine days in a year in Ahmedabad today?
56. Emperor Akbar was a propagator of Suleh-i-Kul (universal toleration) at a time when
Europeans were indulging in religious massacres e.g. the St. Bartholomew Day massacre
in 1572 of Protestants, (called Huguenots) in France by the Catholics, the burning at the
stake of Protestants by Queen Mary of England, the massacre by the Duke of Alva of
millions of people for their resistance to Rome and the burning at the stake of Jews
during the Spanish Inquisition. We may also mention the subsequent massacre of the
Catholics in Ireland by Cromwell, and the mutual massacre of Catholics and Protestants
in Germany during the thirty year war from 1618 to 1648 in which the population of
Germany was reduced from 18 million to 12 million. Thus, Emperor Akbar was far ahead
of even the Europeans of his times.
57. Emperor Akbar himself abstained from eating meat on Fridays and Sundays and on
some other days, as has been mentioned in the Ain-I-Akbari by Abul Fazl.
58. It was because of the wise policy of toleration of the Great Emperor Akbar that the
Mughal empire lasted for so long, and hence the same wise policy of toleration alone can
keep our country together despite so much diversity.
@page-SC1902
59. We may give another historical illustration of tolerance in our country. In the reign of
Nawab Wajid Ali Shah of Avadh, in a certain year Holi and Muharrum coincidentally fell
on the same day. Holi is a festival of joy, whereas Muharrum is an occasion for mourning.
The Hindus of Lucknow decided that they would not celebrate Holi that year out of
respect for the sentiments for their Muslim brethren. On that day, the Nawab joined the
Muharrum procession and after burial of the Tazia at Karbala he enquired why Holi is not
being celebrated. He was told that it was not being celebrated because the Hindus out of
respect for the sentiments of their Muslim brethren had decided not to play Holi that year
because it was a day of mourning for the Muslims. On hearing this, Nawab Wajid All
Shah declared that since Hindus have respected the sentiments of their Muslim brothers,
it is also the duty of the Muslims to respect the sentiments of their Hindu brethren.
Hence, he announced that Holi would be celebrated the same day and he himself was the
first who started playing Holi on that day and thereafter everyone in Lucknow, including
the Muslims, played Holi, although it was Muharrum day also. It is this kind of sentiment
of tolerance which alone can keep our country united.
60. We are making these comments because what we are noticing now-a-days is a
growing tendency of intolerance in our country.
61. Article 1(1) of the Constitution states "India i.e Bharat is a Union of States."
62. It may be mentioned that during the Constituent Assembly debates some members of
the Constituent Assembly were of the view that India should be described as a
Federation. However, instead of the word "Federation" the word "Union" was
deliberately selected by the Drafting Committee of the Constituent Assembly to indicate
two things, viz., (a) that the Indian Union is not the result of an agreement by the States,
and (b) that the component States have no freedom to secede from it.
63. Moving the Draft Constitution for the consideration of the Constituent Assembly on
November 4, 1948, Dr. Ambedkar, Chairman of the Drafting Committee explained the
significance of the use of the expression "Union" instead of the expression "Federation" :-
"It is true that South Africa which is a unitary State is described as a Union. But Canada
which is a Federation is also called a Union. Thus the description of India as a Union,
though its constitution is federal, does no violence to usage. But what is important is that
the use of the word "Union" is deliberate. I do not know why the word "Union" was used
in the Canadian Constitution. But I can tell you why the Drafting Committee has used it.
The Drafting Committee wanted to make it clear that though India was to be a federation,
the federation was not the result of an agreement by the States to join in a federation, and
that the federation not being the result of an agreement, no State has the right to secede
from it. The federation is a Union because it is indestructible. Though the country and the
people may be divided into different States for convenience of administration, the country
is one integral whole, its people a single people living under a single imperium derived
from a single source. The Americans had to wage a civil war to establish that the States
have no right of secession and that their federation was indestructible. The Drafting
Committee thought that it was better to make it clear at the outset rather than to leave it to
speculation or to dispute".
64. The Drafting Committee thus clearly attached great importance to the use of the term
"Union" as symbolic of the determination of the Assembly to maintain the unity of the
country. This was evident from the discussions on draft article 1 in the Assembly on
November 15, 1948.
65. Thus India is not an association or confederation of States, it is a Union of States and
there is only one nationality that is Indian. Hence every Indian has a right to go anywhere
in India, to settle anywhere, and work and do business of his choice in any part of India,
peacefully.
66. These days unfortunately some people seem to be perpetually on a short fuse, and are
willing to protest often violently, about anything under the sun on the ground that a book
or painting or film etc. has "hurt the sentiments" of their community. These are dangerous
tendencies and must be curbed with an iron hand. We are one nation and must respect
each other and should have tolerance.
67. As the great Tamil Poet Subramaniya Bharati wrote :
@page-SC1903
"Muppadhu kodi mugamudayal
Enil maipuram ondrudayal
Ival Seppumozhi padhinetudayal
Enil Sindhanai ondrudayal"
Which means
"This Bharatmaata has thirty crores of faces!
But her body is one.
She speaks eighteen languages!
But her thought is one"
68. The great Tamil poet Kaniyan Pookundranar wrote :
"Yadhum oore yaavarum kelir"
Which means -
"All places are my own places
All people are my own kith and kin"
69. Similarly, the great poet Saint Tiruvalluvar in Chapter 74 verse 735 of.
Tirukkural wrote :
"Palkuzhuvum paazhseyyum utpagayum Vendalaikku kolkurumbum illadhu nnadu"
Which means
"That alone can be called as a prosperous country
which is free from separatist tendencies and people who harm its sovereignty".
70. In the Shanti Parv of Mahabharata Bhishma Pitamah tells Yudhishthir :
(Chapter 107/108 Shloka 14)

Which means -
"Republics have been destroyed only because of internal divisions, it is
only when there are internal divisions between the people, that an enemy can destroy it,
hence a republic should always try to achieve, unity and good relations between its
people."
In the same Shanti Parv, Bhishma Pitamah also said :
Which means
"The intelligent authorities of a republic should suppress
those leaders of factions who try to divide the people."
(Chapter 107/108 Shloka 26)
71. In the present case we have seen that for a long period slaughter houses have been
closed in Gujarat for a few days out of respect for the sentiments of the Jain community,
which has a sizable population in Gujarat and Rajasthan. We see nothing unreasonable in
this restriction.
72. As already stated above, it is a short restriction for a few days and surely the non-
vegetarians can remain vegetarian for this short period. Also, the traders in meat of
Ahmedabad will not suffer much merely because their business has been closed down for
9 days in a year. There is no prohibition to their business for the remaining 356 days in a
year. In a multi cultural country like ours with such diversity, one should not be over
sensitive and over touchy about a short restriction when it is being done out of respect for
the sentiments of a particular section of society. It has been stated above that the great
Emperor Akbar himself used to remain a vegetarian for a few days every week out of
respect for the vegetarian section of the Indian society and out of respect for his Hindu
wife. We too should have similar respect for the sentiments for others, even if they are a
minority sect.
73. In view of the above, the appeal is allowed. The impugned judgment is set aside and
the impugned resolutions of the Municipal Corporation of Ahmedabad are held to be
valid. There shall be no order as to costs.
74. Resultantly, all the connected appeals stand allowed. There shall be no order as to
costs.
Appeal allowed.
AIR 2008 SUPREME COURT 1903 "Hem Chand v. State of Jharkhand"
(From : Jharkhand)*
-2008.
Hem Chand v. State of Jharkhand.
Criminal P.C. (2 of 1974), S.228 - CHARGE - DOCUMENTS - Framing of charge -
Documents produced by accused in defence - Cannot be looked into.
The Court at the stage of framing charge
@page-SC1904
exercises a limited jurisdiction. It would only have to see as to whether a prima facie case
has been made out. Whether a case of probable conviction for commission of an offence
has been made out on the basis of the materials found during investigation should be the
concern of the Court. It, at that stage, would not delve deep into the matter for the
purpose of appreciation of evidence, It would ordinarily not consider as to whether the
accused would be able to establish his defence, if any, The stage for appreciating the
evidence for the purpose of arriving at a conclusion as to whether the prosecution was
able to bring home the charge against the accused or not would arise only after all the
evidences are brought on records at the trial. The refusal by Court to look into documents
filed by the accused along with his application for discharge is proper. (Paras 8, 12)
2004 AIR SCW 6813 : AIR 2005 SC 359 (Ref.) 12
Saurabh Mishra, for Appellant; B.B. Singh, for Respondent.
* Cri. Revn. No. 1074 of 2004, D/- 22-2-2007 (Jhar).
Judgement
2. Appellant is an IPS Officer of 1971 batch of the West Bengal cadre. He joined the
Central Coalfields Ltd., a Government Company as a Chief Vigilance Officer on
deputation. He was re-designated as Executive Director (Vigilance).
A raid was conducted by the CBI Officials at his residence in the night of 30/31-8-1992,
pursuant whereto, a first information report was lodged. A charge sheet was filed in the
said case against him on or about 18-6-1997. Appellant filed an application inter alia for
supply of the copies of item Nos. 1 and 20 of the document mentioned in the said charge-
sheet. The same was not issued to him. Several contentions in regard thereto were raised.
He moved the High Court in revision which was marked as Criminal Revision No. 90 of
1999.
3. By an order dated 20-4-2001, a learned single Judge of the High Court directed supply
of the said documents to the petitioner, stating;
"16. Various points were raised on behalf of both sides but it is unnecessary to enter into
all those points on merit at this stage as I find that the order passed by the learned Special
Judge has got to be set aside and thus it would be appropriate to remit the matter back to
the Court below leaving it open to the parties to raise their respective contentions before
the learned Special Judge, C.B.I. and the learned Special Judge, C.B.I., Ranchi is directed
to furnish the copies of Item Nos. 1 and 20 of the Search List to the accused/petitioner
and those documents may also be taken into consideration along with other documents
placed by the C.B.I. while passing the order on the matter of discharge."
4. Appellant filed an application for his discharge inter alia on the premise that no case
for framing of charge has been made out. He, furthermore, filed some documents in his
own defence. The said application for discharge was rejected by the learned Special
Judge, CBI, opining that the documents relied on by the appellant cannot be looked into
for the purpose of passing an order on his application for discharge. Revision Application
filed by the appellant thereagainst under Section 397 of the Code of Criminal Procedure
has been dismissed by the High Court by reason of the impugned judgment.
5. Appellant admittedly, is facing trial for an alleged commission of an offence under
Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1998.
Allegations against the appellant are that he was found to be in possession of assets more
than his known source of income.
The question is as to whether any documents, whereupon the appellant may rely upon in
support of his defence, can be looked into at the stage of framing of the charge.
6. Mr. Saurabh Mishra, the learned counsel appearing on behalf of the appellant would
submit that keeping in view the order passed by the High Court on 20-4-2001 in Criminal
Revision No. 90 of 1999, it is evident that Central Bureau of Investigation itself has
seized the said documents from the residence of the appellant and in that view of the
matter, he could rely thereupon,
7. Mr. B. B. Singh, the learned counsel appearing on behalf of the State, on the other
hand, would submit that from a perusal of the order passed by the learned Special Judge,
it would be evident that the appellant intended to rely upon some documents which were
filed before the learned Special Judge for the first time, the impugned judgment should
not be interfered with.
@page-SC1905
8. It is beyond any doubt or dispute that at the stage, of framing of charge, the Court will
not weigh the evidence. The stage for appreciating the evidence for the purpose of
arriving at a conclusion as to whether the prosecution was able to bring home the charge
against the accused or not would arise only after all the evidences are brought on records
at the trial.
The documents whereupon the appellant intended to rely upon were :(1) an order of
assessment passed by the Income-tax Authority and (ii) his declaration of assets.
9. It is one thing to say that on the basis of the admitted documents, the appellant was in a
position to show that the charges could not have been framed against him, but it is
another thing to say that for the said purpose he would rely upon some documents
whereupon the prosecution would not rely upon.
10. The learned Special Judge has noticed that sixteen number of documents had been
filed by the appellant together with his application for discharge. The prosecution has
also relied upon a large number of documents which were 56 in number, out of which 5
being related to the matter of investigation, have nothing to do with the merit of the
matter. Out of the 51 documents, seventeen related to the expenditure purported to have
been incurred by the appellant. Four documents related to income of the appellant's wife.
Out of remaining 30 documents, 6 documents related to the assets of his wife exclusively
and one related to his mother's assets. 23 documents, thus, related to the assets of the
appellant which are reflected in his declaration of assets made annually by him.
11. The learned Special Judge, however, considering the documents on record opined;
".......But at this stage I find that unless the documents filed by the defence are not
formally proved no finding can be given, because it would amount to discussion the merit
of the case before conclusion of trial. However, the materials collected in the case diary
by the prosecution reveals that there are ground for framing charge under the aforesaid
sections against the accused petitioner. Hence, the above petition stands rejected."
12. The learned counsel for the CBI is, I thus, correct in his submission that what has
been refused to be looked into by the learned Special Judge related the documents filed
by the appellant along with his application for discharge.
The Court at the stage of framing charge exercises a limited jurisdiction. It would only
have to see as to whether a prima facie case has been made out. Whether a case of
probable conviction for commission of an offence has been made out on the basis of the
materials found during Investigation should be the concern of the Court. It, at that stage,
would not delve deep into the matter for the purpose of appreciation of evidence. It would
ordinarily not consider as to whether the accused would be able to establish his defence,
if any.
In State of M.P. v. Mohanlal (2000 AIR Soni, [(2000) 6 SCC 338], this Court has held;
2000 AIR SCW 2674
"7. The crystallised judicial view is that at the stage of framing charge, the Court has to
prima facie consider whether there is sufficient ground for proceeding against the
accused. The Court is not required to appreciate evidence to conclude whether the
materials produced are sufficient or not for convicting the accused.
It was furthermore observed;
"......As is evident from the paragraph extracted above if the Court is satisfied that a prima
facie case is made out for proceeding further then a charge has to be framed. Per contra, if
the evidence which the prosecution proposes to produce to prove the guilt of the accused,
even if fully accepted before it is challenged by the cross-examination or rebutted by the
defence evidence, if any, cannot show that the accused committed the particular offence
then the charge can be quashed."
We agree with the said view.
See also State of Orissa v. Debendra Nath Padhi ((2005) 1 SCC 568).We may, however,
add that in this case, this Court is not concerned with other legal principles, which would
be applied in determining the issues at that stage. 2004 AIR SCW 6813
13. For the reasons aforementioned, there is no merit in this appeal which is dismissed
accordingly.
Appeal dismissed.
@page-SC1906
AIR 2008 SUPREME COURT 1906 "Shivnath Rai Harnarain (India) Ltd. v. M/s. A. G.
Abdul Rehman"
Coram : 1 H. K. SEMA, J.
Arbitration Petition No.4 of 2007, D/- 10 -3 -2008.
M/s. Shivnath Rai Harnarain (India) Ltd. v. M/s. Abdul Ghaffar Abdul Rehman (D) by
L.Rs.
Arbitration and Conciliation Act (26 of 1996), S.11(6), S.42 - ARBITRATION AND
CONCILIATION - APPOINTMENT - CHIEF JUSTICE - Appointment of arbitrator -
Application for - Tenability before C.J.I. - Agreement providing for reference to named
arbitrator for resolution of dispute outside India - Award passed by arbitrator - Set aside
by Court in Singapore with liberty to apply for fresh arbitration - Party seeking fresh
arbitration - Has to approach Singapore Court for appointment of arbitrator - CJI has no
jurisdiction to entertain such application.
2007 AIR SCW 4030, Disting. (Paras 18, 19, 20)
2007 AIR SCW 4030 : AIR 2007 SC 2327 : 2007 CLC 1032 (Disting.) 15
Dr. A.M. Singhvi, Vijay Hansaria, Sr. Advs., Punit Dutt Tyagi, for Petitioner; Kailash
Vasdev, Sr. Advocate, M/s. Pradeep Sancheti, Rajiv Agnihotry, Praveen Kumar, for
Respondents.
Judgement
1. H. K. SEMA, J. :- . This is an application filed under Section 11(6) of the Arbitration
and Conciliation Act, 1996 (in short "the Act") for appointment of an Arbitrator.
2. I have heard Dr. A.M. Singhvi, learned senior counsel for the applicant and Mr.
Kailash Vasdev, learned senior counsel for the respondents at length.
3. The sole question that arises for consideration in this petition is as to whether an
application under Section 11 (6) of the Act is maintainable?
4. In view of the order that I propose to pass, it may not be necessary to recite the entire
facts, leading to the filing of the present application.
5. Suffice it to say that contract Nos. 2001- SI/25, 2001-SI/26 both dated 12th January
2001 and Contract No. 2001-SII/41 dated 28th February 2001 were amended/modified by
way of a common addendum No. 1 on 2.3.2001. By an addendum dated 2nd March, 2001
clause (ii) was introduced. It reads :
"(ii) Settlement of disputes through Indian Arbitration Council, Delhi."
6. The dispute having arisen and as agreed to by both the parties the matter was referred
to one Mr. Samuel J. Marshall, who was agent for both the parties in the transactions and
who also agreed to mediate between the parties. With the intervention of Mr. Samuel J.
Marshal, the parties arrived at an agreement to resolve the dispute between the parties.
The settlement agreement was entered into on 18.1.2002. Clause 18 of the settlement
reads :
"18. Should any dispute or non implementation arise this will be adjudicated solely by
Mr. Samuel J. Marshall."
7. It also appears from the letter dated 12.11.2002 and accepted on 21.11.2002 the parties
have agreed to resolve the dispute under the following conditions :
1. That the venue for resolution of this dispute will take place in Singapore, assuming that
Mr. Marshall is resident there, alternatively the UK;
2. That the Agreement dated 18th January 2002 is governed by Indian Law; and
3. UNCITRAL rules will apply.
8. Pursuant to the aforesaid agreement, an application was filed sometime in January
2004, before the Arbitrator namely Mr. Samuel J. Marshall. However, the respondents
herein did not participate in the arbitration proceedings. On 20.6.2005, the Arbitrator
proceeded with the arbitration at Singapore and passed the Award in favour of the
applicant.
9. Aggrieved by the Award dated 20.6.2005, the respondents herein challenged the said
Award before the High Court of Republic of Singapore in Originating Motion
No.35/2005/H inter alia on the ground of violation of principles of natural justice. On
31.7.2006, the High Court of Singapore, set aside the Award with a liberty to the parties
to apply for fresh arbitration. This is undisputed that the applicant herein did not apply for
fresh arbitration before the Arbitrator at Singapore. However, this application has been
filed before this Court under Section 11 (6) of the Act.
10. Dr. Singhvi, learned senior counsel for the applicant, would submit that the agreement
is governed by Indian Law and, therefore, the law in India is applicable and thus, this
Court can appoint Arbitrator in
@page-SC1907
exercise of power under Section 11 (6) of the Act. Per contra Mr. Kailash Vasdev, learned
senior counsel for the respondents, would content that this application under Section
11(6) is not maintainable inasmuch as the parties have referred to the Arbitrator Mr.
Samuel J. Marshall in Singapore. The Award was passed by Mr. Marshall at Singapore
and the Award was set aside by the High Court of Singapore with liberty to apply for
fresh arbitration and, therefore, the appropriate Court to apply is the Court at Singapore
and this application is misconceived.
11. The facts are not disputed that the parties by a mutual agreement referred the dispute
to Mr. Samuel J. Marshall. Mr. Samuel J. Marshall proceeded with the arbitration and
passed the Award on 20.6.2005, which was set aside by the High Court of Singapore on
31.7.2006.
12. Section 2(l)(e) of the Act defines Court. It reads :
"(e) "Court" means the principal Civil Court of original jurisdiction in a district, and
includes the High Court in exercise of its ordinary original civil jurisdiction, having
jurisdiction to decide the questions forming the subject-matter of the arbitration if the
same had been the subject-matter of a suit, but does not include any civil court of a grade
inferior to such principal Civil Court, or any Court of Small Causes"
Further, Section 42 of the Act provides jurisdiction of the Court. It reads :
"Jurisdiction. - Notwithstanding anything contained elsewhere in this Part or in any other
law for the time being in force, where with respect to an arbitration agreement any
application under this Part has been made in a Court, that Court alone shall have
jurisdiction over the arbitral proceedings and all subsequent applications arising out of
that agreement and the arbitral proceedings shall be made in that Court and in no other
Court."
13. Section 42 read thus, provides that notwithstanding anything contained elsewhere in
this part or in any other law for the time being in force, where with respect to an
arbitration agreement any application under this part has been made in a court, that court
alone shall have jurisdiction over the arbitral proceedings and all subsequent applications
arising out of that agreement and the arbitral proceedings shall be made in that court and
in no other court.
14. In the present case, as already adumbrated, the parties agreed to refer to the
Arbitrator, Mr. Samuel J. Marshall for resolution of the dispute at Singapore. The Award
of the Arbitrator was passed at Singapore. The Award of the Arbitrator was set aside by
the High Court of Singapore and, therefore, in my view, the Court at Singapore, which
alone shall have jurisdiction over the arbitral proceedings and all applications arising out
of that agreement shall be made in that Court and no other Court.
15
In support of his contention, Dr. Singhvi referred to the judgment of this Court, rendered
in National Agricultural Coop. Marketing Federation India Ltd. Vs. Gains Trading Ltd.,
(2007) 5 SCC 692. In that case Clause 17 of the agreement deals with arbitration and it
provides that the dispute be settledamicably by negotiation and mutual agreement and if
no settlement can be reached the matter in dispute shall then be referred to and finally
resolved by an arbitration in Hong Kong in accordance with the provisions of the
Arbitration and Conciliation Act, 1996. 2007 AIR SCW 4030
16. The question raised in that case was that whether Section 11 of the Act is inapplicable
in regard to the arbitrations, which are to take place outside India? The argument in that
case was that as the venue of arbitration was outside India, Section 11 would not apply
and, therefore, neither the Chief Justice of India nor his designate will have the
jurisdiction to appoint an arbitrator.
17. The aforesaid contention has been repelled in paragraph 9 of the judgment as under :-
"9. The rules of interpretation require the clause to be read in the ordinary and natural
sense, except where that would lead to an absurdity. No part of a term or clause should be
considered as a meaningless surplusage, when it is in consonance with the other parts of
the clause and expresses the specific intention of parties. When read normally, the
arbitration clause makes it clear that the matter in dispute shall be referred to and finally
resolved by arbitration in accordance with the provisions of the Arbitration and
Conciliation Act, 1996 (or any statutory modification, enactment or amendment
@page-SC1908
thereof) and the venue of arbitration shall be Hong Kong. This interpretation does not
render any part of the arbitration clause meaningless or redundant. Merely because the
parties have agreed that the venue of arbitration shall be Hong Kong, it does not follow
that laws in force in Hong Kong will apply. The arbitration clause states that the
Arbitration and Conciliation Act, 1996 (an Indian statute) will apply. Therefore, the said
Act will govern the appointment of arbitrator, the reference of disputes and the entire
process and procedure of arbitration from the stage of appointment of arbitrator till the
award is made and executed/given effect to.
18. In my view, the facts of that case are not squarely applicable in the present case. The
facts of the case at hand, as already adumbrated, the parties to the agreement agreed to
refer the dispute to the Arbitrator Mr.Samuel J.Marshall. The Award was passed by the
said Arbitrator at Singapore. The Award was also set aside by the High Court of
Singapore with liberty to apply for fresh arbitration.
19. Having mutually agreed to have the dispute referred to an arbitrator at Singapore, the
applicant is not permitted to turn around and say that this Court be appointed an
arbitrator.
20. In the facts and circumstances of the case, as recited above, filing of an application
under Section 11 (6) of the Act, before this Court, is misconceived. The application is,
accordingly dismissed. No costs.
Application dismissed.
AIR 2008 SUPREME COURT 1908 "Ganga Nagar Central Co-op. Bank Ltd. v. Pushpa
Rani"
-2008.
Ganga Nagar Central Co-op. Bank Ltd. v. Pushpa Rani and Anr.
Consumer Protection Act (68 of 1986), S.2(1)(e) - CONSUMER PROTECTION -
BANKING - Deficiency in service - Banking services - Delay in refund of fixed deposit
by Mini Co-operative Bank - Deposit not guaranteed by Apex Bank - No liability can be
fastened on it. (Para 5)
Manoj Prasad, for Appellant.

* From judgment and order of the National Consumer Disputes Redressal Commission,
New Delhi in Rev. Petn. Nos.167 168 and 169 of 2,004, D/- 25-7-2005.
Judgement
HARJIT SINGH BEDI, J. :-Leave granted.
2. The Ganga Nagar Central Cooperative Bank Limited (hereinafter called the "Bank") is
an apex body under which respondent No.2, the Cooperative Mini Bank, Sujavalpur
(hereinafter referred to as the "Mini Bank") carries on its banking activities. The private
respondents herein opened their savings/ fixed deposit accounts with the Mini Bank and
after having used the services of the bank for some time moved for the withdrawal of the
money deposited by them. Their request was, however, turned down on the ground that
there was no balance standing in their accounts. The respondents also visited the office of
the Bank and requested for its intercession in the matter but this request too was refused.
The depositors accordingly moved a petition before the District Forum, Sri Ganganagar
praying for the release of the amounts deposited by them and for compensation and
interest. Several pleas were taken by the respondents. The Mini Bank took the stand that
the depositors had in fact no account with them whereas the Bank took the plea that they
were in no way responsible for the management of the affairs of the Mini Bank which
was an independent body and not responsible to it in any manner. The District Forum in
its order dated 20th January 2003 held that the money had been deposited with the Mini
Bank and it alone was liable for the deficiency of services and as such the depositors
were entitled to relief. The Forum however absolved the Bank (the present appellant) of
any liability by observing that there was no evidence to show that the Mini Bank was in
any way working under the control of the Bank in these matters. The District Forum
accordingly directed the release of the amount of the deposits plus Rs. 2, 000/- as
compensation and Rs. 1,000/-as litigation expenses whereas the petition qua the Bank
was dismissed. An appeal was thereafter filed before the State Commission by the Mini
Bank against the aforesaid order and the Commission endorsed the findings of the
District Forum that there had been a deficiency of services qua the depositors and further
held that as the Bank was controlling and supervising the affairs of the Mini Bank and
had guaranteed repayment upto Rs. 10,000/- it too was liable to make good the loss to
that extent and in conclusion
@page-SC1909
observed :
"In the result the impugned order is modified to the effect that the respondent No. 2 bank
shall also be jointly and severally liable to pay to the respondent complainants the
decretal amount to the extent of Rs. 10,000/- only.
Insofar as the liability of the appellant bank is concerned that would be governed by the
order of the Forum, but interest chargeable would be @ 9% p.a. instead of 12% p.a., as
awarded by the Forum. The impugned orders shall stand modified accordingly."
3. The matter was thereafter taken in appeal to the National Consumer Commission by
the Bank which maintained the findings of the State Commission and accordingly
dismissed the revision petitions. It is in these circumstances that the matter is before us.
4. The learned counsel for the appellant Bank has raised only one argument during the
course of the hearing. He has pointed out that before the Bank could be foisted with the
liability to guarantee the repayment up to Rs. 10,000/-, it was incumbent for the Mini
Bank to have become a part of the Coffers Card Scheme which required the completion
of certain formalities provided in the Scheme, as a pre-requisite for its applicability. It has
been brought to our notice that clause 12 of the scheme provided that in order to become
a part and parcel thereof an application had to be filed in form No. 4 and the Mini Bank
could only become part of the scheme after the formal approval had been granted by the
competent authority and (it has been submitted) that as the Mini Bank had not made any
request for being covered by the scheme, the question of the Bank being made liable up
to Rs. 10,000/- did not arise. It has also been highlighted as per the clauses of the scheme
that the FDR issued thereunder was required to be embossed with the words that it was
guaranteed up to Rs. 10,000/- by the Bank and this too having not been done, there was
no justification in fastening any liability on the Bank.
5. We have considered the arguments raised by the learned counsel for the appellant in
the background of the fact that the respondents though served notice, did not put in
appearance on the date of arguments. However several days after the judgment had been
reserved, written submissions have been filed which we have perused and taken into
consideration. We however find that there is no answer to the issues raised by the
appellant's counsel. We therefore take it that assertions made by the learned counsel are
admitted and that the Mini Bank had not opted to become a member of the Scheme which
could have fastened a liability on the Bank. We accordingly allow the appeal, set aside
the order of the National Commission dated 25th July 2005 and that of the State
Commission dated 14th August 2003 and restore that of the District Forum.
6. There will, however, be no order as to costs.
Appeal allowed.
AIR 2008 SUPREME COURT 1909 "Tanusree Basu v. Ishani Prasad Basu"
(From : Calcutta)*
-2008.
Tanusree Basu and Ors. v. Ishani Prasad Basu and Ors.
Civil P.C. (5 of 1908), S.151 - INHERENT POWERS - OBJECT OF AN ACT -
INJUNCTION - PARTITION - Scope - Grant of injunction - S.151 conferred power upon
Court if matter is not covered by R.1 and R.2 of O.39 - Suit for partition - Parties in
possession of separate flats as per mutual agreement - There was no demarcated
possession according to respective share of parties - Plaintiff, co-owner, cannot during
pendency of suit dispossess defendant by putting padlock - Order restoring parties back
to same position by directing removal of padlock - No interference.(Paras 12, 13, 16, 19)
2006 AIR SCW 1077 : AIR 2006 SC 1474 (Ref.) 17
(2006) FMA No. 988 of 2005, D/-21-9-2006 (Cal) 5
2000 (2) Cal LT 83 16
AIR 1998 Bom 114 14
AIR 1967 SC 109 (Ref.) 15
AIR 1962 SC 527 (Ref.) 13
AIR 1941 Cal 635 15
AIR 1940 Cal 363 15
AIR 1914 Cal 362 16
@page-SC1910
Haradhan Banerjee, Ranjan Mukherjee, S.C. Ghosh, for Appellants; Animesh Kanti
Ghosal, Sr. Advocate, Pranab Kumar Mullick, for Respondents.
* C.O. No. 4501 of 2006, D/- 17-5-2007, reported in 2007 (3) Cal HN 724 : AIR 2007
NOC 2459.
Judgement
2. The parties hereto are co-sharers. A suit was filed for partition. Admittedly they had
entered into a development agreement. The properties which were in possession of the
owners were described in Schedule A of the plaint; whereas the properties which were
subject matter of the development agreement were described in Scheduled B thereof in
the plaint filed by the appellant in the Court of 8th Civil Judge (Sr. Division), Alipore
registered Title Suit No. 9 of 2004.
In terms of the development agreement, three flats and parking spaces for three cars had
been allotted to the parties. An application for grant of injunction in respect of Schedule A
property restraining the respondents from handing over the owners the allotted flats and
from selling out any flats in the premises in question, was filed in the suit on or about
14.03.2004 wherein it was inter alia averred :
"That at present the plaintiffs and the defendant Nos. 1 to 6 are occupying 3 flats and 3
garages at premises No. 46A, Purna Chandra Mitra Lake, Kolkata 700033, which are also
undivided property."
It was furthermore averred :
"...That at present the plaintiffs have 93/240, undivided share, the legal heirs of late
Pinaki Prosad Basu (the defendant Nos. 2 to 6) have 54/240, undivided share and the
defendant No. 6 have 93/240, undivided share of the schedule 'A' and 'B' properties.
Although by amicable agreements the parties are in possession of separate flats of
schedule 'B' hereunder, there has not been any demarcated possession according to the
respective share of the parties."
3. However, yet again on 11.04.2005, the plaintiffs filed an application for grant of
injunction in respect of the schedule B property seeking to restrain the respondents from
transferring or letting out any portion of the land to any third party.
An order of injunction was issued on the said application dated 05.03.2004 but the same
was refused in respect of the application dated 11-04-2005 by an order dated 16.07.2005.
An appeal was preferred there-against which was marked as F.M.A. No. 988 of 2005.
4. The said appeal was dismissed by an order dated 10-08-2006 for default as process fee
was not deposited. It was, however, restored to its original file. Immediately thereafter,
however, the appellants allegedly put a padlock in flat No. 201 which was in occupation
of the first respondent. On or about 14-08-2006, an application was filed by him before
the 8th Civil Judge (Senior Division) Alipore inter alia praying for :
"9. Your petitioner states that the plaintiff by show of muscle and at the instance of
musclemen in their side causing obstruction to use and enjoy the flat No. 201 of the 'B'
schedule property to your petitioner. Your petitioner is a bachelor and aged about 72 years
and has become totally perplexed as he has not been allowed to use and enjoy in his own
property. Your petitioner further states that after construction by the promoter three flats
and three car parking spaces allotted to the owners of three flats and as has been observed
by the Id. Court but the plaintiffs carrying a fig to court's law and order causing
obstruction, inconvenience to your petitioner to use and enjoy the flat No. 201 of the 'B'
schedule property by putting padlock and keeping sundry household articles."
5. By an order dated 21.09.2006, a Division Bench of the Calcutta High Court while
disposing of FMA No. 988 of 2005 directed as under :
"In such view of the matter, we dispose of this appeal and the application by holding that
the parties to the suit shall be entitled to maintain their respective possession in the suit
properties as on today without being entitled to make any change in the nature and
character of the same. It is, however, made clear that if there be any pending application
before the Trial Court by alleging that since after making of the impugned order by the
trial court, a change has been made by some of the parties in respect of the respective
possession by force and/or illegality, then the trial court will be entitled to deal with the
said application and to pass an appropriate orders irrespective of the above order of
disposal of this appeal."
6. By an order dated 21.11.2006, the learned Civil Judge allowed the application dated
14.08.2006 holding :
"From the order of the Hon'ble High Court it is palpably clear that full liberty has been
given to the Trial Court to dispose of the
@page-SC1911
application of the defendant No. 1 filed u/ S. 151 CPC in accordance with the law. It is
already stated in my foregoing discussion that the materials on record go to show that
defendant No. 1 is in possession of flat No. 201 of Schedule 'B' property while the
plaintiffs are contending that they are in possession of the said flat. Considering the
objection it is crystal clear that the defence version that the plaintiffs illegally put padlock
and kept some sundry articles in the said flat is proved.
Under the facts and circumstances I think that the plaintiff's should not be allowed to take
the law in their own hands, and they are not supposed to make any obstruction to the
defendant No. 1 in peaceful enjoyment of flat No. 201 of Schedule 'B' property.
Therefore, the plaintiffs are hereby directed to remove the padlock and sundry articles
from flat No. 201 immediately and they are hereby restrained from making any further
obstruction to the defendant No. 1 in peaceful enjoyment of the said flat."
7. In the meanwhile, however, a preliminary decree was passed in the suit.
8. Appellants filed a revision application before the High Court against the said order
dated 21-11-2006 which by reason of the impugned judgment has been dismissed holding
:
"... It further appears from the said reports that an interim mandatory order of injunction
can be passed only in circumstances which are clear and the prima facie materials clearly
justify a finding that the status quo has been altered by one of the parties to the litigation
and the interests of justice demanded that the status quo ante be restored by way of an
interim mandatory injunction. . ."
"... Thus it cannot be said that in the present case there is no prima facie finding by the
learned Trial Court. Therefore, in the present facts and circumstances of the case, the said
reported case cannot be of any help to the petitioners. It is clear that the learned Trial
Court after having recorded its prima facie finding in respect of possession by the
respective parties in respect of the 'B' schedule property, the learned Trial Court disposed
of the application for injunction on contest."
9. The High Court noticed the discrepancies in the averments made by the plaintiffs at
different stages of the proceedings and upon consideration of the rival submissions
opined :
"It appears from the materials on record, as already discussed above, and after having
considered the respective submissions made by the learned counsels for the respective
parties, as already discussed above, that the defendant No. 1 has been in possession of the
said flat No. 201 at all material times. Copies of certain documents which have been
annexed to the affidavit-in-opposition, as discussed above, shows that the learned Trial
Court was not in error in making a prima facie finding with regard to the respective
possession of the parties in the 'B' schedule property. It further appears that the
plaintiffs/petitioners at the initial stage did not dispute the possession of the defendant
No. 1 in respect of the said flat No. 201 but only at a later stage the plaintiffs/petitioners
became interested in denying the possession of the defendant No. 1 in respect of flat No.
201. The plaintiffs/ petitioners could not substantiate their claim in respect of the said flat
No. 201 by any supporting document."
10. Mr. Haradhan Banerjee, learned counsel appearing on behalf of the appellants,
submitted that keeping in view the nature of preliminary decree passed by the learned
Civil Judge, the Trial Judge as also the High Court committed a serious error in passing
the impugned judgment.
It was urged that the parties being coowners and a final decree in the suit having not yet
been passed, it is impermissible in law to pass an order of mandatory injunction and that
too without arriving at a definite conclusion that the first respondent was in exclusive
possession of Flat No. 201.
11. Mr. Animesh Kanti Ghosal, learned counsel appearing on behalf of the first
respondent, on the other hand, would support the impugned judgment.
12. There cannot be any doubt or dispute as a general proposition of law that possession
of one co-owner would be treated to be possession of all. This, however, in a case of this
nature would not mean that where three flats have been allotted jointly to the parties, each
one of them cannot be in occupation of one co-owner separately.
We have noticed hereinbefore that the plaintiffs-appellants themselves in no uncertain
terms admitted that by reason of
@page-SC1912
mutual adjustment the parties had been in separate possession of three flats, viz., flat Nos.
201, 202 and 301, if they were in possession of the separate flats, plaintiffs as coowners
could not otherwise have made any attempt to dispossess the first respondent by putting a
padlock. The padlock, according to the first respondent, as noticed hereinbefore, was put
by the plaintiffs appellants immediately after the appeal preferred by them in the High
Court was dismissed.
13. The padlock was directed to be removed by the learned Civil Judge by an order dated
21-11-2006. We do not find any illegality therein.
It is now a well-settled principle of law that Order 39, Rule 1 of the Code of Civil
Procedure (Code) is not the sole repository of the power of the court to grant injunction.
Section 151 of the Code confers power upon the court to grant injunction if the matter is
not covered by Rules 1 and 2 of Order 39 of the Code. [See Manohar Lal Chopra v. Rai
Bahadur Rao Raja Seth Hiralal AIR 1962 SC 527 and India Household and Healthcare
Ltd. v. LG Household and Healthcare Ltd. (2007) 5 SCC 510] 2007 AIR SCW 1721
14
Strong reliance has been placed by Mr. Banerjee on a judgment of Bombay High Court in
Bhaguji Bayaji Pokale and Ors. v. Kantilal Baban Gunjawate and Ors. [1998 (3) CCC
377 (Bom.)] wherein it was held : AIR 1998 Bom 114
"7. With regard to second substantial question of law. i.e. the co-owner cannot claim an
order of injunction against another co-owner with regard to the property owned jointly,
the learned Counsel for the appellants had relied upon the Apex Court's judgment
reported in Mohammad Baqar and others v. Naim-un-Nisa Bibi and others. The Apex
Court has very categorically held in para No. 7 as under :
"The parties to the action are co-sharers, and as under the law. possession of one cosharer
is possession of all co-sharers, it cannot be adverse to them, unless there is a denial of
their right to their knowledge by the person in possession, and exclusion and ouster
following thereon for the statutory period."
It was observed :
"... Similarly, the legal position that the co-owner or co-sharer of the property can never
claim ownership by adverse possession of the other share. This is also a well settled law,"
We are concerned in this case with a question whether if a co-owner was in specific
possession of the Joint property, he could be dispossessed therefrom without the
intervention of the court. In this case, the first respondent is not claiming title of adverse
possession. The said decision has, therefore, no application to the fact of the present case.
15. Reliance has also been placed by Mr. Banerjee in Abu Shahid v. Abdul Hoque
Dobhash and another [AIR 1940 Cal 363], Hemanta Kumar Banerjee and others v. Satish
Chandra Banerjee and others [AIR 1941 Cal 635] and Jahuri Sah and others v. Dwarika
Prasad Jhunjhunwala and others [AIR 1967 SC 109].
In Abu Shahid (supra), the question which arose for consideration was in regard to plea of
ouster vis-a-vis rendition of accounts. We are not concerned with such a question in this
case.
In Hemanta Kumar Banerjee and others (supra), the question which arose for
consideration was as to whether the rule against partition amongst co-sharers is an elastic
one. Again, we are not concerned with such a question here.
In Jahuri Sah (supra), this Court opined : AIR 1967 SC 109
"12. What we have to consider then is whether the contract for payment of compensation
is not enforceable. It is no doubt true that under the law every co-owner of undivided
property is entitled to enjoy the whole of the property and is not liable to pay
compensation to the other co-owners who have not chosen to enjoy the property. It is also
true that liability to pay compensation arises against a co-owner who deliberately
excludes the other co-owners from the enjoyment of the property. It does not, however,
follow that the liability to pay compensation arises only in such a case and no other. Co-
owners are legally competent to come to any kind of arrangement for the enjoyment of
their undivided property and are free to lay down any terms concerning the enjoyment of
the property. There is no principle of law which would exclude them from providing in
the agreement that those of them as are in actual occupation and enjoyment of the
property shall pay to the other co-owners compensation..."
@page-SC1913
These observations do not assist the case of the appellants. If parties by mutual agreement
entered into possession of separate flats, no, co-sharer should be permitted to act in
breach thereof.
16. It is not the law that a party to a suit during pendency thereof shall take law into his
hands and dispossess the other cosharer.
If a party takes recourse to any contrivance to dispossess another, during pendency of the
suit either in violation of the order of injunction or otherwise, the court indisputably will
have jurisdiction to restore the parties back to the same position.
In Israil and Others v. Samset Rahman and Others [(1914) 18 Cal WN 176 : AIR 1914
Cal 362], Mookerjee, J. held that a co-owner being in exclusive possession of a joint
property would be entitled to injunction. If a person is entitled to a prohibitory injunction,
a' fortiori he shall also be entitled to a mandatory injunction. [See also Spandan
Diagnostic and Research Centre Private Limited and Ors. v. Shri Ritendra Nath Ghosh
and Ors. 2000 (2) Cal LT 83]
17
. We are not oblivious of a judgment of this Court in Kishore Kumar Khaitan and Anr. v.
Praveen Kumar Singh [(2006) 3 SCC 312], wherein one of us (Sinha, J.) was a member,
where it was held : 2006 AIR SCW 1077, Para 13
"14. Thus, prima facie, we find that the tenancy claimed by the plaintiff remains to be
proved in the suit. For the present, we should say that prima facie, the plaintiff has not
been able to establish the foundation for the possession claimed by him. It is significant
to note that not even another tenant of the building among the various tenants in the
building, was examined to establish that the plaintiff while in possession, had been
dispossessed on 20-6-1998 as claimed by him. Any way, the Additional District Judge has
not referred to any such evidence except referring to the affidavit of Shivanand Mishra,
who even according to the plaintiff was no more in occupation. Thus, the disturbance of
the status quo by the defendants has not been established. Thus, prima facie it is clear that
the plaintiff has not laid the foundation for the grant of an interim order of mandatory
injunction in his favour. The order so passed by the Additional District Judge, and
confirmed by the High Court, therefore, calls for interference in this appeal,"
18. The fact situation obtaining herein, however, is absolutely different, In this case, such
a foundational fact has not only been raised by the respondents, the appellants admitted
the factual scenario in that behalf. No party, it is trite, ordinarily should be allowed to
take benefit of his own wrong.
19. For the reasons aforementioned and particularly having regard to the fact situation
obtaining herein, we are of the opinion that the impugned judgments warrant no
interference. Accordingly, the appeal is dismissed with costs. Counsel's fee assessed at
Rs. 10,000/-.
Appeal dismissed.
AIR 2008 SUPREME COURT 1913 "Dhananjay Malik v. State of Uttaranchal"
(From : Uttaranchal)
Civil Appeal Nos. 1771 with 1772 and 1773 of 2008 (arising out of SLP (C) Nos. 1466
with 2743 and 7989 of 2006), D/- 5 -3 -2008.
Dhananjay Malik and Ors. v. State of Uttaranchal and Ors.
(A) Constitution of India, Art.16 - EQUALITY IN PUBLIC EMPLOYMENT -
APPOINTMENT - ESTOPPEL - Appointment - Eligibility criteria - Challenge as being
contrary to Service Rules - Cannot be raised by candidates who have participated in
selection process.
Evidence Act (1 of 1872), S.115.
1995 AIR SCW 1109, Foll. (Paras 7, 8)
(B) Constitution of India, Art.309, Art.16, Art.162 - U.P. Subordinate Educational
(Trained Graduates Grade) Service Rules (1983), R.1 - SERVICE MATTERS -
EDUCATION - APPOINTMENT - Appointment - Post of Asst. Teacher Physical
Education - Eligibility criteria - Graduation Degree in Physical Education or Diploma in
Physical Education - Clarification issued by Govt. that B.P.E. degree holders should be
treated at par with those who hold B.A./B.Sc., B. Com. degree plus a diploma in physical
education - Not contrary to Rules - It supplements service Rules. (Para 12)
2007 AIR SCW 6861 (Rel. on) 9
1995 AIR SCW 1109 : AIR 1995 SC 1088 : 1995 Lab IC 1575 (Foll.) 8
@page-SC1914
AIR 1973 SC 303 : 1973 Lab IC 191 (Rel. on, Pnt. B) 14

AIR 1967 SC 1910 (Rel. on, Pnt. B) 13, 14
Naresh Kaushik, Satish Dayanandan, Parag Goyal. Mrs. Lalita Kaushik, Mohd. Jamal
Nasir, Ms. Sunita Sharma, for Appellants; Ms. Rachana Srivastava, AAG, B. B. Sawhney,
Sr. Advocate, Ms. Indra Sawhney, Jatinder Kumar Bhatia, for Respondents.
Judgement
1. H. K. SEMA, J. :- Leave granted.
2. These appeals are directed against the Judgment and order dated 16.12.2005 passed by
the Division Bench of the High Court of Uttaranchal at Nainital in Special Appeal No. 18
of 2004.
3. Special Leave Petition (Civil) Nos. 1466 and 2743 of 2006 have been filed by the
selected candidates. The High Court by the impugned order set aside the entire selection
and appointments of Assistant Teachers (Physical Education) in Garhwal Mandal.
According to the High Court, the selection and appointments were made in violation of
the Rules. By an interim order dated 27.1.2006 this Court stayed the operation of the
order of the High Court and, therefore, they are still holding the posts, for which they
have been selected.
4. An advertisement was issued on 24.6.2002 for Garhwal Region for the selection and
appointment of the Physical Education Teachers (L.T.Grade). The requisite qualification
indicated in the advertisement is B.P.E. or Graduate with Diploma in Physical Education.
The unsuccessful candidates in the interview challenged the selected candidates on
various grounds. One of the grounds was that the advertisement and selection were not
based in accordance with the Rules called U.P. Subordinate Educational (Trained
Graduates Grade) Service Rules, 1983 (in short the Rules). We will examine the Rules a
little later. The unsuccessful writ petitions were dismissed by the Single Judge. On appeal
by the unsuccessful candidates, the order of the Single Judge was reversed and the
appeals were allowed. Hence, these appeals by special leave.
5. We have heard the parties.
6. Before we proceed further we may point out at this stage that the writ petitions were
rightly dismissed by the Single Judge and the Division Bench of the High Court fell in
error in entertaining the appeals.
7. It is not disputed that the writ petitioners-respondents herein participated in the process
of selection knowing fully well that the educational qualification was clearly indicated in
the advertisement itself as B.P.E. or graduate with diploma in physical education. Having
unsuccessfully participated in the process of selection without any demur they are
estopped from challenging the selection criterion inter alia that the advertisement and
selection with regard to requisite educational qualifications were contrary to the Rules.
8
. In Madan Lal vs. State of J and K, (1995) 3 SCC 486, this Court pointed out that when
the petitioners appeared at the oral interview conducted by the Members concerned of the
Commission who interviewed the petitioners as well as the contesting respondents
concerned, the petitioners took a chance to get themselves selected at the said oral
interview. Therefore, only because they did not find themselves to have emerged
successful as a result of their combined performance both at written test and oral
interview, they have filed writ petitions. ThisCourt further pointed out that if a candidate
takes a calculated chance and appears at the interview, then, only because the result of the
interview is not palatable to him, he cannot turn round and subsequently contend that the
process of interview was unfair or the Selection Committee was not properly constituted.
In the present case, as already pointed out, the writ petitioners-respondents herein
participated in the selection process without any demur; they are estopped from
complaining that the selection process was not in accordance with the Rules. If they think
that the advertisement and selection process were not in accordance with the Rules
theycould have challenged the advertisement and selection process without participating
in the selection process. This has not been done. 1995 AIR SCW 1109
. In a recent judgment in the case of Marripati Nagaraja vs. The Government of Andhra
Pradesh, (2007) 11 SCR 506 at p.516 SCR this Court has succinctly held that the
appellants had appeared at the examinationwithout any demur. They did not question the
validity of fixing the said date before the appropriate authority. They are, therefore,
estopped and precluded from questioning the selection process. 2007 AIR SCW 6861
10. We are of the view that the Division

@page-SC1915
Bench of the High Court could have dismissed the appeal on this score alone as has been
done by the learned Single Judge.
11. The next question that arises for consideration is as to whether the Government can,
by way of administrative instructions, fill up the gaps and supplement the rules and issue
instructions not inconsistent with the rules already framed, if rules are silent on any
particular point?
12. The 1983 Rules prescribe the requisite educational qualifications for the post of
Assistant Teacher-physical education as under :-
"Graduation degree in Physical Education or Diploma in the Physical Education from any
recognised Institution."
The aforesaid Rule has been clarified by the Government of India, Ministry of Education,
on 26.11.1965 to the effect that B.P.E degree holders should be treated at par with those
who hold B.A./B.Sc., B.Com degree plus a diploma in physical education and should not
be required to possess an additional B.A.,B.Sc/B.Com. degree for purposes of
employment as Directors of physical education or on other similar posts. The aforesaid
position has been further clarified by the Government in paragraph 12 of its counter
affidavit that qualification of B.P.E. includes the graduation as well as diploma of
physical education.
13. A Constitution Bench of this Court in the case of Sant Ram Sharma vs. State of
Rajasthan, AIR 1967 SC1910, has pointed out at p. 1914 SC that the Government cannot
amend or supersede statutory Rules by administrative instructions, but if the rules are
silent on any particular point Government can fill up the gaps and supplement the rules
and issue instructions not inconsistent with the rules already framed.
14
. The aforesaid ruling has been reiterated in paragraph 9 of the judgment by a three Judge
Bench of this Court in the case of Union of India v. K.P. Joseph, (1973) 1 SCC 194, as
under : AIR 1973 SC 303
"Generally speaking, an administrative Order confers no justiciable right, but this rule,
like all other general rules, is subject to exceptions. This Court has held in Sant Ram
Sharma v. State of Rajasthan and Another, AIR 1967 SC 1910, that although Government
cannot supersede statutory rules by administrative instructions, yet, if the rules framed
under Article 309 of the Constitution are silent on any particular point, the Government
can fill up gaps and supplement the rules and issue instructions not inconsistent with the
rules already framed and these instructions will govern the conditions of service."
15. For the reasons aforestated, Civil Appeals arising out of Special Leave Petition (Civil)
Nos. 1466 and 2743 of 2006 filed by the successful candidates are allowed. The
impugned judgment and order of the Division Bench of the High Court is set aside. No
costs.
CIVIL APPEAL ARISING OUT OF S.L.P. (C) No. 7989 of 2006
16. This appeal filed by the non-selected candidates is dismissed.
Appeal dismissed.
AIR 2008 SUPREME COURT 1915 "Chand Patel v. Bismillah Begum"
(From : Karnataka)*
Coram : 2 ALTAMAS KABIR AND J. M. PANCHAL, JJ.
Criminal Appeal No. 488 of 2008 (@ S.L.P. (Cri.) No.3989 of 2006), D/- 14 -3 -2008.
Chand Patel v. Bismillah Begum and Anr.
Criminal P.C. (2 of 1974), S.125 - MAINTENANCE - MUSLIM LAW - MARRIAGE -
Maintenance - Marriage by Muslim person with sister of existing wife - Would be
irregular and not void - Continues to subsist till terminated in accordance with law - Wife
and children of such marriage entitled to maintenance u/S.125.
Muslim Law - Marriage - Restrictions.
A marriage performed by a person professing the Muslim faith with his wife's sister,
while his earlier marriage with the other sister was still subsisting, would be irregular and
not void in law. Since a marriage, which is temporarily prohibited may be rendered
lawful once the prohibition is removed, such a marriage is irregular (fasid) and not void
(batil). Therefore, the bar of unlawful conjunction (jama bain-al-mahramain) renders a
marriage irregular and not void. Consequently, under the Hanafi law as far as Muslims in
India are concerned, an irregular marriage continues to subsist till terminated in
accordance with law and the wife and the children of such marriage would be entitled to
maintenance under the provisions of S. 125.
@page-SC1916
39 Indian Cases 1917 (603). Foll. (Paras 27, 28, 30)
2004 AIR SCW 6990 : AIR 2005 SC 422 (Ref.) 13
AIR 1988 SC 644 : 1988 Cri LJ 793 (Ref.) 19
1985 Cri LJ 1505 (AP) 9
AIR 1970 SC 446 : 1970 Cri LJ 522 (Ref.) 9
AIR 1938 Mad 141 24
AIR 1930 Lahore 907 24
AIR 1926 Oudh 231 24
AIR 1917 Bom 211 (Foll.) 23, 24, 27
(1895) ILR 23 Cal 130 22, 23, 24
RajaVenkatappa Naik, Raja Raghavendra Naik, S.P. Adgaonkser, Rameshwar Prasad
Goyal, for Appellant; Mrs. K. Sarada Devi, for Respondents.
* Cri. Petn. No. 3002 of 2004, D/- 20-6-2005 (Kant).
Judgement
1. ALTAMAS KABIR, J. :-Leave granted.
2. The application for condonation of delay in filing the Special Leave Petition is allowed
and the delay in filing the same is condoned.
3. This appeal raises an interesting question of law as to whether a marriage performed by
a person professing the Muslim faith with his wife's sister, while his earlier marriage with
the other sister was still subsisting, would be void in law or merely irregular or voidable
even though the subsequent marriage may have been consummated.
4. The facts which give rise to the aforesaid question, in brief, are set out hereunder.
5. The respondent No. 1 herein, Bismillah Begum, filed an application for her
maintenance and for the maintenance of her minor daughter, Taheman Bano, under
Section 125 of the Code of Criminal Procedure, against one Chand Patel, in the Court of
the Judicial Magistrate, First Class, Chincholi, being Criminal Misc. No. 6 of 2001. In her
petition she claimed that she was the legally wedded wife of the appellant herein and that
her marriage with the appellant had taken place about eight years prior to the filing of the
said petition. Her further case was that the marriage was consummated and two years
after the marriage a daughter was born from the wedlock and she has been made
petitioner No. 2 in the application for maintenance. The petitioner No.2 Taheman Bano
being a minor, is under the care and guardianship of her mother, the petitioner No. 1, in
the said application.
6. In her petition the respondent No. 1 herein categorically admitted that the appellant
herein was married to her elder sister, Mashaq Bee, and that the appellant, with the
consent of his first wife married the respondent No. 1 and a Nikahnama was also
executed but the same had been misplaced. It was also admitted that the appellant herein
lived with his first wife Mashaq Bee and the respondent No. 1 under one roof and the
appellant had even accepted the petitioner No. 2 as his daughter and had brought her up.
7. That with the passage of time the relationship between the appellant and the respondent
No. 1 began to deteriorate and he started neglecting the respondents who have no means
to support themselves. The respondent No. 1 prayed for maintenance for herself and for
her minor daughter @ Rs. 1,000/- per month for each of them from the date of filing of
the petition.
8. The case made out on behalf of the respondent No. 1 was denied on behalf of the
appellant herein. He categorically denied that he had married the respondent No. 1. The
defence put up by the appellant was not accepted by the learned Trial Court, which prima
facie came to a finding that the respondent No. 1 was, in fact, the wife of the appellant
and that the petitioner No. 2 is his daughter. The Trial Court also came to the finding that
the appellant had neglected the respondents and had failed to maintain them, which he
was in law required to do, and accordingly, directed the appellant to pay Rs. 1,000 per
month to the respondent No. 1 towards her life support maintenance and to the
respondent No. 2 till she reached adulthood.
9. The aforesaid decision was challenged by the appellant herein in the revision filed by
him, being Criminal Revision No. 76 of 2003, in the Court of the District and Sessions
Judge at Gulbarga. The respondent No. 1 herein, both on her own behalf and on behalf of
her minor daughter, also filed Criminal Revision No. 96 of 2003 before the same learned
Judge and both the revision petitions were taken up together for disposal and were
disposed of by a common order. After considering several decisions of different High
Courts and this Court the learned Fourth Additional District Judge, Gulbarga,
@page-SC1917
dismissed both the revision petitions and confirmed the order passed by the Judicial
Magistrate, First Class, Chincholi. in Criminal Misc. No. 6 of 2001. While arriving at the
aforesaid decision, the learned revisional Court held that the Personal Law of the parties
could not come in the way of a Muslim to pray for and obtain maintenance under Section
125 of the Code of Criminal Procedure since an obligation is cast upon the appellant
herein to maintain his wife and children till the marriage between them was declared null
and void by a competent court. While referring to various decisions of different High
Courts, the revisional Court relied to a large extent on a decision of this Court in the case
of Nanak Chand v. Chandra Kishore Aggarwal and others (AIR 1970 SC 446) in which it
was, inter alia, held that Section 488 of the old Code which corresponds to Section 125 of
the new Code is applicable to all persons belonging to all religions and has no
relationship to the Personal Law of the parties. The learned Judge also referred to the
decision of this Court in the case of Re-Hussain Saheb (1985 Criminal Law Journal 1505
(A.P.) (W.P. No. 858 of 1985) wherein it was held that the provisions of maintenance of a
divorced wife under Section 125 of the Code of Criminal Procedure could not be struck
down on the ground of inconsistency between the said provisions and the Personal Laws
of the parties. On the basis of the above, the learned Additional Sessions Judge held as
follows :
"Thus in the abovesaid dictum the Personal Law of the Muslim no way coming in the
way of Muslim to maintenance of the respondent. Moreover the Magistrate cannot go
into validity of the marriage while dealing u/Section 125 of Cr.P.C. The petitioner must
maintain the wife and children till the marriage between them declares null and void by
the competent court. Therefore, by relying upon the rulings of the Hon'ble Supreme Court
the marriage between the petitioner and respondent No. 1 is presumed to be legal and
validity of the marriage cannot be decided under proceedings u/Sec. 125 of Cr.P.C. or
Section 391 of Cr.P.C. Therefore, I do not find any illegality or irregularity committed by
the Magistrate while granting maintenance to the respondents. Hence I answer Point Nos.
1 and 2 in the negative."
10. Subsequently, the appellant herein filed an application under Section 482 of the
Criminal Procedure Code for setting aside the order dated 28.6.2003 passed by the
Judicial Magistrate 1st Class in Criminal Misc. No. 6 of 2001. From the order disposing
of the said petition it is apparent that the High Court had occasion to look into the orders
passed both by the Trial Court as well as the revisional Court and after considering the
same was of the view that there was no merit in the petition and dismissed the appellant's
application under Section 482 of the said Code.
11. Much the same arguments as had been advanced before the Courts below have been
advanced on behalf of the respective parties in these proceedings.
12. On behalf of the appellant it has been urged that the Muslim Law specifically
prohibits 'unlawful conjunction' which has been interpreted to mean that a man could not
marry his wife's sister in his wife's lifetime. It was urged that in the instant case the
appellant had from the very initial stage denied having married the respondent No. 1
herein, who is his wife's younger sister and that he did not have any sexual relations with
her, thereby disputing the paternity of the respondent No. 2 through him. It was also
submitted that since such unlawful conjunction is prohibited, even if the marriage had
been performed the same was void in law and did not confer any rights either on the
respondent No. 1 or on respondent No. 2 since from the very inception the marriage was
void and invalid.
13
. In support of his aforesaid contention Mr. Raja Venkatappa Naik, learned counsel for the
appellant, firstly referred to the decision of this Court in Rameshchandra Rampratapji
Daga v. Rameshwari Rameshchandra Daga, (2005) 2 SCC 33, in which this Court had
occasion to consider, inter alia, the provisions of Sections 11 and 12 as also Section 5(i)
of the Hindu Marriage Act, 1955. The facts of the said case are to some extent similar to
the facts of this case, although, the same involved the provisions of the Hindu Marriage
Act, 1955. In the said case the wife was first married to someone but according to her the
customary rituals of the marriage had not been completed, inasmuch as, during the
marriage ceremony the family members quarrelled over dowry. She, thereafter, filed a
petition for divorce but did not prosecute the same and no decree of divorce was 2004
AIR SCW 6990
@page-SC1918
passed in the said proceedings. However, in accordance with the prevalent customs in the
Maheshwari community, a chhor chithhi or a document of dissolution of marriage was
executed between the wife and the said person and it was also registered. The said
documents were shown and also given to the person with whom the second marriage was
performed and a daughter was also born from the second marriage. According to the wife,
her second husband began to ill-treat her, and, ultimately, she had to file proceedings in
the Family Court for grant of a decree of judicial separation and maintenance of Rupees
Three thousand per month both for herself and for her minor daughter. The second
husband filed a counter-petition seeking a declaration that his marriage with his present
wife was a nullity on the ground that on the date of the second marriage her earlier
marriage with her previous husband had not been dissolved by any Court in accordance
with the provisions of the Hindu Marriage Act, 1955. The Family Court allowed the
petition of the wife and granted a decree of judicial separation as also the maintenance
claimed by her and dismissed the counter-petition filed by the husband. The High Court,
however, reversed the finding of the Family Court and held that since the first marriage
of the present wife with the previous husband had not been dissolved by the Court, the
second marriage was in contravention of Section 5(i) of the aforesaid Act and was,
therefore, a nullity under Section 11 of the Act. The High Court granted a decree of
separation holding that the marriage was a nullity, though it maintained the decree
granted in respect of maintenance to the respondent No. 1 and her daughter.
14. Dismissing the two appeals preferred both by husband and the wife, the Supreme
Court held that in the facts of the case the Courts below were fully justified in granting
maintenance both to the wife and the daughter since the evidence of the wife had been
rightly believed by the Courts below. The High Court accepted the validity of the
document of dissolution of marriage executed between the parties and also took into
consideration the fact that they had lived as husband and wife for about 9 years. On such
consideration, both the appeals came to be dismissed.
15
. Mr. Naik also relied on another decision of this Court in the case of Savitaben Somabhai
Bhatiya vs. State of Gujarat and others, (2005) 3 SCC 636, in which it was observed that
the legislature had considered it necessary to include within the scope of Section 125 of
the Code an illegitimate child, but it had not done so in respect of a woman not lawfully
married. It was observed that however desirable it may be, to take note of the plight of
the unfortunate woman, the legislative intent being clearly reflected in Section 125 of the
Code, there was no scope for enlarging its scope by introducing any artificial definition to
include a woman not lawfully married in the expression "wife". 2005 AIR SCW 1601
16. On the basis of the aforesaid two decisions, learned counsel for the appellant
submitted that having regard to the letter and spirit of Section 125 of the Code, the Courts
below had erred in granting maintenance to the respondent No. 1 when her marriage itself
was void from its very inception.
17. Mrs. K. Sarada Devi, learned counsel for the respondents, however, questioned the
decision of the High Court on the ground that in a proceeding under Section 125 of the
Code, the Court was not required to adjudicate upon the validity of a marriage and on a
prima facie view it could pass an order for maintenance of both the wife and her
daughter. She however, also contended that the marriage between the parties had been
solemnised in spite of the existing facts which were known to both the parties. She urged
that it was the appellant who, despite having married her elder sister, not only chose to
marry the respondent No. 1 as well, but was now taking recourse to technicality to avoid
payment of maintenance which he was required to pay under the provisions of Section
125 of the Code.
18. She urged that till such time as the marriage between the appellant and the respondent
No. 1 was not declared to be void by a competent Court of law, it continued to subsist and
all rights flowing from a valid marriage continued to be available to the respondent No. 1
and her minor daughter till such time a competent Court of law directed such marriage to
be invalid and void.
19. The answer to the question, which we are called upon to answer in this case, will
depend on the legal status of the union effected by the appellant with the respondent No.
1. Though the factum of marriage between them was denied by the appellant,
@page-SC1919
the courts below negated the appellant's case and proceeded on the basis that a marriage
had been performed between them. If the marriage which was said to have been
performed between the appellant and the respondent No. 1 is held to be void then, in such
event, the respondent No. 1 will not be entitled to maintenance from the appellant under
Section 125, Cr.P.C. If, on the other hand, the marriage is held to be irregular, then in
such event, the marriage will subsist for all purposes, unless declared to be void by a
competent court. Till such a declaration is made, along with the respondent No. 2, the
respondent No.1 will also be entitled to maintenance under Section 125, Cr.P.C.
Although, the law applicable in this case is under the Personal Law of Muslims, it has
many similarities with the provisions of Sections 11 and 12 of the Hindu Marriage Act,
1955. Section 11 of the 1955 Act, defines "Void Marriages" and provides that any
marriage solemnized after the commencement of the Act shall be null and void and on a
petition presented by either party thereto, be so declared by a decree of nullity if it
contravened any one of the conditions specified in clauses (i), (iv) and (v) of Section 5 of
the Act. In Yamunabai Anantrao Adhav vs. Anantrao Shivram Adhav (AIR 1988 SC 644),
this Court had held that marriages covered by Section 11 are void ipso jure, that is void
from the very inception and have to be ignored as not existing in law at all. A marriage in
contravention of Section 11 must be treated as null and void from its very inception.
20. Section 12 of the 1955 Act defines "voidable marriages" and provides that any
marriage solemnized before or after the commencement of the Act shall be voidable and
may be annulled by a decree of nullity on any of the grounds enumerated in the Section.
In the case of a marriage covered by Section 12 of the 1955 Act, the marriage is not void
ipso jure from its inception, but a decree would have to be obtained from the competent
court declaring the marriage to be void and so long as such declaration is not made, the
marriage will continue to subsist.
21. Under the Muslim Law also a distinction has been drawn between void marriages and
irregular marriages. The same has been dealt with in Mulla's "Principles of Mahomedan
Law" in paragraphs 260 to 264. Paragraphs 260, 261 and 262 deal with complete
prohibition of marriage between a man and the persons included therein and any marriage
in violation of such provision would be void from its very inception (batil). Paragraph
263 which is relevant for our purpose reads as follows :
"263. Unlawful conjunction - A man may not have at the same time two wives who are so
related to each other by consanguinity, affinity and fosterage, that if either of them had
been a male, they could not have lawfully inter-married, as for instance, two sisters, or
aunt and niece. The bar of unlawful conjunction renders a marriage irregular, not void."
22. The above provision fell for the consideration of different High Courts and the
earliest decision is that of the Calcutta High Court in the case of Aizunnissa vs.
Karimunissa (ILR 1895-23 Calcutta page 130) which was decided on 23rd July, 1895.
After discussing the various authorities on the subject the Calcutta High Court took the
view that a marriage with a wife's sister while the earlier marriage was still subsisting
was void and the children of such marriage were illegitimate and were not entitled to
inherit. It was held that the sister of a person's wife was prohibited from the very
inception and a marriage contracted with her would from the very inception be void
(batil).
23
. The said decision subsequently came to be considered by the Bombay High Court in the
case of Tajbi Abalal Desai vs. Mowla Alikhan Desai (39 Indian Cases 1917 page 603)
and was decided on 6th February, 1917. The Bombay High Court differed with the
decision rendered in Aizunnissa's case (supra) and placing reliance on the views
expressed in Fatawa-i-Alamgiri held that amarriage with the sister of an existing wife
was not void (batil) but irregular (fasid). The reasoning adopted was that marriage with a
permanently prohibited woman had always been considered by the exponents of Muslim
Law to be void and has no legal consequence, but marriage with a temporarily prohibited
woman if consummated may have legal consequences. The logic behind the aforesaid
reasoning was that a marriage with the sister of an existing wife could always become
lawful by the death of the first wife or by the husband divorcing his earlier wife and
thereby making the marriage with the second sister lawful to himself. The Bombay High
Court after considering various authorities, AIR 1917 Bom 211
@page-SC1920
and in particular Fatawa-i-Alamgiri, ultimately observed as follows :-
"Taking the whole current of authority and the general trend of informed thought on this
subject, it points clearly to some such distinctions having always been recognized by the
Muhammadan Law. Where that is so and a particular case on the borderland of such
distinctions, to which it may be doubtful whether they can be applied in the ordinary way,
arises, surely the Courts would be well advised to accept the authoritative statement of
the law as it was then understood by the authors of the Fatawa-i-Alamgiri. It is
impossible to say that that statement conflicts with the textual authority of the Kuran.
Speaking generally, it appears to us to harmonize with the course the law took during the
intervening period, and to be in consonance with the soundest practical principles. It has
the support of such a great modern text-book writer as Baillie. The eighth chapter of his
first book appears to us to reach conclusions by unanswerable reasoning, and while those
conclusions may be his own, they are the conclusions of a writer of profound knowledge
intimately versed at first hand with all the best writings of Muhammadan lawyers. The
modern Muhammadan tex-book writers, Ameer Ali, Tyabji and Abdur Rahim, are in
substantial agreement. All authority appears to us to point one way. Against this is
nothing but the judgment of the Calcutta High Court in Aizunnissa's case and after having
given it and the materials upon which it avowedly rests our most careful and respectful
attention, we find ourselves wholly unconvinced by its reasoning and unable to agree
with the law it lays down."
24
. The aforesaid question also fell for the consideration of the Oudh Chief Court in the
case of Mussammat Kaniza vs. Hasan Ahmad Khan (92 Indian Cases 1926 page 82)
decided on 24th November, 1925 and by the Lahore High Court in Taliamand vs.
Muhammad Din (129 Indian Cases 1931 page 12) decided on 16th July, 1930, and also
by the Madras High Court in Rahiman Bibi Saheba vs. Mahboob Bibi Saheba (ILR 1938
page 278) which was decided on 1st September, 1937. All the said courts favoured the
view taken by the Bombay High Court in Tajbi's case (supra) and were of the view that
the decision of the Calcutta High Court in Alzunnissa Khatun's case (supra) was
incorrect. AIR 1926 Oudh 231
AIR 1930 Lahore 907
AIR 1938 Mad 141
AIR 1917 Bom 211
25. Paragraph 264 which deals with the distinction between void and irregular marriages
reads as follows :-
"264. Distinction between void and irregular marriages -
(1) A marriage which is not valid may be either void or irregular.
(2) A void marriage is one which is unlawful in itself the prohibition against the marriage
being perpetual and absolute. Thus a marriage with a woman prohibited by reason of
consanguinity, affinity, or fosterage is void, the prohibition against marriage with such a
woman being perpetual and absolute.
(3) An irregular marriage is one which is not unlawful in itself, but unlawful "for
something else," as where the prohibition is temporary or relative, or when the
irregularity arises from an accidental circumstance, such as the absence of witnesses.
Thus the following marriages are irregular, namely -
(a) a marriage contracted without witness;
(b) a marriage with a fifth wife by a person having four wives;
(c) a marriage with a woman undergoing iddat;
(d) a marriage prohibited by reason of difference of religion;
(e) a marriage with a woman so related to the wife that if one of them had been a male,
they could not have lawfully inter-married.
The reason why the aforesaid marriages are irregular, and not void, is that in Cl.(a) the
irregularity arises from a accidental circumstance; in Cl. (b) the objection may be
removed by the man divorcing one of his four wives; in Cl.(c) the impediment ceases on
the expiration of the period of iddat; in Cl.(d) the objection may be removed by the wife
becoming a convert to the Mussalman, Christian or Jewish religion, or the husband
adopting the Moslem faith; and in Cl. (e) the objection may be removed by the man
divorcing the wife who constitutes the obstacle; thus if a man who has already married
one sister marries another, he may divorce the first, and make the second lawful to
himself."
26. Paragraph 266 deals with the effects of a void (batil) marriage and provides that
@page-SC1921
a void marriage is no marriage at all. It does not create any civil rights or obligations
between the parties. The offspring of a void marriage are illegitimate. Paragraph 267
which deals with the effects of irregular (fasid) marriages reads as follows :-
"267. Effect of an irregular (fasid) marriage-

(1) An irregular marriage may be terminated by either party, either before or after
consummation, by words showing an intention to separate, as where either party says to
the other "I have relinquished you". An irregular marriage has no legal effect before
consummation.
(2) If consummation has taken place - (i) the wife is entitled to dower, proper or
specified, whichever is less;
(ii) she is bound to observe the iddat, but the duration of the iddat both on divorce and
death is three courses;
(iii) the issue of the marriage is legitimate. But an irregular marriage, though
consummated, does not create mutual rights of inheritance between husband and wife
(Baillie, 694, 701)."
27
. On consideration of the decisions of the various High Courts referred to hereinabove

and the provisions relating to void marriages and marriages which are merely irregular,
we are also of the view that the decision rendered by the Bombay High Court in the case
of Tajbi's case (supra) is correct. Since a marriage, which is temporarily prohibited may
be rendered lawful once the prohibition is removed, such a marriage is in our view
irregular (fasid) and not void (batil). AIR 1917 Bom 211
28. The answer to the question raised at the very outset, therefore, is that the bar of
unlawful conjunction (jama bain-al-mahramain) renders a marriage irregular and not
void. Consequently, under the Hanafi Law as far as Muslims in India are concerned, an
irregular marriage continues to subsist till terminated in accordance with law and the wife
and the children of such marriage would be entitled to maintenance under the provisions
of Section 125 of the Code of Criminal Procedure.
29. The decisions cited during the hearing of this case do not really come to the aid of the
parties, except to the extent that a marriage which is merely irregular or voidable
continues to subsist till it is set aside or declared to be void in accordance with law.
30. In view of what has been stated hereinabove, we hold that the unlawful conjunction
and/or marriage between the appellant and respondent No. 1 continues to subsist not
having been declared void by any competent forum and that accordingly, the respondent
No. 1 and the respondent No. 2 will both be entitled to maintenance under Section 125 of
the Code of Criminal Procedure. There is, therefore, no reason to interfere with the order
passed on 20.6.2005 by the Karnataka High Court in Criminal Petition No. 3002 of 2004
or that of the Judicial Magistrate, First Class, Chincholi, on 28.6.2003 in Criminal Misc.
No. 6 of 2001. The appeal is accordingly dismissed and the interim stay granted on
14.8.2006 is vacated.
31. The appellant shall pay to the respondents all the arrears of maintenance, within a
period of six months from the date of this Judgment and will also go on paying the
current maintenance with effect from the month of March, 2008. In addition, the
appellant will also pay to the respondent No. 1 a sum of Rs. 10,000/- towards the cost of
litigation.
Appeal dismissed.
AIR 2008 SUPREME COURT 1921 "Gujarat Urja Vikash Nigam Ltd. v. Essar Power
Ltd."
(From : Gujarat)*
Civil Appeal No. 1940 with 1941 of 2008 (arising out of SLP (C) No. 2700 with 675 of
2007), D/- 13 -3 -2008.
Gujarat Urja Vikash Nigam Ltd. v. Essar Power Ltd.
(A) Electricity Act (36 of 2003), S.86(1)(f), S.174, S.175 - Arbitration and Conciliation
Act (26 of 1996), S.11 - ELECTRICITY - ARBITRATION AND CONCILIATION -
WORDS AND PHRASES - STATE COMMISSION - Reference to Arbitrator - Word
'and' in S.86(1)(f) - Means "or" - S.86(1)(f) to special provision - Would override general
provision in S.11 of Arbitration and Conciliation Act, 1996 - Dispute between licensees
and generating companies - To be decided by State Commission or Arbitrator appointed
by it - S.11 of 1996 Act would not be applicable.
Petition under Arbitration Act No. 8 of
@page-SC1922
2006, D/-15-06-2006 (Guj.), Reversed.
In S. 86(1)(f) of Electricity Act, 2003 the word 'and' between the words 'generating
companies' and the words 'refer any dispute' means 'or', otherwise it will lead to an
anomalous situation because obviously the State Commission cannot both decide a
dispute itself and also refer it to some Arbitrator. Hence the word 'and' in Section 86(1)(f)
means 'or'. (Paras 25, 26, 27)
The principle laid down in S. 174 of the Electricity Act, 2003 is the principal or primary
whereas the principle laid down in S. 175 is the accessory or subordinate to the principal.
Hence Section 174 will prevail over Section 175 in matters where there is any conflict
(but no further). Section 174 and S. 175 can be read harmoniously by utilizing the
Samanjasya, Badha and Gunapradhana principles of Mimansa. This can be done by
holding that when there is any express or implied conflict between the provisions of the
Electricity Act, 2003 and any other Act then the provisions of the Electricity Act, 2003
will prevail, but when there is no conflict, express or implied, both the Acts are to be read
together. In the instant case, there is an implied conflict between S. 86 (1)(f) of the
Electricity Act, 2003 and S. 11 of the Arbitration and Conciliation Act, 1996 since under
S. 86(1)(f) the dispute between licensees and generating companies is to be decided by
the State Commission or the Arbitrator nominated by it, whereas under S. 11 of the
Arbitration and Conciliation Act, 1996, the Court can refer such disputes to an Arbitrator
appointed by it. Hence, on harmonious construction of the provisions of the Electricity
Act, 2003 and the Arbitration and Conciliation Act, 1996 whenever there is a dispute
between a licensee and the generating companies only the State Commission or Central
Commission (as the case may be) or Arbitrator (or Arbitrators) nominated by it can
resolve such a dispute, whereas all other disputes (unless there is some other provision in
the Electricity Act, 2003) would be decided in accordance with S. 11 of the Arbitration
and Conciliation Act, 1996. This is also evident from S. 158 of the Electricity Act, 2003.
However, except for S. 11 all other provisions of the Arbitration and Conciliation Act,
1996 will apply to arbitrations under S. 86(1)(f) of the Electricity Act, 2003 ('unless there
is a conflicting provision in the Electricity Act, 2003, in which case such provision will
prevail).
Petition under Arbitration Act No. 8 of 2006, D/-15-6-2006 (Guj.), Reversed. (Paras
28, 32 , 33, 34 , 35, 50, 56, 57, 58, 61)
Since the Electricity Act, 2003 has come into force w. e. f. 10-6-2003, after this date all
adjudication of disputes between licensees and generating companies can only be done by
the State Commission or the Arbitrator(s) appointed by it. After 10-6-2003 there can be
no adjudication of dispute between licensees and generating companies by anyone other
than the State Commission or the Arbitrator(s) nominated by it. Further, it is clarified that
all disputes, and not merely those pertaining to matters referred to in clauses (a) to (e) and
(g) to (k) in S. 86(1), between the licensee and generating companies can only be
resolved by the Commission or an Arbitrator appointed by it. This is because there is no
restriction in S. 86(1)(f) about the nature of the dispute. Further, that it is only with regard
to the authority which can adjudicate or arbitrate disputes that the Electricity Act, 2003
will prevail over S. 11 of the Arbitration and Conciliation Act, 1996. However, as regards,
the procedure to be followed by the State Commission (or the Arbitrator nominated by it)
and other matters related to arbitration (other than appointment of the Arbitrator) the
Arbitration and Conciliation Act, 1996 will apply (except if there is a conflicting
provision in the Act of 2003). In other words, S. 86(1)(f) is only restricted to the authority
which is to adjudicate or arbitrate between licensees and generating companies.
Procedural and other matters relating to such proceedings will of course be governed by
Arbitration and Conciliation Act, 1996, unless there is a conflicting provision in the Act
of 2003. (Paras 59, 60)
(B) Electricity Act (36 of 2003), S.86(1)(f) - ELECTRICITY - CONSTITUTIONALITY
OF AN ACT - EQUALITY - Validity - S.86(1)(f) not violative of Art.14 of Constitution.
Constitution of India, Art.14.
It is in the discretion of the State Commission whether the dispute should be decided
itself or it should be referred to an Arbitrator. There are various reasons why the State
Commission may not decide the dispute itself and may refer it for arbitration by an
Arbitrator appointed by it. For example, the State Commission may be overburdened and
may not have the time to decide certain disputes itself, and hence such
@page-SC1923
cases can be referred to an Arbitrator. Alternatively, the dispute may involve some highly
technical point which even the State Commission may not have the expertise to decide,
and such dispute in such a situation can be referred to an expert Arbitrator. There may be
various other considerations for which the State Commission may refer the dispute to an
Arbitrator instead of deciding it itself. Therefore, S. 86(1)(f) cannot be said to be violative
of Art. 14 of the Constitution of India on ground that it does not specify when the State
Commission shall itself decide a dispute and when it will refer the matter to arbitration by
some Arbitrator. (Para 30)
(C) INTERPRETATION OF STATUTES - Interpretation of Statutes - Literal rule.
No doubt ordinarily the literal rule of interpretation should be followed, and hence the
Court should neither add nor delete words in a statute. However, in exceptional cases this
can be done where not doing so would deprive certain existing words in a statute of all
meaning, or some part of the statute may become absurd. (Para 57)
2008 AIR SCW 1826 (Ref.) 30
1999 AIR SCW 3563 : AIR 1999 SC 3558 (Ref.) 34
1991 AIR SCW 431 (Ref.) 53
(1892) ILR 14 All 67 (FB) 37
K.K. Venugopal, T.R. Andhyarujina, Suresh Shelat, Sr. Advocates, Mrs. Hemantika Wahi,
M.R. Ramachandran and Liz Mathew, with them, for Appellant; F.S. Nariman, C.A.
Sundram, Mahir Thakur, Sr. Advocates, Bijal Chatrapati, Arvind Kumar, E.C. Agrawala,
Mahesh Agarwal, Rishi Agrawala, Meru Gupta, Gaurav Goel, Ms. Rohini Musa,
Abhishek Gupta, Ms. Surabhi Chopra and Zafar, with them, for Respondents; Jayant
Bhushan, Sr. Advocate, Uttam Dutt (for M/s. Dua Associates), with him, for the
Intervenor.
* Petition under Arbitration Act No. 8 of 2006, D/- 15-6-2006 (Guj).
Judgement
1. MARKANDEY KATJU, J. :-Leave granted.
2. This appeal by special leave has been filed against the judgment of the learned Single
Judge of the Gujarat High Court dated 15.6.2006 which was passed on a petition under
Section 11(5) and (6) of The Arbitration and Conciliation Act, 1996 (hereinafter in short
"the 1996 Act"). By that judgment the High Court has appointed Hon'ble Mr. Justice
A.M. Ahmadi, retired Chief Justice of India, as the sole arbitrator for deciding certain
disputes between the parties.
4. The appellant-company is engaged in the business of generation of electrical energy.
The appellant-company has its generation station at Hazira, Surat. On 30th May, 1996 the
appellant-company entered into a power purchase agreement (hereinafter in short "the
aforesaid agreement") with the Gujarat Electricity Board. Under the aforesaid agreement
the parties agreed, inter alia, that out of the total generating capacity of 515MW
electricity the appellant-company would allocate 300MW electricity to the Board and
215MW electricity to the Essar Group of Companies. Under Clause 11 of the agreement
the parties agreed that in the event any dispute arose the same may be resolved by the
parties by mutual agreement as envisaged by Clause 11(1) of the aforesaid agreement. In
the event of failure to resolve the dispute by amicable settlement, the parties agreed that
such dispute be submitted to arbitration vide Clause 11(2).
5. In the meantime, under the Gujarat Electricity Industry (Reorganization and
Regulation) Act, 2003 published in the Gujarat Government Gazette on 12th May, 2003
the assets and liabilities of the Board were transferred to the appellant-Nigam.
6. It appears that certain disputes had arisen between the parties mainly in connection
with the allocation of power to the Essar Group of Companies. It is not in dispute that the
respondent-company did not utilize its total generating capacity to generate 515MW
electricity. It also did not supply 300MW electricity to the Board as agreed. According to
the Board, in the event of the respondent-company generating less than its total
generating capacity of 515MW electricity under the aforesaid agreement, the respondent-
company was required to maintain a ratio of 300MW : 215MW in allocation of electrical
energy to the Board and the Essar Group of Companies respectively. The respondent-
company, allegedly, did not maintain the said ratio, and supplied more electricity to the
Essar Group than in accordance with the ratio of 300MW : 215MW.
@page-SC1924
7. The respondent-company and the Board tried to settle the above dispute amicably. The
State Government also intervened in the matter but to no avail. After protracted
correspondence, on 14th November, 2005 the respondent-company called upon the
appellant-Nigam to refer the disputes arising from the aforesaid agreement to the
arbitrator Mr. Justice A.M. Ahmadi, retired Chief Justice of India. On the other hand, the
Nigam approached the Gujarat Electricity Regulatory Commission, Ahmedabad
(hereinafter in short "the Commission") by Application No. 873 of 2005 made under
Section 86(1)(f) of the Electricity Act, 2003 (hereinafter in short "the Act of 2003").
8. Since the Nigam did not send its approval for appointment of Mr. Justice A.M. Ahmadi
as arbitrator, the respondent-company approached the Gujarat High Court by filing an
application under Section 11(5) and (6) of the 1996 Act, and by the impugned judgment
dated 15.6.2006 the learned Single Judge, Gujarat High Court, has appointed Mr. Justice
A.M. Ahmadi, retired Chief Justice of India, as the sole arbitrator for resolving the
disputes. Aggrieved, this appeal by special leave has been filed by the Nigam before us.
9. Mr. K.K. Venugopal, learned senior counsel for the appellant, has relied on Section 174
of the Act of 2003 which states :
"174. Act to have overriding effect - Save as otherwise provided in section 173, the
provisions of this Act shall have effect notwithstanding anything inconsistent therewith
contained in any other law for the time being in force or in any instrument having effect
by virtue of any law other than this Act."
10. He has also invited our attention to Section 173 of the Act of 2003 which states :
"173. Inconsistency in laws - Nothing contained in this Act or any rule or regulation
made thereunder or any instrument having effect by virtue of this Act, rule or regulation
shall have effect in so far as it is inconsistent with any other provisions of the Consumer
Protection Act, 1986 (68 of 1986) or the Atomic Energy Act, 1962 (33 of 1962) or the
Railways Act, 1989 (24 of 1989)."
11. Mr. K.K. Venugopal submitted that a joint reading of these provisions indicates that
ordinarily the Act of 2003 will prevail over all other laws or instruments, but the said Act
will have to give way only to the Consumer Protection Act, the Atomic Energy Act, or the
Railways Act. In other words, except for the aforementioned three Acts, the Act of 2003
will prevail over all other laws and instruments.
12. Mr. K.K. Venugopal then invited our attention to Section 86(1) of the Act of 2003
which states :
"86. Functions of State Commission - (1) The State Commission shall discharge the
following function, namely
(a) determine the tariff for generation, supply, transmission and wheeling of electricity,
wholesale, bulk or retail, as the case may be, within the State :
Provided that where open access has been permitted to a category of consumers under
section 42, the State Commission shall determine only the wheeling charges and
surcharge thereon, if any, for the said category of consumers;
(b) regulate electricity purchase and procurement process of distribution licensees
including the price at which electricity shall be procured from the generating companies
or licensees or from other sources through agreements for purchase of power for
distribution and supply within the State;
(c) facilitate intra-State transmission and wheeling of electricity;
(d) issue licences to persons seeking to act as transmission licensees, distribution
licensees and electricity traders with respect to their operations within the State;
(e) promote cogeneration and generation of electricity from renewable sources of energy
by providing suitable measures for connectivity with the grid and sale of electricity to any
person, and also specify, for purchase of electricity from such sources, a percentage of the
total consumption of electricity in the area of a distribution licensee;
(f) adjudicate upon the disputes between the licensees and generating companies and to
refer any dispute for arbitration;
(g) levy fee for the purposes of this Act;
(h) specify State Grid Code consistent with the Grid Code specified under clause (h) of
sub-section (1) of section 79;
(i) specify or enforce standards with respect to quality, continuity and reliability of
service by licensees;
(j) fix the trading margin in the intra-State trading of electricity, if considered, necessary;
@page-SC1925
(k) discharge such other functions as may be assigned to it under this Act."
13. Learned counsel for the appellant submitted that Section 86(1)(f) of the Act of 2003
clearly indicates that the disputes between the licensees and generating companies can
only be adjudicated upon by the State Commission, either itself or by an arbitrator to
whom the Commission refers the dispute. Hence he submitted that the High Court cannot
refer disputes between licensees and generating companies to an arbitrator since such
power of adjudication or reference to an arbitrator has been specifically given to the State
Commission.
14. Shri K. K. Venugopal also relied on Section 158 of the Act of 2003 which states :
" 158. Arbitration - Where any matter is, by or under this Act, directed to be determined
by arbitration, the matter shall, unless it is otherwise expressly provided in the licence of
a licensee, be determined by such person or persons as the Appropriate Commission may
nominate in that behalf on the application of either party; but in all other respects the
arbitration shall be subject to the provisions of the Arbitration and Conciliation Act, 1996
(26 of 1996)."
15. Shri K.K. Venugopal also relied on Section 2(3) of the 1996 Act which states :
"2(3) This part shall not affect any other law for the time being in force by virtue of
which certain disputes may not be submitted to arbitration."
16. Shri Venugopal submitted that Section 11 of the 1996 Act has no application because
the Act of 2003 has provided for arbitration of disputes between licensees and generating
companies by the Commission or its nominated arbitrator. Since the Electricity Act is a
special law dealing with arbitrations of disputes between licensees and the generating
companies, he submitted that the general provision in Section 11 of the Arbitration and
Conciliation Act, 1996 will not apply for appointing an arbitrator for such disputes in
view of the maxim Generalia specialibus non derogant (vide G.P. Singh's 'Principles of
Statutory Interpretation', 9th Edition, 2004 page 133).
17. Shri K.K. Venugopal submitted that in view of Section 86(1)(f) of the Act of 2003 it
is only the State Commission or its nominee which can adjudicate upon disputes between
licensees and generating companies. Hence he submitted that the impugned judgment of
the High Court referring the dispute to an arbitrator was illegal, since the High Court has
no such power.
18. On the other hand Shri F. S. Nariman, learned senior counsel for the respondent, has
invited our attention to the agreement between the parties dated 30.5.1996. The relevant
part of the agreement is Article 11 which states :
"ARTICLE 11
ARBITRATION
11.1 RESOLUTION OF DISPUTES :
Except as otherwise provided in this
Agreement, any disagreement, dispute, controversy or claim (the "Dispute") between the
Board and the Company in connection with or arising out of this Agreement, the Parties
shall attempt to settle such Dispute in the first instance within thirty days by discussion
between the Company and the Board in the following manner :
(a) Each Party shall designate in writing to the other Party a representative who shall be
authorized to resolve any dispute arising under this Agreement in an equitable manner.
(b) If the designated representatives are unable to resolve the dispute under this
Agreement within 15 days, such dispute shall be referred by such representatives to a
senior officer designated by the Company and a senior officer designated by the Board
respectively, who shall attempt to resolve the Dispute within a further period of 15 days.
(c) The Parties hereto agree to use their best efforts to attempt to resolve all Disputes
arising hereunder promptly equitably and in good faith and further agree to, provide each
other with reasonable access during normal business hours to any records, information
and data pertaining to any such Dispute.
11.2 ARBITRATION
In the event that any Dispute is not resolved between the Parties pursuant to Article 11.1
then such Dispute shall be settled exclusively and finally by Arbitration. It is specifically
understood and agreed that any Dispute that cannot be resolved between the Parties,
including any matter relating to the interpretation of this Agreement, shall be submitted to
Arbitration irrespective of the magnitude thereof and the amount in dispute or whether
such Dispute would otherwise
@page-SC1926
be considered justifiable or ripe for resolution by any Court. This Agreement and the
rights and obligations of the Parties hereunder shall remain in full force and effect
pending the award in such Arbitration proceedings. The award shall determine whether
and when Termination of this Agreement, if relevant, shall become effective.
The Arbitration shall be in accordance with the Indian Arbitration and Conciliation
Ordinance, 1996 or such modifications or re-enactment thereof.
11.3 NUMBER OF ARBITRATORS
The arbitral tribunal shall consist either (a) of sole Arbitrator mutually agreed upon, or (b)
of three (3) (Arbitrators One each to be chosen by each Party and third person to be
selected by two Arbitrators so chosen before commencement of arbitration proceedings to
act as an Umpire/third Arbitrator.
11.4 PLACE OF ARBITRATION
The arbitration shall be conducted at Baroda.
11.5 FINALITY AND ENFORCEMENT OF AWARD
The arbitral tribunal shall give reasoned decision or award which shall be final and
binding upon the Parties. The Parties hereto agree that the arbitral award may be enforced
against the Parties to the arbitration proceeding or their assets wherever they may be
found and that a judgment upon the arbitral award may be entered in any Court which
shall have jurisdiction over the matter."
19. Shri F. S. Nariman invited our attention to Section 175 of the Act of 2003 which
states :
" 175. Provisions of this Act to be in addition to and not in derogation of other laws - The
provisions of this Act are in addition to and not in derogation of any other law for the
time being in force."
20. In view of the above provision, Shri Nariman submitted that the Act of 2003 does not
prohibit the application of the provisions of the Act of 1996 including Section 11 thereof.
Hence he submitted that a reference can be made by the Court under Section 11(5) and
(6) of the said Act of disputes between licensees and generating companies. Accordingly
he submitted, the High Court order was valid.
21. It appears that the respondent Essar Power Limited was obliged under its agreement
with the Gujarat Electricity Board to supply power to the Board and the Essar Steel
Limited in the ratio of 300MW : 215MW. The grievance of the Board (now the Nigam)
was that the Essar Power Limited has diverted energy which was to be supplied to the
Board to the Essar Steel Limited. Hence the Board vide its letter dated 29.10.2003 raised
a demand of Rs.537 crores upon Essar Power Limited for diverting the said energy. On
the other hand, Essar Power Limited disputed the said claim by its reply dated 1.11.2003
and stated that the Board had not honoured its commitment under the agreement
regarding payment to it. The Board, thereafter, raised further claims against Essar Power
Limited.
22. The appellant-company then approached the Gujarat Electricity Regulatory
Commission under Section 86(1)(f) of the Electricity Act, 2003 whereas Essar Power
Limited filed a petition in the Gujarat High Court under Section 11(5) and (6) of the
Arbitration and Conciliation Act, 1996 in which the impugned order was passed.
23. It may be mentioned that before filing the petition in the High Court the respondent-
Essar Power Limited sent a notice dated 14.11.2005 invoking the arbitration clause and
nominating Mr. Justice A.M. Ahmadi as the sole Arbitrator in terms of Article 11 of the
agreement, and called upon the Nigam to concur to the said nomination or suggest its
own nominee within thirty days. Instead of concurring to the nominee suggested by the
company or suggesting its own nominee, the Nigam vide its letter dated 5.12.2005 denied
that the dispute can be resolved by appointing an Arbitrator under Section 11 of the Act
of 1996. The Nigam contended that only the State Commission can adjudicate the dispute
under Section 86(1)(f) of the Act of 2003, or refer the matter to an arbitrator.
24. The main question before us is whether the application under Section 11 of the Act of
1996 is maintainable in view of the statutory specific provisions contained in the
Electricity Act of 2003 providing for adjudication of disputes between the licensee and
the generating companies.
25. In our opinion, the submission of Mr. K.K. Venugopal has to be accepted.
26. It may be noted that Section 86(1)(f)
@page-SC1927
of the Act of 2003 is a special provision for adjudication of disputes between the licensee
and the generating companies. Such disputes can be adjudicated upon either by the State
Commission or the person or persons to whom it is referred for arbitration. In our opinion
the word 'and' in Section 86(1)(f) between the words 'generating companies' and 'to refer
any dispute for arbitration' means 'or'. It is well settled that sometimes 'and' can mean 'or'
and sometimes 'or' can mean 'and' (vide G.P. Singh's 'Principle of Statutory Interpretation'
9th Edition, 2004 page 404.)
27. In our opinion in Section 86(1)(f) of the Electricity Act, 2003 the word 'and' between
the words 'generating companies' and the words 'refer any dispute' means 'or', otherwise it
will lead to an anomalous situation because obviously the State Commission cannot both
decide a dispute itself and also refer it to some Arbitrator. Hence the word 'and' in Section
86(1)(f) means 'or'.
28. Section 86(1)(f) is a special provision and hence will override the general provision in
Section 11 of the Arbitration and Conciliation Act, 1996 for arbitration of disputes
between the licensee and generating companies. It is well settled that the special law
overrides the general law. Hence, in our opinion, Section 11 of the Arbitration and
Conciliation Act, 1996 has no application to the question who can adjudicate/arbitrate
disputes between licensees and generating companies, and only Section 86(1)(f) shall
apply in such a situation.
29. This is also evident from Section 158 of the Electricity Act, 2003 which has been
quoted above. We may clarify that the agreement dated 30.5.1996 is not a part of the
licence of the licensee. An agreement is something prior to the issuance of a licence.
Hence any provision for arbitration in the agreement cannot be deemed to be a provision
for arbitration in the licence. Hence also it is the State Commission which alone has
power to arbitrate/adjudicate the dispute either itself or by appointing an arbitrator.
30
. Shri Jayant Bhushan, learned counsel for one of the parties in the connected case
submitted that Section 86(1)(f) is violative of Article 14 of the Constitution of India
because it does not specify when the State Commission shall itself decide a dispute and
when it will refer the matter to arbitration by some arbitrator. In our opinion there is no
violation of Article 14 at all. It is in the discretionof the State Commission whether the
dispute should be decided itself or itshould be referred to an arbitrator. Some leeway has
to begiven to the legislature in such matters and there has to be judicial restraintin the
matter of judicial review of constitutionality of a statute videGovernment of Andhra
Pradesh and Ors. vs. Smt. P. Laxmi Devi JT 2008(2) 8 SC639. There are various reasons
why the State Commission maynot decide the dispute itself and may refer it for
arbitration by an arbitratorappointed by it. For example, the State Commission may
beoverburdened and may not have the time to decide certain disputes itself, andhence
such cases can be referred to an arbitrator. Alternatively, the disputemay involve some
highly technical point which even the State Commission may nothave the expertise to
decide, and such dispute in such a situation can bereferred to an expert arbitrator. There
may be various other considerations forwhich the State Commission may refer the
dispute to an arbitrator instead ofdeciding it itself. Hence there is no violation of Article
14 of theConstitution of India. 2008 AIR SCW 1826
31. We may now deal with the submission of Mr. Fali S. Nariman that in view of Section
175 of the Electricity Act, 2003, Section 11 of the Arbitration and Conciliation Act, 1996
is also available for arbitrating disputes between licensees and generating companies.
32. Section 175 of the Electricity Act, 2003 states that the provisions of the Act are in
addition to and not in derogation of any other law. This would apparently imply that the
Arbitration and Conciliation Act, 1996 will also apply to disputes such as the one with
which we are concerned. However, in our opinion Section 175 has to be read along with
Section 174 and not in isolation.
33. Section 174 provides that the Electricity Act, 2003 will prevail over anything
inconsistent in any other law. In our opinion the inconsistency may be express or implied.
Since Section 86(1)(f) is a special provision for adjudicating disputes between licensees
and generating companies, in our opinion by implication Section 11 of the Arbitration
and Conciliation Act, 1996 will not apply to such disputes i.e. disputes between licensees
and generating companies. This is because of the principle that the special law overrides
the general law. For adjudication
@page-SC1928
of disputes between the licensees and generating companies there is a special law namely
Section 86(1)(f) of the Electricity Act, 2003. Hence the general law in Section 11 of the
Arbitration and Conciliation Act, 1996 will not apply to such disputes.
34
. It is well settled that where a statute provides for a thing to be done in a particular
manner, then it has to be done in that manner, and in no other manner, vide Chandra
Kishore Jha vs. Mahavir Prasad, AIR 1999 SC 3558 (para 12), Dhananjaya Reddy vs.
State of Karnataka, AIR 2001 SC 1512 (para 22), etc. Section 86(1)(f) provides a special
manner of making references to an arbitrator in disputes between a licensee and a
generating company. Hence by implication all other methods are barred. 1999 AIR
SCW 3563
2001 AIR SCW 1217
35. At first glance there is an apparent inconsistency between Section 175 and Section
174 of the Electricity Act, 2003. While Section 174 says that the said Act will prevail
over other laws, Section 175 says that the said Act is in addition and not in derogation of
any other law (which would include Section 11 of the Arbitration and Conciliation Act,
1996.)
36. In our opinion to resolve this conflict the Mimansa principles of Interpretation would
of great utility.
37. It is deeply regrettable that in our Courts of law, lawyers quote Maxwell and Craies
but nobody refers to the Mimansa Principles of Interpretation. Today many of our
educated people are largely unaware about the great intellectual achievements of our
ancestors and the intellectual treasury they have bequeathed us. The Mimansa Principles
of Interpretation is part of that intellectual treasury but it is distressing to note that apart
from a reference to these principles in the judgment of Sir John Edge, the then Chief
Justice of Allahabad High Court in Beni Prasad vs. Hardai Devi, (1892) ILR 14 All 67
(FB), and some judgments by one of us (M. Katju, J.) there has been almost no utilization
of these principles even in our own country.
38. It may be mentioned that the Mimansa Rules of Interpretation were our traditional
principles of interpretation laid down by Jaimini, whose Sutras were explained by Shabar,
Kumarila Bhatta, Prabhakar, etc. These Mimansa Principles were regularly used by our
great jurists like Vijnaneshwara (author of Mitakshara), Jimutvahana (author of
Dayabhaga), Nanda Pandit, etc. whenever they found any conflict between the various
Smritis or any ambiguity, incongruity, or casus omissus therein. There is no reason why
we cannot use these principles on appropriate occasions. However, it is a matter of deep
regret that these principles have rarely been used in our law Courts. It is nowhere
mentioned in our Constitution or any other law that only Maxwell's Principles of
Interpretation can be used by the Court. We can use any system of interpretation which
helps us resolve a difficulty. In certain situations Maxwell's principles would be more
appropriate, while in other situations the Mimansa principles may be more suitable.
39. The Mimansa principles of interpretation were created for resolving the practical
difficulties in performing the yagyas. The rules for performing the various yagyas were
given in books called the Brahmanas (all in Sanskrit) e.g. Shatapath Brahmana, Aitareya
Brahmana, Taitareya Brahmana, etc. There were many ambiguities, obscurities, conflicts
etc. in the Brahmana texts, and hence the Mimansa Principles of Interpretation were
created for resolving these difficulties.
40. Although the Mimansa principles were created for religious purpose, they were so
rational and logical that they subsequently began to be used in law, grammar, logic,
philosophy, etc. i.e. they became of universal application. The books on Mimansa are all
in Sanskrit, but there is a good book in English by Prof. Kishori Lal Sarkar called 'The
Mimansa Rules of Interpretation' published in the Tagore Law Lecture Series, which may
be seen by anyone who wishes to go deeper into the subject.
41. In the Mimansa system there are three ways of dealing with conflicts which have
been fully discussed by Shabar Swami in his commentary on Sutra 14, Chapter III, Book
III of Jaimini.
(1) Where two texts which are apparently conflicting are capable of being reconciled,
then by the Principle of Harmonious Construction (which is called the Samanjasya
Principle in Mimansa) they should be reconciled. The Samanjasya Principle has been laid
down by Jaimini in Chapter II, Sutra 9 which states :
"The inconsistencies asserted are not actually
@page-SC1929
found. The conflicts consist in difference of application. The real intention is not affected
by application. Therefore, there is consistency."
42. The Samanjasya axiom is illustrated in the Dayabhag. Jimutvahana found that there
were two apparently conflicting texts of Manu and Yajnavalkya. The first stated "a son
born after a division shall alone take the paternal wealth". The second text stated "sons,
with whom the father has made a partition, should give a share to the son born after the
distribution". Jimutvahana, utilizing the Samanjasya principle of Mimansa, reconciled
these two texts by holding that the former applies to the case of property which is the
self-acquired property of the father, and the latter applies to the property descended from
the grandfather.
43. One of the illustrations of the Samanjasya principle is the maxim of lost horses and
burnt chariot (Nashtashvadaghda Ratha Nyaya). This is based on the story of two men
travelling in their respective chariots and one of them losing his horses and the other
having his chariot burnt through the outbreak of fire in the village in which they were
putting up for the night. The horses that were left were harnessed to the remaining chariot
and the two men pursued their journey together. Its teaching is union for mutual
advantage, which has been quoted in the 16th Vartika to Panini, and is explained by
Patanjali. It is referred to in Kumarila Bhatta's Tantra Vartika.
(2) The second situation is a conflict where it is impossible to reconcile the two
conflicting texts despite all efforts. In this situation the Vikalpa principle applies, which
says that whichever law is more in consonance with reason and justice should be
preferred. However, conflict should not be readily assumed and every effort should be
made to reconcile conflicting texts. It is only when all efforts of reconciliation fail that
the Vikalpa principle is to be resorted to.
(3) There is a third situation of a conflict and this is where there are two conflicting
irreconciliable texts but one overrides the other because of its greater force. This is called
a Badha in the Mimansa system (similar to the doctrine of ultra vires). The great
Mimansa scholar Sree Bhatta Sankara in his book 'Mimansa Valaprakasha' has given
several illustrations of Badha as follows :
"A Shruti of a doubtful character is barred by a Shruti which is free from doubt. A Linga
which is more cogent bars that which is less cogent. Similarly a Shruti bars a Smriti. A
Shruti bars Achara (custom) also. An absolute Smriti without reference to any popular
reason bars one that is based upon a popular reason. An approved Achara bars an
unapproved Achara. An unobjectionable Achara bars an objectionable Achara. A Smriti of
the character of a Vidhi bars one of the character of an Arthavada. A Smriti of a doubtful
character is barred by one free from doubts. That which serves a purpose immediately
bars that which is of a remote service. That which is multifarious in meaning is barred by
that which has a single meaning. The application of a general text is barred by a special
text. A rule of procedure is barred by a mandatory rule. A manifest sense bars a sense by
context. A primary sense bars a secondary sense. That which has a single indication is
preferable to what has many indications. An indication of an inherent nature bars one
which is not so. That which indicates an action is to be preferred to what merely indicates
a capacity. If you can fill up an ellipse by an expression which occurs in a passage, you
cannot go beyond it."
(Emphasis supplied)
44. The principle of Badha is discussed by Jaimini in the tenth chapter of his work. Badha
primarily means barring a thing owing to inconsistency. Jaimini uses the principle of
Badha mainly with reference to cases where Angas or sub-ceremonies are to be
introduced from the Prakriti Yagya (i.e. a yagya whose rules for performance are given in
detail in the Brahmanas) into a Vikriti (i.e. a yagya whose rules of performance are not
mentioned anywhere, or are incompletely mentioned). In such a case, though the Angas
or the sub-ceremonies are to be borrowed from the Prakriti Yagya, those of the sub-
ceremonies which prove themselves to be inconsistent with or out of place in the Vikriti
Yagya, are to be omitted.
45. For example, in the Rajsuya Yagya, certain homas are prescribed, for the proper
performance of which one must borrow details from the Darshapaurnamasi Yagya. In the
Rajsuya Yagya, plain ground is directed to be selected as the Vedi for the homas, while in
the case of the Darshapaurnamasi, the Vedi should be erected by digging the ground with
spade etc. Such an act would
@page-SC1930
be out of place in constructing the Vedi for the homas in the Rajsuya Yagya. Here, there is
a Badha (bar) of the particular rule regarding the erection of the Vedi in the
Darshapaurnarnasi Yagya, being extended to the Rajsuya Yagya. This is the case of Badha
by reason of express text.
46. There are other instances in which the inconsistency arises incidentally. For example,
in the Sadyaska there is no need of cutting the peg with which the animal is to be tied.
But, in the Agni-Somiya Yagya which is the Prakriti of the Sadyaska Yagya, reciting of
certain Mantras is prescribed in connection with the cutting of the peg. This recital being
out of place in the former Yagya is barred in carrying the Atidesha process. Numerous
other illustrations can be given. For example, in the Satra Yagya the selection of Rittik is
out of place and so omitted, though this is done in the Soma Yagya of which the Satra is
the Vikriti. The Krishnala Nyaya (black bean maxim) is another instance. In cases where
Atidesha is to be made by implication, it is altogether barred, if there is an express text
against making the implication.
47. When there is a negative ordinance prohibiting a thing, it is to prevail notwithstanding
that there is an Atidesha which by implication enjoins the thing. For instance, there is a
rule that all sacrifices partake of the character of Darsha and Paurnamasi Yagyas. The
result is that all the rules of Darsha and Paurnamasi Yagyas are applicable to the Pasu
Yagya also. But there is a text which says that the Aghara and the Ajyabhaga homas need
not be made in the Pasu Yagya. Therefore, these homas need not be made in the Pasu
Yagya, though in the absence of the prohibitory text they would have to be made on
account of the rule which lays down that all Yagyas must partake of the character of
Darsha and Paurnamasi.
48. One of the Mimansa principles is the Gunapradhan Axiom, and since we are utilizing
it in this judgment (apart from the badha and samanjasya principles) we may describe it
in some detail.
49. 'Guna' means subordinate or accessory, while 'Pradhan' means principal. The
Gunapradhan Axiom states :
"If a word or sentence purporting to express a subordinate idea clashes with the principal
idea, the former must be adjusted to the latter or must be disregarded altogether."
This principle is also expressed by the popular maxim known as matsya nyaya i.e. 'the
bigger fish eats the smaller fish'.
According to Jaimini, acts are of two kind, principal and subordinate (see Jaimini 2 : 1 :
6).
In Sutra 3 : 3 : 9 Jaimini states :
Kumarila Bhatta, in his Tantravartika (See Ganganath Jha's English Translation Vol.3,
page 1141) explains this Sutra as follows :
"When the Primary and the Accessory belong to two different Vedas, the Vedic
characteristic of the Accessory is determined by the Primary, as the Accessory is
subservient to the purpose of the primary."
It is necessary to explain this Sutra in some detail. The peculiar quality of the Rigveda
and Samaveda is that the mantras belonging to them are read aloud, whereas the mantras
in the Yajurveda are read in a low voice. Now the difficulty arose about certain
ceremonies, e.g. Agnyadhana, which belong to the Yajurveda but in which verses of the
Samveda are to be recited. Are these Samaveda verses to be recited in a low voice or loud
voice ? The answer, as given in the above Sutra, is that they are to be recited in low voice,
for although they are Samavedi verses, yet since they are being recited in a Yajurveda
ceremony their attribute must be altered to make it in accordance with the Yajurveda.
Commenting on Jaimini 3 : 3 : 9 Kumarila Bhatta says :
"The Siddhanta (principle) laid down by this Sutra is that in a case where there is one
qualification pertaining to the Accessory by itself and another pertaining to it through the
Primary, the former qualification is always to be taken as set aside by the latter. This is
because the proper fulfillment of the Primary is the business of the Accessory also as the
latter operates solely for the sake of the former. Consequently if, in consideration of its
own qualification it were to deprive the Primary of its natural accomplishment then there
would be a disruption of that action (the Primary) for the sake of which it was meant to
operate. Though in such a case the proper fulfillment of the Primary with all its
accompaniments would mean the
@page-SC1931
deprival of the Accessory of its own natural accompaniment, yet, as the fact of the
Accessory being equipped with all its accompaniments is not so very necessary (as that of
the primary), there would be nothing incongruous in the said deprival". See Ganganath
Jha's English translation of the Tantravartika, Vol.3 page 1141.
50. In our opinion the gunapradhan axiom applies to this case. Section 174 is the pradhan
whereas Section 175 is the guna (or subordinate). If we read Section 175 in isolation then
of course we would have to agree to Mr. Nariman's submission that Section 11 of the
Arbitration and Conciliation Act, 1996 applies. But we cannot read Section 175 in
isolation, we have to read it along with Section 174, and reading them together, we have
to adjust Section 175 (the guna or subordinate) to make it in accordance with Section 174
(the pradhan or principal). For doing so we will have to add the following words at the
end of Section 175 "except where there is a conflict, express or implied, between a
provision in this Act and any other law, in which case the former will prevail".
51. No doubt ordinarily the literal rule of interpretation should be followed, and hence the
Court should neither add nor delete words in a statute. However, in exceptional cases this
can be done where not doing so would deprive certain existing words in a statute of all
meaning, or some part of the statute may become absurd.
52. In the chapter on 'Exceptional Construction' in his book on 'Interpretation of Statutes'
Maxwell writes :
"Where the language of a statute, in its ordinary meaning and grammatical construction
leads to a manifest contradiction of the apparent purpose of the enactment, or to some
inconvenience or absurdity, hardship or injustice, presumably not intended, a construction
may be put upon it which modifies the meaning of the words, and even the structure of
the sentence. This may be done by departing from the rules of grammar, by giving an
unusual meaning to particular words, by altering their collocation, by rejecting them
altogether, or by interpolating other words, under the influence, no doubt, of an
irresistible conviction that the legislature could not possibly have intended what the
words signify, and that the modifications thus made are mere corrections of careless
language and really give the true intention."
53
. Thus, in S.S. Kalra vs. Union of India 1991 (2) SCC 87, this Court has observed that
sometimes courts can supply words which have been accidentally omitted. 1991 AIR
SCW 431
54. In G.P. Singh's 'Principles of Statutory Interpretation' Ninth Edition, 2004 at pages
71-74 several decisions of this Court and foreign Courts have been referred to where the
Court has added words to a statute (though cautioning that normally this should not be
done).
55. Hence we have to add the aforementioned words at the end of Section 175 otherwise
there will be an irreconciliable conflict between Section 174 and Section 175.
56. In our opinion the principle laid down in Section 174 of the Electricity Act, 2003 is
the principal or primary whereas the principle laid down in Section 175 is the accessory
or subordinate to the principal. Hence Section 174 will prevail over Section 175 in
matters where there is any conflict (but no further).
57. In our opinion Section 174 and Section 175 of the Electricity Act, 2003 can be read
harmoniously by utilizing the Samanjasya, Badha and Gunapradhana principles of
Mimansa. This can be done by holding that when there is any express or implied conflict
between the provisions of the Electricity Act, 2003 and any other Act then the provisions
of the Electricity Act, 2003 will prevail, but when there is no conflict, express or implied,
both the Acts are to be read together.
58. In the present case we have already noted that there an implied conflict between
Section 86(1)(f) of the Electricity Act, 2003 and Section 11 of the Arbitration and
Conciliation Act, 1996 since under Section 86(1)(f) the dispute between licensees and
generating companies is to be decided by the State Commission or the arbitrator
nominated by it, whereas under Section 11 of the Arbitration and Conciliation Act, 1996,
the Court can refer such disputes to an arbitrator appointed by it. Hence on harmonious
construction of the provisions of the Electricity Act, 2003 and the Arbitration and
Conciliation Act, 1996 we are of the opinion that whenever there is a dispute between a
licensee and the generating companies only the State Commission or Central
Commission (as the case may be) or arbitrator (or arbitrators) nominated by it can resolve
such
@page-SC1932
a dispute, whereas all other disputes (unless there is some other provision in the
Electricity Act, 2003) would be decided in accordance with Section 11 of the Arbitration
and Conciliation Act, 1996. This is also evident from Section 158 of the Electricity Act,
2003. However, except for Section 11 all other provisions of the Arbitration and
Conciliation Act, 1996 will apply to arbitrations under Section 86(1)(f) of the Electricity
Act, 2003 (unless there is a conflicting provision in the Electricity Act, 2003, in which
case such provision will prevail.)
59. In the present case, it is true that there is a provision for arbitration in the agreement
between the parties dated 30.5.1996. Had the Electricity Act, 2003 not been enacted,
there could be no doubt that the arbitration would have to be done in accordance with the
Arbitration and Conciliation Act, 1996. However, since the Electricity Act, 2003 has
come into force w.e.f. 10.6.2003, after this date all adjudication of disputes between
licensees and generating companies can only be done by the State Commission or the
arbitrator (or arbitrators) appointed by it. After 10.6.2003 there can be no adjudication of
dispute between licensees and generating companies by anyone other than the State
Commission or the arbitrator (or arbitrators) nominated by it. We further clarify that all
disputes, and not merely those pertaining to matters referred to in clauses (a) to (e) and
(g) to (k) in Section 86(1), between the licensee and generating companies can only be
resolved by the Commission or an arbitrator appointed by it. This is because there is no
restriction in Section 86(1)(f) about the nature of the dispute.
60. We make it clear that it is only with regard to the authority which can adjudicate or
arbitrate disputes that the Electricity Act, 2003 will prevail over Section 11 of the
Arbitration and Conciliation Act, 1996. However, as regards, the procedure to be
followed by the State Commission (or the arbitrator nominated by it) and other matters
related to arbitration (other than appointment of the arbitrator) the Arbitration and
Conciliation Act, 1996 will apply (except if there is a conflicting provision in the Act of
2003). In other words, Section 86(1)(f) is only restricted to the authority which is to
adjudicate or arbitrate between licensees and generating companies. Procedural and other
matters relating to such proceedings will of course be governed by Arbitration and
Conciliation Act, 1996, unless there is a conflicting provision in the Act of 2003.
61. Since the High Court has appointed an arbitrator for deciding the dispute between the
licensee and the generating company, in our opinion, the judgment of the High Court has
to be set aside. Only the State Commission or the arbitrator (or arbitrators) appointed by
it could resolve such a dispute. We, therefore, set aside the impugned judgment of the
High Court but leave it open to the State Commission or the Arbitrator (or Arbitrators)
nominated by it to adjudicate/arbitrate the dispute between the parties expeditiously.
Appeal allowed. The impugned judgment set aside.
62. Case No. 873 of 2005 filed by the appellant under Section 86(1)(f) of the Electricity
Act, 2003 before the Gujarat Electricity Regulatory Commission, is still pending. Since
the matter is pending from 2005, we direct the Gujarat Electricity Regulatory
Commission to dispose of the petition as expeditiously as possible preferably within six
months.
C.A. No. 1941/2008 [Arising out of S.L.P(C) No.675/2007]
63. This appeal is filed regarding the deduction of Rs.5 crores. The appellant may file
application under Section 94(2) of the Electricity Act, 2003 before the appropriate
Commission, to pass such an interim order, as may consider appropriate. This appeal is,
accordingly, dismissed.
Order accordingly.
AIR 2008 SUPREME COURT 1932 "Drugs Inspector v. M/s. Fizikem Laboratories Pvt.
Ltd."
(From : 2006 Cri LJ 3090 (Andh. Pra.))
Coram : 2 A. K. MATHUR AND ALTAMAS KABIR, JJ.
-2008.
Drugs Inspector and Anr. v. M/s. Fizikem Laboratories Pvt. Ltd. and Anr.
Drugs and Cosmetics Act (23 of 1940), S.32, S.27 - DRUGS, COSMETICS AND
MAGIC REMEDIES - Mislabelling ayurvedic drug - Sildenafil citrate - Is allopathic
drug and not an ayurvedic drug - Accused, Respondent company not possessing license to
use the same - Selling it as one of ingredients in sample of ozomen capsules and not
displaying the name in prescribed matter - It constitute offence
@page-SC1933
u/S.18 punishable u/S.27 - Prosecution can be launched by Inspector under Ch.IV of Act.
2006 Cri LJ 3090 (A.P.), Reversed.
Sildenafil citrate is an allopathic drug and by no stretch of imagination it can be said as
an Ayurvedic drug. Since it is an allopathic drug and it cannot be used by anybody else
unless a person who holds the licence for it. It is an admitted position that the accused
does not possess the licence. Therefore, the very fact of selling this drug as one of the
ingredients in the sample of Ozomen capsule, taken from accused and not displaying the
name in the prescribed manner in the drugs will also constitute an offence under S. 18 (a),
(b) and (c) punishable under S. 27(b)(ii). The Inspector appointed under Chapter IV is
competent to launch prosecution for the aforesaid sections against the accused.
2006 Cri LJ 3090 (A.P.), Reversed. (Paras 7, 8)
Anoop G. Choudhari, Sr. Advocate, Mrs. June Choudhari, Mrs. D. Bharathi Reddy, Ms.
Altaf Fatima and Debojit Barkakoti, with him for Appellants; Sidharth Luthra, Sr.
Advocate, Sanjeev Sachdeva, Ms. Rajni Gupta and Shri Singh, with him for
Respondents.
Judgement
A. K. MATHUR, J. :- Leave granted.
2. This appeal is directed against the order passed by learned Single Judge of the Andhra
Pradesh High Court in a batch of petitions under Section 482 of the Code of Criminal
Procedure (hereinafter to be referred to as the CrPC) whereby the learned Single Judge
has held that the Drugs Inspector appointed under Section 21 of the Drugs and Cosmetics
Act, 1940 (hereinafter to be referred to as the Act) had no jurisdiction to launch
prosecution under Section 32 of the Act for alleged offences said to have been committed
under this Act in connection with manufacture and sale of Ayurvedic drugs Ozomen
capsules and Ozomen forte.
3. The brief facts which are necessary for disposal of this appeal are that the Inspector of
Drugs inspected some of the business premises of these respondents where Ozomen
capsules and Ozomen forte were available for sale. He took the samples and after taking
the sample he sent the same to the Government Analyst, Hyderabad for analysis. The
Government Analyst submitted his report declaring that Ozomen capsules under different
batches contained 45.2 mg of sildenafil citrate per capsule. The persons from whom the
samples were taken were called upon to disclose the name of manufacturer and on
disclosure of the name of manufacturer, prosecution was launched against the
respondents for contravention of Sections 18(c), 18(a)(i) read with Section 17-B(d) of the
Act namely, prohibition of manufacture and sale of certain drugs and cosmetics which are
misbranded, spurious and substituted wholly or in part by another drug or substance and
the Central Government prohibited manufacturer etc. of the drugs and cosmetics in public
interest under notification issued under Section 26-A, vide notification No.GSR 577(e),
dated 23.7.1983 punishable under Sections 27(b)(ii), 27(c), 27(d) and 28-B of the Act. It
is this action initiated by the Drugs Inspector which was challenged. The respondents
were arrayed as accused for the aforesaid offences because they had no licence for the
manufacture of Ayurvedic drug sildenafil citrate and they were mislabelling the
Ayurvedic drugs. The sildenafil citrate is a new drug and it is patent and proprietary
medicine. It is an allopathic drug used for erectile dysfunction. The respondent-accused
company was holding Allopathic as well as Ayurvedic licence but the company does not
hold the licence to manufacture sildenafil citrate. The information was received by the
Drugs Inspector that sildenafil citrate manufactured by these companies for various
medical establishments in the State of Andhra Pradesh had no licence to manufacture
sildenafil citrate. Ozomen forte capsule contained 33.9 mg to 46.82 mg of sildenafil
citrate per capsule. Therefore, the question was whether the respondent-company which
are manufacturing Ayurvedic drug and had no licence for manufacturing sildenafil forte
could be prosecuted under Chapter IV or not.
4. Before the Learned Single Judge it was submitted that since the respondents are being
prosecuted for contravention of Section 18, Section 19(a)(i) read with Section 17-B (d)
and Section 17(b) of the Act the accused had no licence for manufacture of the sildenafil
forte which is one of the ingredients of Ozomen forte i.e. Ayurvedic drug, therefore, the
respondent can be prosecuted under this section or not. The submission of the
respondents was that they have been holding licence for the Ayurvedic
@page-SC1934
preparation and for any Ayurvedic preparation of spurious or misbranded nature, the
Inspector appointed under Chapter IVA alone is competent to launch prosecution and not
Inspector appointed under Chapter IV.
5. In order to appreciate the contention raised by learned counsel for the parties, it will be
appropriate to refer to relevant provisions of the Act. The Act defines Ayurvedic, Siddha
or Unani drug under Section 3(a) which reads as under:
"(a) Ayurvedic, Siddha or Unani drug includes all medicines intended for internal or
external use for or in the diagnosis, treatment, mitigation or prevention of disease or
disorder in human beings or animals, and manufactured exclusively in accordance with
the formulae described in, the authoritative books of Ayurvedic, Siddha and Unani Tibb
system of medicine, specified in the First Schedule;"
Section 3(e) defines Inspector which reads as under :
"(e) "Inspector" means -
(i) in relation to Ayurvedic, Siddha or Unani drug, an Inspector appointed by the Central
Government or a State Government under section 33G; and
(ii) in relation to any other drug or cosmetic, an Inspector appointed by the Central
Government or a State Government under section 21;"
Section 3(h) defines patent and proprietary medicine which reads as under :
"(h) "patent or proprietary medicine" means, -
(i) in relation to Ayurvedic, Siddha or Unani Tibb systems of medicine all formulations
containing only such ingredients mentioned in the formulae described in the authoritative
books of Ayurveda, Siddha or Unani Tibb systems of medicine specified in the First
Schedule, but does not include a medicine which is administered by parenteral route and
also a formulation included in the authoritative books as specified in clause (a);
(ii) in relation to any other systems of medicine, a drug which is a remedy or prescription
presented in a form ready for internal or external administration of human beings or
animals and which is not included in the edition of the Indian-Pharmacopoeia for the time
being or any other Pharmacopoeia authorized in this behalf by the Central Government
after consultation with the Drugs Technical Advisory Board constituted under section 5;"
Section 13 deals with offences. Chapter IV deals with manufacture, sale and distribution
of drugs and cosmetics. Section 16 under this Chapter deals with standard and quality. As
per Section 16, all drugs complies with the standard set out in the second schedule.
Section 17 deals with misbranded drugs which reads as under :
"17. Misbranded drugs. - For the purposes of this Chapter a drug shall be deemed to be
misbranded, -
(a) if it is so coloured, coated, powdered or polished that damage is concealed or if it is
made to appear of better or greater therapeutic value than it really is; or
(b) if it is not labelled in the prescribed manner; or
(c) if it is label or container or anything accompanying the drug bears any statement,
design or device which makes any false claim for the drug or which is false or misleading
in any particular.
Section 17A deals with adulterated drugs which reads as under :
"17A. Adulterated drugs- For the purposes of this Chapter, a drug shall be deemed to be
adulterated, -
(a) if it consists in whole or in part, of any filthy, putrid or decomposed substance; or
(b) if it has been prepared, packed or stored under insanitary conditions whereby it may
have been contaminated with filth or whereby it may have been rendered injurious to
health; or
(c) if its container is composed, in whole or in part, of any poisonous or deleterious
substance which may render the contents injurious to health; or
(d) if it bears or contains, for purposes of colouring only, a colour other than one which is
prescribed; or
(e) if it contains any harmful or toxic substance which may render it injurious to health;
or
(f) if any substance has been mixed therewith so as to reduce its quality or strength."
Section 17-B deals with spurious drugs, Section 17-C deals with misbranded cosmetics
and Section 17-D deals with spurious cosmetics. Section 18 which deals with prohibition
@page-SC1935
of manufacture and sale of certain drugs and cosmetics, is relevant for our purpose and
reads as under :
"18. Prohibition of manufacture and sale of certain drugs and cosmetics. From such date
as may be fixed by the State Government by notification in the Official Gazette in this
behalf, no person shall himself or by any other person on his behalf - (a) manufacture for
sale or for distribution, or sell, or stock or exhibit or offer for sale, or distribute -
(i) any drug which is not of a standard quality, or is misbranded, adulterated or spurious;
(ii) any cosmetic which is not of a standard quality or is misbranded or spurious;
(iii) any patent or proprietary medicine, unless there is displayed in the prescribed manner
on the label or container thereof the true formula or list of active ingredients contained in
it together with the quantities, thereof;
(iv) any drug which by means of any statement, design or device accompanying it or by
any other means, purports or claims to prevent, cure or mitigate any such disease or
ailment, or to have any such other effect as may be prescribed;
(v) any cosmetic containing any ingredient which may render it unsafe or harmful for use
under the directions indicated or recommended;
(vi) any drug or cosmetic in contravention of any of the provisions of this Chapter or any
rule made thereunder;
(b) sell, or stock or exhibit or offer for sale, or distribute any drug or cosmetic which has
been imported or manufactured in contravention of any of the provisions of this Act or
any rule made thereunder;
(c) manufacture for sale or for distribution, or sell, or stock or exhibit or offer for sale, or
distribute any drug or cosmetic, except under, and in accordance with the conditions of, a
licence issued for such purpose under this Chapter;
Provided that nothing in this section shall apply to the manufacture, subject to prescribed
conditions, of small quantities of any drug for the purpose of examination, test or
analysis;
Provided further that the Central Government may, after consultation with the Board, by
notification in the Official Gazette, permit, subject to any conditions specified in the
notification, the manufacture for sale or for distribution, sale, stocking or exhibiting or
offering for sale or distribution of any drug or class of drugs not being of standard
quality."
Section 18 prohibits any person from manufacturing for sale or for distribution or sell or
stock or exhibit or offer for sale or distribute any drug which is not of a standard quality
or is misbranded, adulterated or spurious. Section 18(c) says that no person shall himself
or by any other person on his behalf manufacture for sale or for distribution, or sell or
stock or exhibit or offer for sale or distribute any drug or cosmetic, except under, and in
accordance with the conditions of, a licence issued for such purpose under this Chapter.
Section 21 deals with Inspectors. The Inspectors can be appointed by the Central
Government or the State Government by notification in the Official Gazette having the
prescribed qualifications and they may perform such duties for drugs or classes of drugs,
or cosmetics or classes of cosmetics and they shall be public servant within the meaning
of Section 21 of the Indian Penal Code. Section 22 lays down the powers of the
Inspectors. The Inspector has power to inspect any premises wherein any drug or
cosmetic is being manufactured. He has the power for testing the drugs or cosmetics. He
has also power to search and such other powers which are necessary for enforcement of
the provisions of the Act. Section 23 deals with procedure which is to be employed by the
Inspectors. After taking all necessary samples and obtaining report from the Drugs
Analyst he can also launch prosecution with the previous sanction. Punishment has been
prescribed under Section 27. Any person who manufactures for himself or by any other
person on his behalf, manufactures for sale or for distribution, or sells or stocks or
exhibits or offers for sale or distributes any adulterated, spurious or misbranded drugs
then he shall be punished under Section 27. Chapter IVA which was introduced with
effect from 1.2.1969 deals with provisions relating to Ayurvedic, Siddha and Unani drugs.
Here also identical provisions are there. Section 33-E deals with misbranded drugs,
Section 33-EE deals with adulterated drugs and Section 33-EEA deals with spurious
drugs and it is punishable under Section 33-1. Section 33-G deals with the Inspectors
@page-SC1936
which says that the Central Government or a State Government may, by notification in
the Official Gazette, appoint such persons as it thinks fit, having certain prescribed
qualifications and it has laid down their duties, functions who could launch prosecution
for breach of any of the provisions.
6. The provisions in Chapter IV and Chapter IVA are almost identical. Chapter IVA deals
with special branch of medicines like, Ayurvedic, Siddha and Unani drugs whereas
Chapter IV deals with branches other than Chapter IVA. Learned Single Judge has taken
the view that since Ozomen capsules had a component like sildenafil citrate, therefore,
they may be misbranded, spurious or adulterated for which the prosecution could only be
launched by the Inspector authorised under Chapter IVA. But the prosecution in this case
was launched under Chapter IV. Therefore, learned Single Judge came to the conclusion
that the Inspector under Chapter IV had no jurisdiction to launch the prosecution and it is
only the Inspector who has been appointed under Chapter IVA could have launched the
prosecution against the accused for breach of the provisions of the Act for adulteration,
misbranding in the Ayurvedic drugs.
7. Learned counsel for the appellants submitted that it is not the case that only Chapter
IVA is involved but the offence has also been committed under Chapter IV also. Learned
counsel for the appellants submitted that Ozomen capsules and Ozomen forte had a
component of sildenafil citrate and this medicine does not fall under Chapter IVA.
Therefore, learned counsel for the appellants submitted that use of this medicine in the
Ayurvedic medicines is also punishable under Chapter IV as accused has no licence to
deal with this drug. The accused had to mix this drug with other Ayurvedic drugs,
therefore, the accused can also be prosecuted for selling Allopathic drug like sildenafil
citrate when licence is required under Section 18. Learned counsel for the appellants
submitted that sildenafil citrate is a new drug and it is an Allopathic drug. This cannot be
used for the Ayurvedic medicines without displaying in the prescribed manner on the
label or container thereof or list of active ingredients contained in it together with the
quantities thereof. It is also punishable under Section 18 (a)(iii) read with Section 27 (d)
of the Act. Learned counsel for the appellants also pointed out that the respondents also
manufactured and sold this spurious Ozomen capsules containing sildenafil citrate
violating Section 18(a) which is punishable under Section 27(d) of the Act. The sum total
of the submission of learned counsel for the appellants was that the very fact of dealing
with sildenafil citrate drug and distributing the same after making a different component
of Ayurvedic drug itself constitutes an offence. Therefore, it is erroneous to say that since
the accused is dealing with Ayurvedic drugs therefore, only the Inspector who is
authorized under Chapter IVA could launch the prosecution and not the Inspectors
appointed under Chapter IV. The accused has used sildenafil citrate which is an allopathic
drug. Sildenafil citrate is a white to off-white crystalline powder with a solubility of 3.5
mg/ml in water and molecular weight of 666.7 . Viagra (sildenafil citrate) is formulated
as blue, film-coated rounded-diamond shaped tablets equivalent to 25mg, 50 mg and 100
mg of sildenafil for oral administration. In addition to the active ingredient, sildenafil
citrate, each tablet contains the following inactive ingredients; microcrystalline cellulose,
anhydrous dibasic calcium phosphate, croscarmellose sodium, magnesium stearate,
hypromellose, titanium dioxide, lactose, triacetin and FD and C Blue No. 2 aluminum
lake. The brand name is Viagra and generic name is sildenafil citrate. This is an allopathic
drug and by no stretch of imagination it can be said as an Ayurvedic drug. Therefore,
learned counsel for the appellants appears to be justified that since it is an allopathic drug
and it cannot be used by anybody else unless a person who holds the licence for it. It is an
admitted position that the accused does not possess the licence. Therefore, the very fact
of selling this drug as one of the ingredients in the Ozomen capsule and not displaying
the name in the prescribed manner in the drugs will also constitute an offence under
Section 18 (a), (b) and (c) punishable under Section 27(b)(ii). The submission of learned
counsel for the appellants is justified and we are of opinion that the view taken by learned
Single Judge of the High Court is not correct and the High Court should not have
proceeded to quash the whole proceedings under Section 482 of the Code of Criminal
Procedure when serious issues were involved in the matter.
8. In the result, we allow this appeal and
@page-SC1937
set aside the order passed by the High Court and direct that the Inspector appointed under
Chapter IV is competent to launch prosecution for the aforesaid sections against the
accused. We have also been informed in the alternative prosecution has also been
launched against the accused under Chapter IVA. Both the prosecution can be tagged
together and the learned trial court should proceed with the matter. However, any
observations made by us in disposing this appeal will not prejudice the rights of either
parties.
Appeal allowed.
AIR 2008 SUPREME COURT 1937 "P. K. Choudhury v. Commander, 48 BRTF
(GREF)"
(From : Gauhati)*
-2008.
P.K. Choudhury v. Commander, 48 BRTF (GREF).
(A) Criminal P.C. (2 of 1974), S.462 - INHERENT POWERS - COGNIZANCE OF
OFFENCE - LIMITATION - Cognizance of offence - Limitation - Condonation of delay -
Accused ought to be heard before condoning delay.
1994 AIR SCW 4301, Rel. on. (Para 10)
(B) Criminal P.C. (2 of 1974), S.197, S.200 - Army Act (46 of 1950), S.125, S.126 -
SANCTION FOR PROSECUTION - COMPLAINT - ARMY - PUBLIC SERVANTS -
Sanction to prosecute - Necessity - Complaint u/S.166, u/S.167 of Penal Code against
member of Armed Forces - Offence alleged has direct nexus with discharge of his official
duties - Sanction to prosecute is necessary - Neither S.125 nor S.126 of 1950 Act grants
exemption from this requirement - Cognizance taken without sanction - Liable to be set
aside.
Cri. Revn. No. 1 (AP) of 2006, D/-21-03-2006 (Gau), Reversed. (Paras 11, 13, 14, 15)
2008 AIR SCW 1375 (Rel. on) 15
Nagendra Rai, Sr. Advocate, D. Bharat Kumar, Anand, Ms. M. Indrani and Abhijit
Sengupta, for Appellant; R.G. Padia, Sr. Advocate, Ms. Savitri Pandey and D.S. Mahra,
for Respondent.
* Cri. Revn. No. 1 (A.P.) of 2006, D/- 21-3-2006 (Gau)
Judgement
1. Appellant herein is aggrieved by and dissatisfied with a Judgment and order dated 21st
March, 2006 passed by a learned Single Judge of the Gauhati High Court.
2. Indisputably, Appellant at all material times was a Commandant of 48 BRTF (GREF)
as a member of the Armed Forces. While he was acting in the said capacity, allegations
were made against him for commission of offences under Sections 166 and 167 of the
Indian Penal Code, 1860.
3. The period during which the said offences are said to have been committed is 5.1.1989
to 11.2.1992. A complaint petition was filed in November, 2000 purported to be on the
basis of a report dated 20.12.1996 of the then Commander, 48 BRTF at Tezu on
20.12.1996.
The Judicial Magistrate, First Class, Tezu took cognizance of the said offences against the
appellant by an Order dated 7.11.2000.
4. The application filed by the appellant under Section 482 of the Code of Criminal
Procedure, 1973 for quashing the said proceedings has been dismissed by the Gauhati
High Court by reason of the impugned judgment.
5. Mr. Nagendra Rai, the learned senior counsel appearing on behalf of the appellant
would submit that the order taking cognizance is bad in law as the same was filed beyond
the prescribed period of limitation and in any event was not preceded by a valid order of
sanction of the competent authority as envisaged under Section 197 of the Code of
Criminal Procedure.
6. Sections 166 and 167 of the Indian Penal Code provides for an offence by a public
servant.
Whereas Section 166 prescribes a sentence of simple imprisonment for a term which may
extend to one year; the sentence which can be imposed under Section 167 is one of either
description for a term which may extend to three years or with fine or with both.
7. Section 468 of the Code of Criminal Procedure, 1973 specifies the period of limitation
within which the cognizance of an
@page-SC1938
offence can be taken. Clause (c) of sub-section (2) of Section 468 specifies the period of
limitation to be three years if the offence is punishable with imprisonment for a term
exceeding one year but not exceeding three years.
8. There is no doubt or dispute that the Court has the power to condone the delay. No
order condoning the delay has, however, been passed by the learned Judicial Magistrate
in this case.
The ground taken for condonation of delay in the said complaint petition of the
complainant is as under :-
"8. That a Court of Inquiry was held by the Department against the irregularities in
Supply Orders and thereafter the case was under consideration by Army HQ. The Central
Vigilance Commission also investigated the matter since 20 December, 1996 and on the
completion of investigation by CVC, the matter was barred by limitation for taking action
under the Army Act against the accused. Hence the delay in filing this complaint in the
Court and the delay may be condoned under Section 473, Cr.P.C. as the delay was not
intentional but inevitable in holding Court of Inquiry."
9
. The learned Judicial Magistrate did not apply his mind on the said averments. It did not
issue any notice upon the appellant to show cause as to why the delay shall not be
condoned. Before condoning the delay the appellant was not heard. In State of
Maharashtra vs. Sharadchandra Vinayak Dongre and others [(1995) 1 SCC 42] this Court
held; 1994 AIR SCW 4301
"5. In our view, the High Court was perfectly justified in holding that the delay, if any, for
launching the prosecution, could not have been condoned without notice to the
respondents and behind their back and without recording any reasons for condonation of
the delay. However, having come to that conclusion, it would have been appropriate for
the High Court, without going into the merits of the case to have remitted the case to the
trial Court, with a direction to decide the application for condonation of delay afresh after
hearing both sides. The High Court, however, did not adopt that course and proceeded
further to hold that the trial Court could not have taken cognizance of the offence in view
of the application filed by the prosecution seeking permission of the Court to file a
"supplementary charge-sheet" on the basis of an "incomplete charge-sheet" and quashed
the order of the CJM dated 21-11-1986 on this ground also. This view of the High Court,
in the facts and circumstances of the case is patently erroneous."
10. In view of the aforesaid decision, there cannot be any doubt whatsoever that appellant
was entitled to get an opportunity of being heard before the delay could be condoned.
11. Far more important, however, is the question of non-grant of sanction. Appellant
admittedly is a public servant. He is said to have misused his position as a public servant.
Section 197 of the Code of Criminal Procedure lays down requirements for obtaining an
order of sanction from the competent authority, if in committing the offence, a public
servant acted or purported to act in discharge of his official duty. As the offences under
Sections 166 and 167 of the Indian Penal Code have a direct nexus with commission of a
criminal misconduct on the part of a public servant, indisputably an order of sanction was
pre-requisite before the learned Judicial Magistrate could issue summons upon the
appellant.
12. Respondents in their counter affidavit, however, would contend that no such sanction
was required to be taken as the appellant would be governed by the provisions of
Sections 125 and 126 of the Army Act, 1950. The said provisions in our considered
opinion have no application whatsoever.
13. Section 125 of the Act postulates a choice of the competent authority to try an
accused either by a criminal court or any court or proceedings for court martial. Section
126 provides for the power of the Criminal Court to require delivery of offender.
14. As an option to get the appellant tried in a ordinary criminal court had been exercised
by the respondent, there cannot be any doubt whatsoever that all the pre-requisites
therefor in regard to the period of limitation as also the necessity to obtain the order of
sanction were required to be complied with.
A Court of law cannot take cognizance of an offence, if it is barred by limitation. Delay in
filing a complaint petition therefore has to be condoned. If the delay is not condoned, the
court will have no jurisdiction to take cognizance. Similarly unless it is held
@page-SC1939
that a sanction was not required to be obtained, the court's jurisdiction will be barred.
15
. Section 197 of the Code unlike the provisions of the Prevention of Corruption Act
postulates obtaining of an order of sanction even in a case where public servant has
ceased to hold office. The requirements to obtain a valid order of sanction have been
highlighted by this Court in a large number of cases. In S. K. Zutshi and another vs.
Bimal Debnath and another [(2004) 8 SCC 31], this Court held : 2004 AIR SCW 4643
"11. The correct legal position, therefore, is that an accused facing prosecution for
offences under the old Act or the new Act cannot claim any immunity on the ground of
want of sanction, if he ceased to be a public servant on the date when the court took
cognizance of the said offences. But the position is different in cases where Section 197
of the Code has application."
(Emphasis adduced)
See also State of Orissa through Kumar Raghvendra Singh andothers vs. Ganesh Chandra
Jew [(2004) 8 SCC 40]. 2004 AIR SCW 1926
Recently in Raghunath Anant Govilkar vs. State of Maharashtra and Ors. [2008 (2)
SCALE 303], having regard to the 41st Report of the Law Commission, this Court
observed : 2008 AIR SCW 1375
"24. It was in pursuance of this observation that the expression "was" came to be
employed after the expression "is" to make the need for sanction applicable even in cases
where a retired public servant is sought to be prosecuted."
It was furthermore held;
"26. The High Court, therefore, was in error in observing that sanction was not necessary
because the expression used is "was".
16. The High Court, therefore, in our opinion committed a manifest error in passing the
impugned judgment.
17. The issues raised by the appellant were jurisdictional ones. The same should have
been adverted to by the High Court.
For the reasons aforementioned, the impugned judgment cannot be sustained. It is set
aside accordingly. Appeal is allowed. No costs.
Appeal allowed.
AIR 2008 SUPREME COURT 1939 "Medicamen Biotech Ltd., M/s. v. Rubina Bose,
Drug Inspector"
(From : 2006 (4) Cal HN 727)
-2008.
M/s. Medicamen Biotech Ltd. and Anr. v. Rubina Bose, Drug Inspector.
Drugs and Cosmetics Act (23 of 1940), S.25(3), S.25(4), S.27 - DRUGS, COSMETICS
AND MAGIC REMEDIES - INHERENT POWERS - Right to get sample analysed by
Central Drugs Laboratory - Deprivation - Effect - Accused, manufacturer of Drugs -
Sample taken found sub-standard by Govt. Analyst - Accused disputing report and
requesting for test by Central Laboratory - No action taken thereon - Complaint filed just
few days before expiry of sample drug - Valuable right to get sample re-tested lost -
Complaint liable to be quashed.
Criminal P.C. (2 of 1974), S.482.
2006 (4) Cal HN 727, Reversed. (Para 10)
2001 AIR SCW 1132 : AIR 2001 SC 1303 : 2001 Cri LJ 1686 (Disting.) 4, 10
2000 AIR SCW 1985 : 2000 Cri LJ 2962 (Disting.) 4, 9
1998 AIR SCW 2240 : AIR 1998 SC 2327 : 1998 Cri LJ 3287 (Disting.) 4, 8
Arun Kumar and Rameshwar Prasad Goyal, for Appellants; B.B. Singh and Ms. Binu
Tamta (for Ms. Sushma Suri), for Respondent.
Judgement
1. HARJIT SINGH BEDI, J. :-Leave granted.
2. This appeal arises out of the following facts.
3. The accused, appellant No. 1 is a manufacturer of Enalapril Maleate tablets, a drug
which is being manufactured under licence in its factory premises. The drug was released
for sale only after its quality had been certified by an independent laboratory. One such
batch bearing No. NT 6000 was sold on 29th September, 1999 with its shelf-life upto
August 2002 and in addition to other organizations some of the drug from the batch was
supplied to the Government Medical Stores Depot, Kolkata. The Drugs Inspector, Central
Drugs Standard Control Organisation, Kolkata visited the Government Medical Stores
Depot at Belvedere, Kolkata on 14th June, 2000 and collected
@page-SC1940
samples of the drug and after dividing the sample into four equal parts, sent one portion
to the Central Drugs Laboratory, Kolkata under Clause (i), sub-section (4) of Section 23
of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as the 'Act') for
test/analysis. The sample portion of the drug was received in the laboratory at Kolkata on
23rd June, 2000. The Drugs Inspector received the test report from the Drugs Laboratory
on 6th July, 2001 declaring the drug as not conforming to the prescribed standards. A
show cause notice was issued to the appellants on 14th August 2001 on which the
appellant once again carried out an in-house test and also obtained an analysis report
from another approved laboratory. Both the reports opined that the sample satisfied the
prescribed norms. The appellant also received a show-cause notice dated 14th August,
2001/17th August, 2001 from the Ministry of Health and Welfare from the Government
Medical Stores Depot, Kolkata informing the appellant that the drug in question had been
declared sub-standard. On 28th August 2001 the appellant sent a detailed reply to the
show-cause notice to the Medical Stores Department with copies to the Drugs Inspector
disputing the report of the Government Analyst and requesting for a re-testing of the
drug. On 31st August 2001 the appellant received a letter dated 22nd August 2001 from
the Drugs Inspector once again pointing out that the sample seized was not of the
prescribed standard and also called for the comments of appellant No. 1 within 10 days.
The appellant received yet another letter dated 7th September 2001 from the Drugs
Inspector seeking certain information to which the appellant gave a reply on 13th
September 2001 giving the necessary information and also disputing the test report of the
Central Drugs Laboratory, Kolkata and requesting for re-analysis. On 26th September
2001 the appellant No. 1 received a communication from the Drugs Inspector that the test
report submitted by the Central Drugs Laboratory was conclusive evidence of the facts
stated therein under section 25 of the Act and declined to consider any other report and on
the contrary, a complaint was filed before the concerned Magistrate under section 27 of
the Act on 2nd July 2002. The Magistrate summoned the appellant and certain others for
appearance on, several dates but the summons were finally served on the appellant on 9th
May 2005. The proceedings initiated on account of the complaint were challenged before
the Calcutta High Court and a prayer for quashing was made under Section 482 of the
Criminal Procedure Code. This petition has been dismissed by the impugned order dated
19th May 2006. The learned Judge held that it would be premature to look into the matter
and to take a decision on the basis of affidavits and documents filed in Court as they were
not evidence stricto sensu. The Court also opined that from the facts of the case, it
appeared that the allegations made in the petition did indicate the commission of an
offence as they did not suffer from any "inherent absurdity so as to raise controversy in
regard to its maintainability". It also held that one portion of the sample had been given to
the accused and the necessary formalities had been complied with. It is in this situation
the matter is before us in appeal.
4
. The learned counsel for the appellants has raised several arguments in the course of the
hearing. He has pointed out that section 23(4) of the Act visualized that one portion of the
sample was to be sent to the Government Analyst for test or analysis, a second to be
produced in court, if proceedings were to be initiated and the third to be sent to the
person, if any, whose name and address have been disclosed under section 18A. It has
also been submitted that as per sub-section (4) of Section 25 of the Act unless a drug had
been tested in the Central Drugs Laboratory a person was entitled, within 28 days of the
receipt of a copy of the report from the Government Analyst, to request the Magistrate to
send for analysis the sample, which had to be filed in court, to the Director, Central Drugs
Laboratory and it appeared that this exercise had not been carried out despite the
objections raised by the appellants to the correctness of the report of the Government
Analyst. It has further been highlighted that in any event the complaint having been filed
on the 2nd July 2002, no request for re-analysis could have been effectively made as the
shelf-life expiry date of the drug was August 2002 and there was, thus, paucity of time.
The learned counsel for the respondent has, however, pointed out that as the appellant
had not made any request for sending the sample to the Central Drugs Laboratory and
had not disputed the accuracy of the report of the Government Analyst and had not stated
that 1998 AIR SCW 2240
2000 AIR SCW 1985
2001 AIR SCW 1132
@page-SC1941
it needed to adduce evidence to controvert the report, the appellant was precluded from
challenging the report of the Central Drugs Laboratory as provided by sub-section (4) of
Section 25 of the Act. Reliance for this argument has been placed on State of Haryana vs.
Brij Lal Mittal and Ors. (1998) 5 SCC 343; State of Haryana vs. Unique Farmaid (P) Ltd.
and Ors. (1999) 8 SCC 190 and Amery Pharmaceuticals and Anr. 2001 AIR vs. State of
Rajasthan (2001) 4 SCC 382.
5. As would be evident, the matter would turn on an examination of the legal provisions.
Section 23 of the Act provides the procedure for taking of samples and sub-section (4)
thereof, as already mentioned above, provides that the sample shall be divided into four
portions and be kept/disposed of in the manner laid therein including one sample to be
produced before the Magistrate. Section 25 is reproduced below :
"Section 25. Reports of Government Analysts. - (1) The Government Analyst to whom a
sample of any drug [or cosmetic] has been submitted for test or analysis under subsection
(4) of Section 23, shall deliver to the Inspector submitting it a signed report in triplicate
in the prescribed form.
(2) The Inspector on receipt thereof shall deliver one copy of the report to the person
from whom the sample was taken [and another copy to the person, if any, whose name,
address and other particulars have been disclosed under section 18-A], and shall retain
the third copy for use in any prosecution in respect of the sample.
(3) Any document purporting to be a report signed by a Government Analyst under this
Chapter shall be evidence of the facts stated therein, and such evidence shall be
conclusive unless the person from whom the sample was taken [or the person whose
name, address and other particulars have been disclosed under section 18-A] has, within
twenty-eight days of the receipt of a copy of the report, notified in writing the Inspector
or the Court before which any proceedings in respect of the sample are pending that he
intends to adduce evidence in controversion of the report.
(4) Unless the sample has already been tested or analysed in the Central Drugs
Laboratory, where a person has under sub-section(3) notified his intention of adducing
evidence in controversion of a Government Analyst's report, the Court may, of its own
motion or in its discretion at the request either of the complainant or the accused : cause
the sample of the drug [or cosmetic] produced before the Magistrate under subsection (4)
of Section 23 to be sent for test or analysis to the said Laboratory, which shall make the
test or analysis and report in writing signed by or under the authority of the Director of
the Central Drugs Laboratory the result thereof, and such report shall be conclusive
evidence of the facts stated therein.
(5) The cost of a test or analysis made by the Central Drugs Laboratory under subsection
(4) shall be paid by the complainant or accused as the Court shall direct.
6. A reading of the aforesaid provisions would reveal that they lay certain obligations as
well as provide safeguards for a person from whom a drug has been seized for analysis or
testing as Section 25(3) specifies that unless such a person controverts the correctness of
the report submitted by the Government Analyst within 28 days in writing that he intends
to adduce evidence to controvert the report of the Analyst, it would be deemed to be
conclusive evidence of the quality of the drug whereas sub-section (4) of Section 25
obliges the Magistrate on the request of the complainant or the accused or on in his own
motion to send the fourth sample which has been disputed for fresh testing to the Director
of the Central Drugs Laboratory. It is the case of the appellant that despite the fact that
the appellant had repeatedly controverted the accuracy of the report of the Government
Analyst the fourth sample had still not been sent to the Director for re-testing and
analysis. We find that the argument raised by the learned counsel for the respondent that
the appellant had never expressed a desire to controvert the report of the Drug Analyst is
not correct as is clear from the letter dated 28th August 2001 addressed to the Assistant
Director General, Government Medical Stores Depot in which it was stated as under :
"On receipt of your letter, we have got the control sample of same batch analysed from an
approved test house, namely Industrial Testing Laboratory, Delhi. The test house has
reported our control samples to be of standard quality and conforming to IP with respect
to content of Enalapril Maleate. Copy of test report No. F-405/8-01 dated 25-8-2001
@page-SC1942
enclosed.
In the light of above facts, we do not agree with the Govt. Analyst's report that the sample
is not of standard quality and request you to kindly get the sample re-tested at your end."
7. Concededly a copy of this letter was addressed to and received by the Drugs Inspector,
Kolkata. The learned counsel for the appellant has also drawn our attention to the letter
dated 13th September 2001 addressed to the Drugs Inspector again reiterating :
"We have received the sealed portion of the subject sample sent by you, but we have not
opened it yet. We sincerely hope that the Asstt. Director General (MS) will heed our
request and get the sample re-analyzed. Until we receive the result of reanalysis we will
keep your subject sample intact.
As per your directions, we are again enclosing herewith the manufacturing testing and
distribution details of the batch in question. We request you to kindly get our sample re-
analyzed at the earliest and oblige, as we do not agree with the Govt. Analyst's report."
8
. It is, therefore, evident that the appellant had not once but on at least two occasions and
within 28 days of the receipt of the show cause notice clarified that it intended to adduce
evidence to show that the test report of the Government Analyst was not correct. The
judgments cited by the learned counsel for the respondent, therefore, do not apply to the
facts of the case as they were given in the context where the dealer/manufacturer had not
expressed its desire to challengethe veracity of the report of the Drugs Analyst. In Brij
Lal Mittal's case (supra) this Court held that a person could not claim that the fourth
sample should be sent to the Central Drugs Laboratory unless the requirements of sub-
section (3) of Section 25 was complied with. In that case, despite the service of the copies
of the Analyst report the manufacturer had not informed the Inspector within the
prescribed period that he intended to adduce evidence to controvert the report. It was held
in Brij Lal Mittal's case (supra) : 1998 AIR SCW 2240, Para 5
"From a bare perusal of sub-section(3) it is manifest that the report of the Government
Analyst shall be evidence of the facts stated therein and such evidence shall be conclusive
unless the person from whom the sample was taken or the person whose name, address or
other particulars have been disclosed under Section 18-A (in this case the manufacturers)
has within 28 days of the receipt of the report notified in writing the Inspector or the
court before which any proceedings in respect of the sample are pending that he intends
to adduce evidence in controversion of the report. Sub-section (4) also makes it
abundantly clear that the right to get the sample tested by the Central Government
Laboratory (so as to make Its report override the report of the Analyst) through the court
accrues to a person accused in the case only if he had earlier notified in accordance with
sub-section (3) his Intention of adducing evidence in controversion of the report of the
Government Analyst. To put it differently, unless requirement of sub-section (3) is
complied with by the person concerned he cannot avail of his right under sub-section
(4)."
9
. In Unique Farmaids's case (supra) which was a case under the Insecticides Act which
has provisions analogous to Section 25(4) of the Act, the court found that the accused had
indeed made a request to the Inspector for sending the sample for re-testing within the
prescribed time limit and as this request had not been accepted an important right given
to an accused had been rendered ineffective on which the proceedings could be quashed.
This is what the Court had to say : 2000 AIR SCW 1985, Para 12 and 13
"It cannot be gainsaid, therefore, that the respondents in these appeals have been deprived
of their valuable right to have the sample tested from the Central Insecticides Laboratory
under sub-section (4) of Section 24 of the Act. Under sub-section (3) of Section 24 report
signed by the Insecticides Analyst shall be evidence of the facts stated therein and shall
be conclusive evidence against the accused only if the accused do not, within 28 days of
the receipt of the report, notify in writing to the Insecticide Inspector or the court before
which proceedings are pending that they intend to adduce evidence to controvert the
report. In the present cases the Insecticides Inspector was notified that the accused
intended to adduce evidence to controvert the report. By the time the matter reached the
Court, the shelf-life of the sample had already expired and no purpose would have been
served informing the Court of such an intention. The report
@page-SC1943
of the Insecticide Analyst was, therefore, not conclusive. A valuable right had been
conferred on the accused to have the sample tested from the Central Insecticides
Laboratory and in the circumstances of the case the accused have been deprived of that
right, thus, prejudicing them in their defence.
In these circumstances, the High Court was right in concluding that it will be an abuse of
the process of the court if the prosecution is continued against the respondents, the
accused persons. The High Court rightly quashed the criminal complaint. We uphold the
order of the High Court and would dismiss the appeals."
10
. We find that this Judgment helps the case of the appellant rather than that of the
respondent because in spite of two communications from the appellant that it intended to
adduce evidence to controvert the facts given in the report of the Government Analyst,
the fourth sample with the Magistrate had not been sent for re-analysis. The observations
in Amery Pharmaceuticals's case (supra) are also to the same effect. We find that the
aforesaid interpretation supports the case of the appellants inasmuch they had been
deprived of the right to have the fourth sample tested from the Central Drugs Laboratory.
It is also clear that the complaint had been filed on the 2nd July 2002 which is about a
month short of the expiry date of the drug and as such had the accused-appellant
appeared before the Magistrate even on 2nd July 2002 it would have been well nigh
impossible to get the sample tested before its expiry. In the affidavit filed to the petition
by Dr. D. Rao, Deputy Drugs Controller, and in arguments before us, it has been
repeatedly stressed that the delay in sending of the sample to the Central Drugs
Laboratory had occurred as the appellant had avoided service of summons on it till 9th
May 2005. This is begging the question. We find that there is no explanation as to why
the complaint itself had been filed about a month before the expiry of the shelf-life of the
drug and concededly the filing of the complaint had nothing to do with the appearance of
the accused in response to the; notices which were to be issued by the Court after the
complaint had been filed. Likewise, we observe that the requests for re-testing of the drug
had been made by the appellant in August/September 2001 as would be clear from the
facts already given above and there is absolutely no reason as to why the complaint could
not have been filed earlier and the fourth sample sent for re-testing well within time. We
are, therefore, of the opinion that the facts of the case suggest that the appellants have
been deprived of a valuable right under Sections 25(3) and 25(4) of the Act which must
necessitate the quashing of the proceedings against them. 2001 AIR SCW 1132
11. The appeal is allowed accordingly and the proceedings against the appellants are
quashed.
Appeal allowed.
AIR 2008 SUPREME COURT 1943 "Himanshu Singh Sabharwal v. State of M.P."
Transfer Petition (Cri.) No. 175 of 2007 with W. P. (Cri.) No. 173 of 2006, D/- 12 -3
-2008.
Himanshu Singh Sabharwal v. State of M.P. and Ors.
(A) Criminal P.C. (2 of 1974), S.4, S.311 - SUMMONS - WITNESS - CRIMINAL
TRIAL - Criminal trial - Presiding Judge most not be a spectator and mere recording
machine.
Evidence Act (1 of 1872), S.165.
If a criminal Court is to be an effective instrument in dispensing justice, the presiding
Judge must cease to be a spectator and a mere recording machine by becoming a
participant in the trial evincing intelligence, active interest and elicit all relevant materials
necessary for reaching the correct conclusion, to find out the truth, and administer justice
with fairness and impartiality both to the parties and to the community it serves. Courts
administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct
that has occurred in relation to proceedings, even if a fair trial is still possible, except at
the risk of undermining the fair name and standing of the Judges as impartial and
independent adjudicators. (Para 8)
The Courts have to take a participatory role in a trial. They are not expected to be tape
recorders to record whatever is being stated by the witnesses. S. 311 of the Code and S.
165 of the Evidence Act confer vast and wide powers on Presiding Officers of Court to
elicit all necessary materials by playing an active role in the evidence collecting process.
They have to monitor the
@page-SC1944
proceedings in aid of justice in a manner that something, which is not relevant, is not
unecessarily brought into record. Even if the prosecutor is remiss in some ways, it can
control the proceedings effectively so that ultimate objective i.e. truth is arrived at. This
becomes more necessary where the Court has reasons to believe that the prosecuting
agency or the prosecutor is not acting in the requisite manner. The Court cannot afford to
be wishfully or pretend to be blissfully ignorant or oblivious to such serious pitfalls or
dereliction of duty on the part of the prosecuting agency. The prosecutor who does not act
fairly and acts more like a counsel for the defence is a liability to the fair judicial system,
and Courts could not also play into the hands of such prosecuting agency showing
indifference or adopting an attitude of total aloofness. (Para 16)
(B) Criminal P.C. (2 of 1974), S.4 - TRIAL - WORDS AND PHRASES - WITNESS -
RIGHT TO LIFE - Fair trial - Meaning - Witnesses threatened or forced to give false
evidence - Would not result in fair trial - Failure to hear material witnesses - Is denial of
fair trial
It has to be unmistakably understood that a trial which is primarily aimed at ascertaining
truth has to be fair to all concerned. There can be no analytical, all comprehensive or
exhaustive definition of the concept of a fair trial, and it may have to be determined in
seemingly infinite variety of actual situations with the ultimate object in mind viz.
whether something that was done or said either before or at the trial deprived the quality
of fairness to a degree where a miscarriage of justice has resulted. It will not be correct to
say that it is only the accused who must be fairly dealt with. That would be turning
Nelson's eyes to the needs of the society at large and the victims or their family members
and relatives. Each one has an inbuilt right to be dealt with fairly in a criminal trial.
Denial of a fair trial is as much injustice to the accused as is to the victim and the society.
Fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor and
atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or
against the accused, the witnesses, or the cause which is being tried is eliminated. If the
witnesses get threatened or are forced to give false evidence that also would not result in
a fair trial. The failure to hear material witnesses is certainly denial of fair trial. (Para
9)
(C) Criminal P.C. (2 of 1974), S.4 - CRIMINAL TRIAL - RIGHT TO LIFE - Criminal
trial - Failure to accord fair hearing either to accused or prosecution - Violates even
minimum standards of due process of law.
Failure to accord fair hearing either to the accused or the prosecution violates even
minimum standards of due process of law. It is inherent in the concept of due process of
law, that condemnation should be rendered only after the trial in which the hearing is a
real one, not sham or a mere farce and pretence. Since the fair hearing requires an
opportunity to preserve the process, it may be vitiated and violated by an overhasty stage
managed, tailored and partisan trial. The fair trial for a criminal offence consists not only
in technical observance of the frame and forms of law, but also in recognition and just
application of its principles in substance, to find out the truth and prevent miscarriage of
justice. (Paras 12, 13)
(D) Evidence Act (1 of 1872), S.165 - Criminal P.C. (2 of 1974), S.311 - WITNESS -
SUMMONS - OBJECT OF AN ACT - Scope - Power of Court u/S.165, Evidence Act - Is
complementary to its power u/S.311 - Discretion to examine witnesses u/S.311 - Though
very wide, the very width requires corresponding caution. (Para 17)
(E) Criminal P.C. (2 of 1974), S.406 - SUPREME COURT - TRANSFER OF CASE -
CRIMINAL TRIAL - WITNESS - Criminal trial - Transfer - Professor taking rigid stand
in college union elections - Assaulted in presence of several police officials, media
persons and members of public - Death of professor - During trial eye-witnesses and even
police witnesses resiled from their earlier statements - Public Prosecutor did not cross
examine them - Petitioner, son of deceased seeking transfer of trial alleged that trial Court
also did not act as is required under law - State placed no objection in case Sessions case
is transferred to some other State - Therefore trial directed to be transferred out of State.
(Para 19)
@page-SC1945
AIR 1991 SC 1346 : 1991 Cri LJ 1521 (Ref.) 17

AIR 1979 SC 468 : 1979 Cri LJ 458 (Ref.) 10
AIR 1958 SC 309 : 1958 Cri LJ 569 (Ref.) 10
Vivek K. Tankha, Sr. Advocate, Anurag Sharma, Prashant Kumar and Arjun Harkauli
(M/s. AP and J Chambers), for Petitioner; Soli J. Sorabjee, Raju Ramachandran, Uday U.
Lalit, Sr. Advocates, Ms. Vibha Datta Makhija, Vinay Navare, Virender Parmar, Ms. Abha
R. Sharma, K.L. Janjani, Krishnan Venugopal, D. Bharat Kumar, Anand, Ms. M. Indrani,
Abhijit Sengupta, Bhupendra Yadav, Sharabh Samsheri, P.K. Kaurav, Vishwa Pal Singh
and Shibashish Misra, for Respondents.
Judgement
1. Dr. ARIJIT PASAYAT, J. :-Transfer Petition (Cri.) No. 175 of 2007 has been filed by
one Himanshu Singh Sabharwal who is the son of late Prof. H.S. Sabharwal. The
background facts as projected by the petitioner who is also the petitioner in Writ Petition
(Cri.) No. 173 of 2006 are as follows :
Late Prof. H.S. Sabharwal was a Professor in Government College, Ujjain, M.P. He was
brutally beaten up by certain persons, for taking a rigid stand in the college union
elections. Though the assaults were made in the presence of several police officials,
media persons and members of public, attempt has been made to project as if his death
was as a result of an accident. Initially, First Information Report was lodged and after
investigation charge-sheet was filed and charges have been framed against several
persons who are respondents 2 to 7 in the Transfer Petition. The trial commenced in the
Court of Sessions Judge, Ujjain being Sessions Case No. 291 of 2006. During
examination of several witnesses who were stated to be eye-witnesses, such witnesses
resiled from the statements made during investigation. There were even three police
witnesses who also resiled from their earlier statements. They are Dhara Singh (PW-32),
Sukhnandan (PW-33) and Dilip Tripathi (PW-34).
Grievance of the petitioner is that the witnesses have been coerced, threatened and
ultimately justice is a casualty. Role of the investigating officer gives ample scope to
doubt, impartiality and the sincerity of the investigating agency. Similar is the position of
the Public Prosecutor. It is also highlighted that the trial Court also did not make a serious
effort to see that justice is done. In this connection it is pointed out that Public Prosecutor
did not cross-examine the persons who had resiled from their statements made during
investigation. This according to the petitioner also shows that the trial Court did not act as
is required under law.
By order dated 11.7.2007 the proceedings in the sessions case were stayed. In pursuance
of the notice the respondent-State and accused respondents have appeared.
2. Mr. Soli J. Sorabjee, learned senior counsel appearing for the State of M.P. stated that
in the larger interest of justice and transparency, the State has no objection in case the
Sessions case is transferred to some other State. But according to him this should not be
construed to be acceptance of the allegations made by the petitioner about the impartiality
of the investigating agency or the public prosecutor or the manner of trial. According to
him, if any person is guilty he has to be punished and State never had or has any intention
to protect any guilty person. Similar stand was also adopted by Mr. U.R. Lalit, learned
senior counsel appearing for the accused respondents. To show their bona fides, it was
stated that even the police officials PWs. 32, 33 and 34 may be recalled for cross
examination even without any application in terms of Section 311 of the Code of
Criminal Procedure, 1973 (in short the 'Code') being filed.
3. Right from the inception of the judicial system it has been accepted that discovery,
vindication and establishment of truth are the main purposes underlying existence of
Courts of justice. The operating principles for a fair trial permeate the common law in
both civil and criminal contexts. Application of these principles involves a delicate
judicial balancing of competing interests in a criminal trial, the interests of the accused
and the public and to a great extent that of the victim have to be weighed not losing sight
of the public interest involved in the prosecution of persons who commit offences.
4. In 1846, in a judgment which Lord Chancellor Selborne would later describe as "one
of the ablest judgments of one of the ablest judges who ever sat in this court". Vice-
Chancellor Knight Bruce said :
@page-SC1946
"The discovery and vindication and establishment of truth are main purposes certainly of
the existence of Courts of Justice; still, for the obtaining of these objects, which, however
valuable and important, cannot be usefully pursued without moderation, cannot be either
usefully or creditably pursued unfairly or gained by unfair means, not every channel is or
ought to be open to them. The practical inefficacy of torture is not, I suppose, the most
weighty objection to that mode of examination. Truth, like all other good things, may be
loved unwisely - may be pursued too keenly - may cost too much."
The Vice-Chancellor went on to refer to paying "too great a price... for truth". This is a
formulation which has subsequently been frequently invoked, including by Sir Gerard
Brennan. On another occasion, in a joint judgment of the High Court, a more expansive
formulation of the proposition was advanced in the following terms: "The evidence has
been obtained at a price which is unacceptable having regard to prevailing community
standards."
5. Restraints on the processes for determining the truth are multi-faceted. They have
emerged in numerous different ways, at different times and affect different areas of the
conduct of legal proceedings. By the traditional common law method of induction there
has emerged in our jurisprudence the principle of a fair trial. Oliver Wendell Holmes
described the process :
"It is the merit of the common law that it decides the case first and determines the
principle afterwards . . . It is only after a series of determination on the same subject-
matter, that it becomes necessary to "reconcile the cases", as it is called, that is, by a true
induction to state the principle which has until then been obscurely felt. And this
statement is often modified more than once by new decisions before the abstracted
general rule takes its final shape. A well settled legal doctrine embodies the work of many
minds, and has been tested in form as well as substance by trained critics whose practical
interest is to resist it at every step."
6. The principle of fair trial now informs and energises many areas of the law. It is
reflected in numerous rules and practices. It is a constant, ongoing development process
continually adapted to new and changing circumstances, and exigencies of the situation -
peculiar at times and related to the nature of crime, persons involved - directly or
operating behind, social impact and societal needs and even so many powerful balancing
factors which may come in the way of administration of criminal justice system.
7. As will presently appear, the principle of a fair trial manifests itself in virtually every
aspect of our practice and procedure, including the laws of evidence. There is, however,
an overriding and, perhaps, unifying principle. As Deane, J. put it :
"It is desirable that the requirement of fairness be separately identified since it transcends
the content of more particularized legal rules and principles and provides the ultimate
rationale and touchstone of the rules and practices which the common law requires to be
observed in the administration of the substantive criminal law".
8. This Court has often emphasised that in a criminal case the fate of the proceedings
cannot always be left entirely in the hands of the parties, crimes being public wrongs in
breach and violation of public rights and duties, which affect the whole community as a
community and harmful to the society in general. The concept of fair trial entails familiar
triangulation of interests of the accused, the victim and the society and it is the
community that acts through the State and prosecuting agencies. Interests of society is not
to be treated completely with disdain and as persona non grata. Courts have always been
considered to have an over-riding duty to maintain public confidence in the
administration of justice - often referred to as the duty to vindicate and uphold the
'majesty of the law'. Due administration of justice has always been viewed as a
continuous process, not confined to determination of the particular case, protecting its
ability to function as a Court of law in the future as in the case before it. If a criminal
Court is to be an effective instrument in dispensing justice, the Presiding Judge must
cease to be a spectator and a mere recording machine by becoming a participant in the
trial evincing intelligence, active interest and elicit all relevant materials necessary for
reaching the correct conclusion, to find out the truth, and administer justice with fairness
and impartiality both to the parties and to the community it serves. Courts administering
criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has
occurred in relation
@page-SC1947
to proceedings, even if a fair trial is still possible, except at the risk of undermining the
fair name and standing of the judges as impartial and independent adjudicators.
9. The principles of rule of law and due process are closely linked with human rights
protection. Such rights can be protected effectively when a citizen has recourse to the
Courts of law. It has to be unmistakably understood that a trial which is primarily aimed
at ascertaining truth has to be fair to all concerned. There can be no analytical, all
comprehensive or exhaustive definition of the concept of a fair trial, and it may have to
be determined in seemingly infinite variety of actual situations with the ultimate object in
mind viz. whether something that was done or said either before or at the trial deprived
the quality of fairness to a degree where a miscarriage of justice has resulted. It will not
be correct to say that it is only the accused who must be fairly dealt with. That would be
turning Nelson's eyes to the needs of the society at large and the victims or their family
members and relatives. Each one has an inbuilt right to be dealt with fairly in a criminal
trial. Denial of a fair trial is as much injustice to the accused as is to the victim and the
society. Fair trial obviously would mean a trial before an impartial Judge, a fair
prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or
prejudice for or against the accused, the witnesses, or the cause which is being tried is
eliminated. If the witnesses get threatened or are forced to give false evidence that also
would not result in a fair trial. The failure to hear material witnesses is certainly denial of
fair trial.
10
. While dealing with the claims for the transfer of a case under Section 406 of the Code
from one State to another this Court in Mrs. Maneka Sanjay Gandhi and Anr. v. Ms. Rani
Jethmalani (1979 (4) SCC 167), emphasised the necessity to ensure fair trial, observing
as hereunder : AIR 1979 SC 468, Paras 2 and 5-7
"Assurance of a fair trial is the first imperative of the dispensation of justice and the
central criterion for the court to consider when a motion for transfer is made is not the
hypersensitivity or relative convenience of a party or easy availability of legal services or
like mini-grievances. Something more substantial, more compelling, more imperilling,
from the point of view of public justice and its attendant environment, is necessitous if
the Court is to exercise its power of transfer. This is the cardinal principle although the
circumstances may be myriad and vary from case to case. We have to test the petitioner's
grounds on this touchstone bearing in mind the rule that normally the complainant has the
right to choose any court having jurisdiction and the accused cannot dictate where the
case against him should be tried. Even so, the process of justice should not harass the
parties and from that angle the court may weigh the circumstances.
A more serious ground which disturbs us in more ways than one is the alleged absence of
congenial atmosphere for a fair and impartial trial. It is becoming a frequent phenomenon
in our country that court proceedings are being disturbed by rude hoodlums and unruly
crowds, jostling, jeering or cheering and disrupting the judicial hearing with menaces,
noises and worse. This tendency of toughs and street roughs to violate the serenity of
court is obstructive of the course of justice and must surely be stamped out. Likewise, the
safety of the person of an accused or complainant is an essential condition for
participation in a trial and where that is put in peril by commotion, tumult or threat on
account of pathological conditions prevalent in a particular venue, the request for a
transfer may not be dismissed summarily. It causes disquiet and concern to a court of
justice if a person seeking justice is unable to appear, present one's case, bring one's
witnesses or adduce evidence. Indeed, it is the duty of the court to assure propitious
conditions which conduce to comparative tranquillity at the trial. Turbulent conditions
putting the accused's life in danger or creating chaos inside the court hall may jettison
public justice. If this vice is peculiar to a particular place and is persistent the transfer of
the case from that place may become necessary. Likewise, if there is general
consternation or atmosphere of tension or raging masses of people in the entire region
taking sides and polluting the climate, vitiating the necessary neutrality to hold detached
judicial trial, the situation may be said to have deteriorated to such an extent as to warrant
transfer. In a decision cited by the counsel for the petitioner, Bose, J. observed :
. . . . But we do feel that good grounds for transfer from Jashpurnagar are made out
because of the bitterness of local communal
@page-SC1948
feeling and the tenseness of the atmosphere there. Public confidence in the fairness of a
trial held in such an atmosphere would be seriously undermined, particularly among
reasonable Christians all over India not because the Judge was unfair or biased but
because the machinery of justice is not geared to work in the midst of such conditions.
The calm detached atmosphere of a fair and impartial judicial trial would be wanting, and
even if justice were done it would not be "seen to be done". (G. X. Francis v. Banke
Behari Singh, AIR 1958 SC 309).
Accepting this perspective we must approach the facts of the present case without
excitement, exaggeration or eclipse of a sense of proportion. It may be true that the
petitioner attracts a crowd in Bombay. Indeed, it is true of many controversial figures in
public life that their presence in a public place gathers partisans for and against, leading
to cries and catcalls or 'jais' or 'zindabads'. Nor is it unnatural that some persons may have
acquired, for a time a certain quality of reputation, sometimes notoriety, sometimes glory,
which may make them the cynosure of popular attention when they appear in cities even
in a court. And when unkempt crowds press into a court hall it is possible that some
pushing, some nudging, some brash ogling or angry staring may occur in the rough and
tumble resulting in ruffled feelings for the victim. This is a far cry from saying that the
peace inside the court has broken down, that calm inside the court is beyond restoration,
that a tranquil atmosphere for holding the trial is beyond accomplishment or that
operational freedom for judge, parties, advocates and witnesses has creased to exist.
None of the allegations made by the petitioner, read in the pragmatic light of the counter-
averments of the respondent and understood realistically, makes the contention of the
counsel credible that a fair trial is impossible. Perhaps, there was some rough weather but
it subsided, and it was a storm in the tea cup or transient tension to exaggerate which is
unwarranted. The petitioner's case of great insecurity or molestation to the point of threat
to life is, so far as the record bears out, difficult to accept. The mere word of an interested
party is insufficient to convince us that she is in jeopardy or the court may not be able to
conduct the case under conditions of detachment, neutrality or uninterrupted progress, We
are disinclined to stampede ourselves into conceding a transfer of the case on this score,
as things stand now.
Nevertheless, we cannot view with unconcern the potentiality of a flare up and the
challenge to a fair trial, in the sense of a satisfactory participation by the accused in the
proceedings against her. Mob action may throw out of gear the wheels of the judicial
process. Engineered fury may paralyse a party's ability to present his case or participate
in the trial. If the justice system grinds to a halt through physical manoeuvres or sound
and fury of the senseless populace the rule of law runs aground. Even the most hated
human anathema has a right to be heard without the rage of ruffians or huff of toughs
being turned against him to unnerve him as party or witness or advocate. Physical
violence to a party, actual or imminent, is reprehensible when he seeks justice before a
tribunal. Manageable solutions must not sweep this Court off its feet into granting an easy
transfer but uncontrollable or perilous deterioration will surely persuade us to shift the
venue. It depends. The frequency of mobbing manoeuvres in court precincts is a bad
omen for social justice in its wider connotation. We, therefore, think it necessary to make
a few cautionary observations which will be sufficient, as we see at present, to protect the
petitioner and ensure for her a fair trial.
11. A criminal trial is a judicial examination of the issues in the case and its purpose is to
arrive at a judgment on an issue as a fact or relevant facts which may lead to the
discovery of the fact issue and obtain proof of such facts at which the prosecution and the
accused have arrived by their pleadings; the controlling question being the guilt or
innocence of the accused. Since the object is to mete out justice and to convict the guilty
and protect the innocent, the trial should be a search for the truth and not a bout over
technicalities, and must be conducted under such rules as will protect the innocent, and
punish the guilty. The proof of charge which has to be beyond reasonable doubt must
depend upon judicial evaluation of the totality of the evidence, oral and circumstantial
and not by an isolated scrutiny.
12. Failure to accord fair hearing either to the accused or the prosecution violates even
minimum standards of due process of
@page-SC1949
law. It is inherent in the concept of due process of law, that condemnation should be
rendered only after the trial in which the hearing is a real one, not sham or a mere farce
and pretence. Since the fair hearing requires an opportunity to preserve the process, it
may be vitiated and violated by an overhasty stage-managed, tailored and partisan trial.
13. The fair trial for a criminal offence consists not only in technical observance of the
frame and forms of law, but also in recognition and just application of its principles in
substance, to find out the truth and prevent miscarriage of justice.
14. "Witnesses" as Benthem said: are the eyes and ears of justice. Hence, the importance
and primacy of the quality of trial process. If the witness himself is incapacitated from
acting as eyes and ears of justice, the trial gets putrefied and paralysed, and it no longer
can constitute a fair trial. The incapacitation may be due to several factors like the
witness being not in a position for reasons beyond control to speak the truth in the Court
or due to negligence or ignorance or some corrupt collusion. Time has become ripe to act
on account of numerous experiences faced by Courts on account of frequent turning of
witnesses as hostile, either due to threats, coercion, lures and monetary considerations at
the instance of those in power, their henchmen and hirelings, political clouts and
patronage and in-numerable other corrupt practices ingenuously adopted to smoother and
stifle truth and realities coming out to surface rendering truth and justice, to become
ultimate casualties. Broader public and societal interests require that the victims of the
crime who are not ordinarily parties to prosecution and the interests of State represented
by their prosecuting agencies do not suffer even in slow process but irreversibly and
irretrievably, which if allowed would undermine and destroy public confidence in the
administration of justice, which may ultimately pave way for anarchy, oppression and
injustice resulting in complete breakdown and collapse of the edifice of rule of law,
enshrined and jealously guarded and protected by the Constitution. There comes the need
for protecting the witness. Time has come when serious and undiluted thoughts are to be
bestowed for protecting witnesses so that ultimate truth is presented before the Court and
justice triumphs and the trial is not reduced to mockery. The State has a definite role to
play in protecting the witnesses, to start with at least in sensitive cases involving those in
power, who has political patronage and could wield muscle and money power, to avert
trial getting tainted and derailed and truth becoming a casualty. As a protector of its
citizens it has to ensure that during a trial in Court the witness could safely depose truth
without any fear of being haunted by those against whom he has deposed. Some
legislative enactments like the Terrorist and Disruptive Activities (Prevention) Act, 1987
(in short the 'TADA Act') have taken note of the reluctance shown by witnesses to depose
against dangerous criminals-terrorists. In a milder form also the reluctance and the
hesitation of witnesses to depose against people with muscle power, money power or
political power has become the order of the day. If ultimately truth is to be arrived at, the
eyes and ears of justice have to be protected so that the interests of justice do not get
incapacitated in the sense of making the proceedings before Courts mere mock trials as
are usually seen in movies.
15. Legislative measures to emphasise prohibition against tampering with witness, victim
or informant have become the imminent and inevitable need of the day. Conducts which
illegitimately affect the presentation of evidence in proceedings before the Courts have to
be seriously and sternly dealt with. There should not be any undue anxiety to only protect
the interest of the accused. That would be unfair as noted above to the needs of the
society. On the contrary, the efforts should be to ensure fair trial where the accused and
the prosecution both get a fair deal. Public interest in the proper administration of justice
must be given as much importance if not more, as the interests of the individual accused.
In this courts have a vital role to play.
16. The Courts have to take a participatory role in a trial. They are not expected to be tape
recorders to record whatever is being stated by the witnesses. Section 311 of the Code
and Section 165 of the Evidence Act confer vast and wide powers on Presiding Officers
of Court to elicit all necessary materials by playing an active role in the evidence
collecting process. They have to monitor the proceedings in aid of justice in a manner
that something, which is not relevant, is not unnecessarily brought into
@page-SC1950
record. Even if the prosecutor is remiss in some ways, it can control the proceedings
effectively so that ultimate objective i.e. truth is arrived at. This becomes more necessary
where the Court has reasons to believe that the prosecuting agency or the prosecutor is
not acting in the requisite manner. The Court cannot afford to be wishfully or pretend to
be blissfully ignorant or oblivious to such serious pitfalls or dereliction of duty on the
part of the prosecuting agency. The prosecutor who does not act fairly and acts more like
a counsel for the defence is a liability to the fair judicial system, and Courts could not
also play into the hands of such prosecuting agency showing indifference or adopting an
attitude of total aloofness.
17
. The power of the Court under Section 165 of the Evidence Act is in a way
complementary to its power under Section 311 of the Code. The section consists of two
parts i.e (i) giving a discretion to the Court to examine the witness at any stage and (ii)
the mandatory portion which compels the Court to examine a witness if his evidence
appears to be essential to the just decision of the Court. Though the discretion given to
the Court is very wide, the very width requires a corresponding caution. In Mohan Lal v.
Union ofIndia (1991 Supp (1) SCC 271) this Court has observed, while considering the
scope and ambit of Section 311, that the very usage of the word such as, 'any Court' 'at
any stage', or 'any enquiry or trial or other proceedings' 'any person' and 'any such person'
clearly spells out that the Section has expressed in the widest possible terms and do not
limit the discretion of the Court in any way. However, as noted above, the very width
requires a corresponding caution that the discretionary powers should be invoked as the
exigencies of justice require and exercised judicially with circumspection and
consistently with the provisions of the Code. The second part of the section does not
allow any discretion but obligates and binds the Court to take necessary steps if thefresh
evidence to be obtained is essential to the just decision of the case - 'essential', to an
active and alert mind and not to one which is bent to abandon orabdicate. Object of the
Section is to enable the Court to arrive at the truth irrespective of the fact that the
prosecution or the defence has failed to produce some evidence which is necessary for a
just and proper disposal of the case. The power is exercised and the evidence is examined
neither to help the prosecution nor the defence, if the Court feels that there is necessity to
act in terms of Section 311 but only to subserve the cause of justice and public interest. It
is done with an object of getting the evidence in aid of a just decision and to uphold the
truth. AIR 1991 SC 1346
18
. We are echoing the view succinctly stated in Zahira Habibulla H. Sheika and Anr. v.
State of Gujarat and Ors. (2004 (4) SCC 158). 2004 AIR SCW 2325
19. We appreciate the fair stand of the State as presented by Mr. Sorabjee and learned
counsel for the accused persons. Without, therefore, examining the correctness of the
allegations made, we direct that the case in question i.e. Sessions Case No. 291 of 2006
pending in the Court of Sessions Judge, Ujjain be transferred to the Court of Sessions
Judge, Nagpur, Maharashtra. It shall be open to the learned Sessions Judge to either deal
with the case himself or to allot it to an appropriate Court. The trial will commence from
the stage at which it was when the order of stay was passed by this Court. The petitioner
who is the son of the deceased in the peculiar facts of the case is permitted to suggest two
names to function as public prosecutor. Similarly, two names shall be given by the
respondent-State. It shall be for the learned Sessions Judge, Nagpur to appoint a public
prosecutor from the names to be suggested. The fees and other expenses of the public
prosecutor shall be borne by the State of M.P. It shall be open to the public prosecutor to
be appointed to seek recall of any witness already examined in terms of Section 311 of
Code. This shall be in addition to PWs. 32, 33 and 34 about whom directions have been
given earlier in this order.
20. The Transfer Petition is accordingly disposed of. In view of the orders passed in T.P.
(Crl.) 175 of 2007, no further order is necessary to be passed in W.P.(Cri.) 173 of 2006
and same is accordingly disposed of.
Order accordingly.
@page-SC1951
AIR 2008 SUPREME COURT 1951 "Manipal Academy of Higher Education v.
Provident Fund Commissioner"
(From : Karnataka)*
Civil Appeal No. 1832 with 2535, 2536, 2539-2541 of 2004, D/- 12 -3 -2008.
Manipal Academy of Higher Education v. Provident Fund Commissioner.
(A) Employees' Provident Funds and Miscellaneous Provisions Act (19 of 1952), S.2(b) -
PROVIDENT FUND - 'Basic Wages' - Does not include leave encashment - Principle of
Universality applicable to determination of basic wages.
2004 Lab IC 943 (Kant), Reversed.
Term 'basic wages' in S. 2(b) does not include leave encashment. The term 'basic wage'
which includes all emoluments which are earned by an employee while on duty or on
leave or on holidays with wages in accordance with the terms of the contract of
employment can only mean weekly holidays, national holidays and festival holidays etc.
In many cases the employees do not take leave and encash it at the time of retirement or
same is encashed after his death which can be said to be uncertainties and contingencies.
Though provisions have been made for the employer for such contingencies unless the
contingency of encashing the leave is there, the question of actual payment to the
workman does not take place. The amount of contribution cannot be based on different
contingencies and uncertainties. The test is one of universality. In the case of encashment
of leave the option may be available to all the employees but some may avail and some
may not avail. That does not satisfy the test of universality.
2004 Lab IC 943 (Kant), Reversed. (Paras 11, 12)
(B) INTERPRETATION OF STATUTES - Interpretation of Statutes - Beneficial
legislation - Concept of liberal interpretation - Relevant only when two views are
possible. (Para 13)
2001 AIR SCW 3202 : AIR 2001 SC 3465 : 2001 Lab IC 3300 (Foll.) 11, 12
1995 Lab IC 775 (Bom) 3
AIR 1963 SC 1474 (Ref.) 3, 4, 6, 7, 10, 12
AIR 1963 SC 1480 (Ref.) 3, 7
Dr. Rajeev Dhavan, Sr. Advocate, Lakshmi Raman Singh, for appellant; Ashok Bhan, Ms.
Kiran Bhardwaj, A. Tarique, B. Krishna Prasad, D.S. Mahra, for Respondent.
* Writ Appeal No. 7466 of 2000, D/- 14-10-2003, reported in 2004 Lab IC 943: 2004
AIR Kant HCR 631.
Judgement
Dr. ARIJIT PASAYAT, J. :- In all these appeals common points of law are involved and
therefore they are disposed of by a common judgment.
2. The dispute in each case is whether the amount received by encashing the earned leave
is a part of "basic wage" under Section 2(b) of the Employees' Provident Fund and
Miscellaneous Provisions Act, 1952 (in short the 'Act') requiring pro rata employer's
contribution. In each case the Regional Provident Fund Commissioner (in short the
'Commissioner') held that the amount received on encashment of earned leave has to be
reckoned for the purpose of Section 2(b) of the Act. Accordingly, demands were raised.
Appeal was preferred before the Employees Provident Fund Appellate Tribunal (in short
the 'Tribunal') which held that it is not a part of basic wages. However, it was observed
that a different view was taken by the Bombay High Court and, therefore, the respondent
in the appeals i.e. the Commissioner should take up the matter before the Karnataka High
Court. Accordingly, Writ Petitions were filed before the Karnataka High Court. A learned
Single Judge allowed the Writ Petitions and set aside the impugned orders. The present
appellant preferred Writ Appeals before the Karnataka High Court which came to be
dismissed by the common impugned judgment.
3
. Learned counsel for the appellant pointed out that the impugned judgment cannot be
sustained as it merely followed the judgment of the Bombay High Court in Hindustan
Lever Employees' Union v. Regional Provident Fund Commissioner and Anr. (1995 (2)
LLJ 279). It is pointed out that different view has been taken by the Madras High Court
in Thiru Arooran Sugar Ltd. and Ors. v. Assistant Provident Fund Commissioner,
Employees Provident Funds Organisation and connected cases disposed of by judgment
dated 12.10.2007. It is submitted that the controversy was settled long back in Bridge and
Roof Co. (India) Ltd. v. Union of India (1963 (2) SCR 978) which was followed in Jay
Engineering Works Ltd. and Ors. v. 1995 Lab IC 775
AIR 1963 SC 1474
AIR 1963 SC 1480
@page-SC1952
Union of India and Ors. (1963 (3) SCR 995); and the concept of beneficial legislation is
misplaced philanthropy where the statutes and principles underlying it are clear and the
question is no longer res integra.
4. Learned counsel for the respondent on the other hand submitted that even applying
Bridge Roof's case (supra) the view taken by the Bombay High Court and the Karnataka
High Court in the present impugned judgment reflects the correct position in law.
5. Sections 2(b) and 6 of the Act read as follows :
"2(b) "Basic wages" means all emoluments which are earned by an employee while on
duty or on leave or on holidays with wages in either case in accordance with the terms of
the contract of employment and which are paid or payable in cash to him, but does not
include -
(i) the cash value of any food concession;
(ii) any dearness allowance (that is to say, all cash payments by whatever name called
paid to any employee on account of a rise in the cost of living), house rent allowance,
overtime allowance, bonus, commission or any other similar allowance payable to the
employee in respect of his employment or of work done in such employment;
(iii) any presents made by the employer.
6. Contributions and matters which may be provided for in the Scheme - The contribution
which shall be paid by the employer to the Fund shall eight and one-third per cent of the
basic wages dearness allowances and retaining allowance (if any) for the time being
payable to each of the employees (whether employed by him directly or by or through a
contractor) and the employees' contribution shall be equal to the contribution payable by
the employer in respect of him and may if any employee so desires and if the Scheme
makes provision therefor be an amount not exceeding eight and one-third per cent of his
basic wages dearness allowances and retaining allowance (if any) subject to the condition
that the employer shall not be under an obligation to pay any contribution over and above
his contribution payable under this section;
Provided that in its application to any establishment or class of establishments which the
Central Government after making such inquiry as it deems fit may by notification in the
Official Gazette specify this section shall be subject to the modification that for the words
"eight and one-third per cent" at both the places where they occur the words "ten per
cent" shall be substituted :
Provided further that where the amount of any contribution payable under this Act
involves a fraction of a rupee the Scheme may provide for the rounding off of such
fraction to the nearest rupee half of a rupee or quarter to a rupee.
Explanation 1 : For the purposes of this section dearness allowance shall be deemed to
include also the cash value of any food concession allowed to the employee.
Explanation 2 : For the purposes of this section retaining allowance means an allowance
payable for the time being to an employee of any factory or other establishment during
any period in which the establishment is not working for retaining his services."
6
. In Bridge Roofs case (supra) it was inter aliaobserved as follows : AIR 1963 SC 1474,
Paras 7 and 8
"8. The main question therefore that falls for decision is as to which of these two rival
contentions is in consonance with S. 2(b). There is no doubt that "basic wages" as defined
therein means all emoluments which are earned by an employee while on duty or on
leave with wages in accordance with the terms of the contract of employment and which
are paid or payable in cash. If there were no exceptions to this definition, there would
have been no difficulty in holding that production bonus whatever be its nature would be
included within these terms. The difficulty, however, arises because the definition also
provides that certain things will not be included in the term "basic wages", and these are
contained in three clauses. The first clause mentions the cash value of any food
concession while the third clause mentions that presents made by the employer. The fact
that the exceptions contain even presents made by the employer shows that though the
definition mentions all emoluments which are earned in accordance with the terms of the
contract of employment, care was taken to exclude presents which would ordinarily not
be earned in accordance with the terms of the contract of employment. Similarly, though
the definition includes "all emoluments" which are
@page-SC1953
paid or payable in cash, the exception excludes the cash value of any food concession,
which in any case was not payable in cash. The exceptions therefore do not seem to
follow any logical pattern which would be in consonance with the main definition.
9. Then we come to clause (ii). It excludes dearness allowance, house-rent allowance,
overtime allowance, bonus, commission or any other similar allowance payable to the
employee in respect of his employment or of work done in such employment. This
exception suggests that even though the main part of the definition includes all
emoluments which are earned in accordance with the terms of the contract of
employment, certain payments which are in fact the price of labour and earned in
accordance with the terms of the contract of employment are excluded from the main part
of the definition of "basic wages". It is undeniable that the exceptions contained in clause
(ii) refer to payments which are earned by an employee in accordance with the terms of
his contract of employment. It was admitted by counsel on both sides before us that it
was difficult to find any one basis for the exceptions contained in the three clauses. It is
clear however from clause (ii) that from the definition of the word "basic wages" certain
earnings were excluded, though they must be earned by employees in accordance with
the terms of the contract of employment. Having excluded "dearness allowance" from the
definition of "basic wages", S. 6 then provides for inclusion of dearness allowance for
purposes of contribution. But that is clearly the result of the specific provision in S. 6
which lays down that contribution shall be 6-1/4 per centum of the basic wages, dearness
allowance and retaining allowance (if any). We must therefore try to discover some basis
for the exclusion in clause (ii) as also the inclusion of dearness allowance and retaining
allowance (if any) in S. 6. It seems that the basis of inclusion in S. 6 and exclusion in
clause (ii) is that whatever is payable in all concerns and is earned by all permanent
employees is included for the purpose, of contribution under S. 6, but whatever is not
payable by all concerns or may not be earned by all employees of a concern is excluded
for the purpose of contribution. Dearness allowance (for examples is payable in all
concerns either as an addition to basic wages or as a part of consolidated wages where a
concern does not have separate dearness allowance and basic wages. Similarly, retaining
allowance is payable to all permanent employees in all seasonal factories like sugar
factories and is therefore included in S. 6; but house-rent allowance is not paid in many
concerns and sometimes in the same concern it is paid to some employees but not to
others, for the theory is that house-rent is included in the payment of basic wages plus
dearness allowance or consolidated wages. Therefore, house-rent allowance which may
not be payable to all employees of a concern and which is certainly not paid by all
concern is taken out of the definition of "basic wages", even though the basis of payment
of house-rent allowance where it is paid is the contract of employment. Similarly,
overtime allowance though it is generally in force in all concerns is not earned by all
employees of a concern. It is also earned in accordance with the terms of the contract of
employment; but because it may not be earned by all employees of a concern it is
excluded from "basic wages". Similarly, commission or any other similar allowance is
excluded from the definition of "basic wages" for commission and other allowances are
not necessarily to be found in all concerns; nor are they necessarily earned by all
employees of the same concern, though where they exist they are earned in accordance
with the terms of the contract of employment. It seems therefore that the basis for the
exclusion in clause (ii) of the exceptions in S. 2(b) is that all that is not earned in all
concerns or by all employees of concern is excluded from basic wages. To this the
exclusion of dearness allowance in clause (ii) is an exception. But that exception has been
corrected by including dearness allowance in S. 6 for the purpose of contribution.
Dearness allowance which is an exception in the definition of "basic wages", is included
for the purpose of contribution by S. 6 and the real exceptions therefore in clause (ii) are
the other exceptions beside dearness allowance, which has been included through S. 6.
7
. Similarly in Jay Engineering's case (supra) it was observed as follows : AIR 1963 SC
1480, Paras 8 and 9
"9. Finally, it was urged that even if the payment for production between the quota and
the norm is not production bonus which can be taken out of definition of basic wages in
the Act, it should be treated as payment in the nature of "other similar allowance"
@page-SC1954
appearing in S. 2(b)(ii). We are of opinion that this payment for work done between the
quota and the norm cannot be treated as any "other similar allowance". The allowances
mentioned in the relevant clause are dearness allowance, house-rent allowance, overtime
allowance, bonus, and commission. Any "other similar allowance", must be of the same
kind. The payment in this case for production between the quota and the norm has
nothing of the nature of an allowance, it is a straight payment for the daily work and must
be included in the words defining basic wage i.e., "all emoluments which are earned by
an employee while on duty or on leave with wages in accordance with terms of the
contract of employment."
10. In the view we have taken of the scheme in this case, the petition succeeds partly. We
direct that the petition of the payment which is made by the petitioner for production
above the "norm" would be production bonus and would be covered by the judgment of
this Court in Bridge and Roof Company, but that portion of the payment which is made
by petitioner for production up to the quota as well as production between the "quota"
and the "norm" is basic wage within the meaning ofthat term in the Act. The petition is
therefore partially allowed as indicated above. In the circumstances we pass no order as
to costs." AIR 1963 SC 1474
8. It is to be noted that in the case before the Bombay High Court the factual scenario was
somewhat peculiar. There the employer was including the amount of leave encashment as
emoluments for the purpose of calculating provident fund dues from the employer as well
as employee's contribution. When the Employees' Union took up the issue to the
Commissioner it was informed that the provision does not provide for deduction of
provident fund on leave encashment.
9. On the strength of the letter dated 3-7-1991 of the Commissioner, Hindustan Lever
Ltd. decided to make provision for deduction. It was this direction of the department
which was challenged by the Union. In this context the High Court has held that the
Commissioner's letter/circular was illegal and leave encashment dues should be included
for provident fund contribution. In fact it was the understanding of the parties over the
period that leave encashment will be included in the wages.
10
. The basic principles as laid down in Bridge Roof's case (supra) on a combined reading
of Sections 2(b) and 6 are as follows : AIR 1963 SC 1474
(a) Where the wage is universally, necessarily and ordinarily paid to all across the board
such emoluments are basic wages.
(b) Where the payment is available to be specially paid to those who avail of the
opportunity is not basic wages. By way of example it was held that overtime allowance,
though it is generally in force in all concerns is not earned by all employees of a concern.
It is also earned in accordance with the terms of the contract of employment but because
it may not be earned by all employees of a concern, it is excluded from basic wages.
(c) Conversely, any payment by way of a special incentive or work is not basic wages.
11
. In TI Cycles of India, Ambattur v. M.K. Gurumani and Ors. (2001 (7) SCC 204) it was
held that incentive wages paid in respect of extra work done is to be excluded from the
basic wage as they have a direct nexus and linkage with the amount of extra output. It is
to be noted that any amount of contribution cannot be based on different contingencies
and uncertainties. The test is one of universality. In the case of encashment of leave the
option may be available to all the employees but some may avail and some may not avail.
That does not satisfy the test of universality. As observed in Daily Partap v. Regional
Provident Fund Commissioner (1998 (8) SCC 90) the test is uniform treatment or nexus
under-dependent on individual work. 2001 AIR SCW 3202
1999 AIR SCW 1721
12
. The term 'basic wage' which includes all emoluments which are earned by an employee
while on duty or on leave or on holidays with wages in accordance with the terms of the
contract of employment can only mean weekly holidays, national holidays and festival
holidays etc. In many cases the employees do not take leave and encash it at the time of
retirement or same is encased after his death which can be said to be uncertainties and
contingencies. Though provisions have been made for the employer for such
contingencies unless the contingency of encashing the leave is there, the question of
actual payment to the workman does not take place. In view of the decision of this Court
in Bridge Roof's case (supra) and TI Cycles's case AIR 1968 SC 1474
2001 AIR SCW 3202
@page-SC1955
(supra) the inevitable conclusion is that basic wage was never intended to include
amounts received for leave encashment.
13. Though the statute in question is a beneficial one, the concept of beneficial legislation
becomes relevant only when two views are possible.
14. The appeals deserve to be allowed which we direct. But if any payment has already
been made it can be adjusted for future liabilities and there shall not be any refund claim
since the fund is running one. There will be no order as to costs.
Appeal allowed.
AIR 2008 SUPREME COURT 1955 "Sita Ram v. Moti Lal Nehru Farmers Training
Institute"
(From : 2005 (5) All WC 4970)
-2008.
Sita Ram and Ors. v. Moti Lal Nehru Farmers Training Institute.
(A) U.P. Industrial Disputes Act (28 of 1947), S.6N - INDUSTRIAL DISPUTE -
RETRENCHMENT - Retrenchment - Continuous working for 240 days - Burden of
proof - Is on workman. (Para 12)
(B) Industrial Disputes Act (14 of 1947), S.25F - U.P. Industrial Disputes Act (28 of
1947), S.6N - INDUSTRIAL DISPUTE - RETRENCHMENT - Retrenchment -
Provisions of S.25F of Central Act - Not para materia with S.6N of U.P. Act. (Para
13)
(C) U.P. Industrial Disputes Act (28 of 1947), S.6N - INDUSTRIAL DISPUTE -
TERMINATION OF SERVICE - DAILY-WAGE WORKERS - CHARITABLE TRUST -
Termination of service - Daily wagers appointed by Charitable Trust - Plea of continuous
working for 240 days raised - Workman producing some documents to show that they
were working for two years - Cannot be expected to produce pay slips when no pay slip
were issued - Trust withholding best evidence available with them - Award holding
termination to be in violation of S.6N - Does not suffer from an error of law - Not based
on surmises and conjectares. (Paras 14, 15, 16)
(D) U.P. Industrial Disputes Act (28 of 1947), S.6N, S.5C - INDUSTRIAL DISPUTE -
TERMINATION OF SERVICE - REINSTATEMENT - DAILY-WAGE WORKERS -
Termination of service - Relief of reinstatement - Daily wagers appointed by Charitable
Trust - Appointment made to carry on certain work undertaken by Trust - Trust
subsequently discontinuing that work - Granting relief of reinstatement - Not proper -
Trust directed to pay compensation to workman. (Paras 18, 19, 21)
2007 AIR SCW 2357 : 2007 Lab IC 1955 (Rel. on) 20
2007 AIR SCW 5527 : AIR 2007 SC 3056 (Ref.) 11
2007 AIR SCW 6375 : 2007 (6) ALJ 620 (Ref.) 11
2007 AIR SCW 7305 : 2008 (1) ALJ 245 (Rel. on) 20
2006 AIR SCW 5963 : 2007 Lab IC 274 (Rel. on) 20
2005 AIR SCW 301 : AIR 2005 SC 660 (Ref.) 11
1962 (1) Lab LJ 409 (SC) (Ref.) 11
R.R. Kumar, Bharat Sangal, for Appellants; L.N. Rao, Sr. Advocate, Pratap Venugopal,
Ms. Surekha Raman, Dileep Poolakkot, Ms. Anshul Singh (M/s. K.J. John and Co.) for
Respondent.
Judgement
1. S. B. SINHA, J.:- Leave granted.
2. Respondent is a research institute. It imparts training to farmers for facilitating
improved agricultural production. For imparting training, fees is not charged from the
trainees. The trainees are also provided free lodging and boarding. Respondent carries out
its function under a deed of trust. It is a subsidiary to Indian Farmers Fertilizers
Corporation. Its object is charitable. However, it is stated that the respondent-institute
also undertaking Poultry Farming, Pisciculture, Cow-Shelter, Dairy Farming, Plantation,
Bee-keeping work etc. These jobs are undertaken by way of various projects. Daily
wagers are appointed for the said purposes. The employment of daily wagers is a
needbased one.
3. Appellants herein and in particular, some of them, claimed to have been working with
the respondent-institute for a long time. Their services were not being taken from 28-12-
1996. They raised an industrial dispute. The State of U.P. in exercise of its power under
the U.P. Industrial Disputes Act, 1947 referred the dispute for adjudication
@page-SC1956
before the Presiding Officer, Labour Court, U.P., Allahabad.
4. Before the learned Labour Court, both parties adduced their respective evidences.
Some documents to show that the appellants have been working for a long time were
called for from the respondents. Respondent produced only Attendance Register for
December, 1996 and attendance sheet for the year 1997. Appellants examined themselves
before the Labour Court. They brought on records various documents to show that even
Provident Fund used to be deducted from their salary. They produced provident fund
receipts for the years 1992-93 and 1994-95.
One Kamla Pati Dubey was examined on behalf of the respondent. He joined the
respondent-institution in the year 1988. A statement was made by him that the appellant
had not worked for 240 days. He, however, in the cross-examination admitted that Muster
Roll (Exhibit E-3) bears the signatures of gardener Sant Ram. He also admitted that bee-
farming used to be undertaken by the respondents.
The Labour Court, having regard to the fact that the respondent despite having been
called upon to produce relevant records failed/neglected to do so, drew an adverse
inference against it. It, furthermore, took into consideration the oral as also the
documentary evidence adduced on behalf of the appellants to hold that they have worked
for a period of more than 240 days. As the condition precedent for terminating the
services of the appellants, as envisaged under Section 6N of the U.P. Industrial Disputes
Act, 1947 had not been complied with, the said orders of termination of services were
held to be bad in law. Appellants, therefore, directed to be reinstated with 25 per cent of
the back wages by an Award dated 12.4.2002.
5. Respondent having aggrieved by and dissatisfied therewith filed a Writ Petition before
the Allahabad High Court. By reason of the impugned judgment, the High Court set aside
the award of the Labour Court inter alia opining that the burden of proof had wrongly
been placed on the respondent, It was held :
"It has consistently now been held by the court that the burden of proof is on the
employee who claims relief. In spite of having been granted opportunity to discharge
their burden of proof by secondary evidence, it was not discharged by them. It is admitted
to the parties that the workmen were daily wagers. It is the nature of appointment that is
of essence and not the mode of payment........"
It was furthermore, observed that the Award was based on surmises and conjectures.
6. Appellants, are, thus before us.
A limited notice, as to why the respondent should not be asked to pay adequate
compensation to the appellants, was issued by this Court.
7. Mr. R. R. Kumar, the learned counsel appearing on behalf of the appellant would
submit that the High Court committed a serious error insofar as it failed to take into
consideration that before the learned Labour Court, appellants have discharged their ini
tial burden and as the respondents despite having been asked to produce the relevant
records, failed to do so, the onus of proof was rightly shifted to them. It was urged that
the provisions of Section 6-N of the U.P. Industrial Disputes Act, 1947 vis-a-vis Section
25-F of the Industrial Disputes Act, are not in materia inasmuch as in the former case, it
was not necessary to work for 240 days in 12 calendar months preceding the date of
alleged termination.
The High Court, it was contended, could not and did not consider the evidences adduced
on behalf of the parties and wrongly exercised its jurisdiction under Article 226 of the
Constitution of India. It was pointed out that the provident fund receipts being Exhibits
W-1 to 24 had even not been controverted by the respondents.
8. Mr. L. N. Rao, the learned senior counsel appearing on behalf of the respondent-
Institute, on the other hand urged that the Labour Court had wrongly placed the burden of
proof on the respondent as the entire burden of proof to establish that they had worked for
more than 240 days in a year was on the appellants and, thus, there was no requirement to
produce the records. In any event, it was submitted, the Labour Court having not drawn
any adverse inference against the respondent and having allowed the appellant to lead
secondary evidence, the judgment of the High Court cannot be faulted with.
9. Indisputably, the services of the appellants were terminated as far back on
@page-SC1957
28-12-1996. The reference was made in the year 1998. It furthermore appears from the
evidence of EW-1 that the respondent had stopped undertaking the job of bee farming.
10. Although a contention had been raised by the respondent that it is not an "industry"
within the meaning of Section 2(k) of the U.P. Industrial Disputes Act, 1947, but the said
point having been given up before the High Court, we need not deal therewith.
11. The question as to whether the burden of proof was on the employer or on the
workman is no longer res integra. It would be on the workman to prove that he had
worked for two hundred and forty days in a year. However, where both parties have
adduced evidences, in most of the cases, the question would be academic.
In DGM Oil and Natural Gas Corporation Ltd. and another vs. Ilias Abdulrehman [(2005)
2 SCC 183], it was held : 2005 AIR SCW 301
"8. A perusal of the evidence adduced by the workman himself shows that he went in
search of employment to different places and whenever there was a temporary
employment available in different departments of the appellant-Corporation, be it field
work or the work in the Chemistry Department, he accepted the employment and worked
in these departments not in one place alone but at different places like Baroda and
Mehsana. It has come on record that the management did try to accommodate the
appellant in a permanent job but could not do so because of lack of qualifications. In such
circumstances we think that the Industrial Tribunal was justified in coming to the
conclusion that the number of days of work put in by the respondent in broken periods,
cannot be taken as a continuous employment for the purpose of Section 25-F of the Act,
as has been held by this Court in the case of Indian Cable Co. Ltd. We are aware that the
judgment of this Court in Indian Cable Co. Ltd. was rendered in the context of Section
25-G of the Act, still we are of the opinion that the law for the purpose of counting the
days of work in different departments controlled by an apex corporation will be governed
by the principles laid down in the judgment of Indian Cable Co. Ltd. and the Industrial
Tribunal was justified in dismissing the reference."
See also Range Forest Officer vs. S.T. Hadimani [(2002) 3 SCC 25, para 3); R.M. Yellatti
vs. Asstt. Executive Engineer [(2006) 1 SCC 106); State of Maharashtra vs. Dattatraya
Digamber Birajdar [(2007) 10 SCALE 442, para 6]; Ganga Kisan Chini Mills Ltd. vs.
Jaivir Singh [(2007) 11 Scale 409, para 12]. 2002 AIR SCW 909
2005 AIR SCW 6103
2007 AIR SCW 5527
2007 AIR SCW 6375
12. Although at one point of time, the burden of proof used to be placed on the employer,
in view of a catena of recent decisions, it must be held that the burden of proof is on the
workman to show that he has completed 240 days in a year.
13. We are, however, not oblivious of the distinction between the provisions of the
Industrial Disputes Act, 1947 and U.P. Industrial Disputes Act, 1947 inasmuch as whereas
in the former, the workman has to prove that he has worked for more than 240 days in the
preceding 12 months of the date of his termination, there is no such requirement in the
case of latter.
14. Appellants have brought on records at least some documentary evidences to show that
they have been working at least for two years. Even provident fund had been deducted
from their wages. Each of the appellant examined himself before the Labour Court. They
had called for the requisite documents. The documents produced before the Labour Court
were wholly irrelevant, as the services of the workman were terminated in December,
1996 itself. What was called for from them was the documents for the period during
which the appellants claimed to have been working with the respondent.
15. It furthermore appears from the records that, the wages were being paid in a wage-
sheet and no pay slip used to be issued therefor. Appellants, thus, were not expected to
produce any pay slip. No exception therefore, can be taken to the findings of the Labour
Court.
16. It is evident that the respondents have withheld the best evidence. The wage sheet, the
provident fund records and other documents were in their possession. They were
statutorily required to maintain some documents. It may be true that the learned Labour
Court did not draw any adverse inference expressly, but whether such an adverse
inference has been drawn or not must
@page-SC1958
be considered upon reading the entire Award. The High Court, in our opinion, has
wrongly opined that the award suffers from an error of law and was otherwise based on
surmises and conjectures.
17. The question, which, however, falls for our consideration is as to whether the Labour
Court was justified in awarding reinstatement of the appellants in service.
18. Keeping in view the period during which the services were rendered by the
respondent; the fact that the respondent had stopped its operation of bee-farming, and the
services of the appellants were terminated in December, 1996, we are of the opinion that
it is not a fit case where the appellants could have been directed to be re-instated in
service.
19. Indisputably, the Industrial Court, exercises a discretionary jurisdiction, but such
discretion is required to be exercised judiciously. Relevant factors therefor, were required
to be taken into consideration; the nature of appointment, the period of appointment, the
availability of the job etc. should weigh with the court for determination of such an issue.
20
. This Court in a large number of decisions opined that payment of adequate amount of
compensation in place of a direction to be reinstated in service in cases of this nature
would subserve the ends of justice. [See Jaipur Development Authority vs. Ramsahai and
Anr. [(2006) 11 SCC 684]; Madhya Pradesh Administration vs. Tribhuban [2007 (5)
Scale 397] and Uttaranchal Forest Development Corporation vs. M.C. Joshi [2007 (3)
Scale 545].} 2006 AIR SCW 5963
2007 AIR SCW 2357
2007 AIR SCW 7305
21. Having regard to the facts and circumstances of this case, we are of the opinion that
payment of a sum of Rs. 1,00,000/- to each of the appellant, would meet the ends of
justice. This appeal is allowed to the aforementioned extent. In the facts and
circumstances of this case, there shall be no order as to costs.
Order accordingly.
AIR 2008 SUPREME COURT 1958 "D. G., Railway Protection Force v. K. Raghuram
Babu"
(From : 2001 (5) Andh LT 543)
D.G., Railway Protection Force and Ors. v. K. Raghuram Babu.
Railway Protection Force Act (23 of 1957), S.9 - Railway Protection Force Rules (1987),
R.158(3) - Constitution of India, Art.14 - RAILWAY PROTECTION FORCE -
EQUALITY - DEPARTMENTAL ENQUIRY - Departmental inquiry - Right of
representation through counsel or friend - Not vested right of delinquent - R.158(3)
giving limited right of representation - Not invalid.
2001 (5) Andh LT 543, Reversed.
There is no vested or absolute right in any charge-sheeted employee to representation
either through a counsel or through any other person unless the statute or rules/ standing
orders provide for such a right. Moreover, the right to representation through someone,
even if granted by the rules, can be granted as a restricted or controlled right. Refusal to
grant representation through an agent does not violate the principles of natural justice.
Rule 158(3) giving right of representation through friend but restricting the right by
providing that the friend cannot address the I. O. or cross-examine the witnesses, cannot
be said to be invalid.
2001 (5) Andh LT 543, Reversed. (Paras 10, 11, 12)
1999 AIR SCW 64 : AIR 1999 SC 401 : 1999 Lab IC 430 (Rel. on) 9
1961 (2) Lab LJ 417 (SC) (Rel. on) 8
AIR 1960 SC 914 (Foll.) 8
Dr. R.G. Padia, Sr. Advocate, Ms. Shipra Ghose, B.K. Prasad and Mrs. Anil Katiyar, for
Appellants.
Judgement
1. MARKANDEY KATJU, J. :- This appeal by special leave has been filed against the
judgment and order dated 7-9-2001 of 8 the Andhra Pradesh High Court in Writ Appeal
No. 139 of 1998.
2. The respondent was an Inspector of the Railway Protection Force. He was placed
under suspension on 18-9-1995 on the allegation that he made excess delivery of
@page-SC1959
scrap worth about Rs. 10,000/-. A departmental proceeding was initiated against him in
which he was given opportunity of hearing in which he sought to engage a friend to
defend his case.
3. A writ petition was filed before the Learned Single Judge of the Andhra Pradesh High
Court which was dismissed. Against that judgment a Writ Appeal was filed, and the
matter was referred to a Full Bench of the High Court for deciding the constitutionality of
Rule 153(8) of the Railway Protection Force Rules, 1987 (hereinafter referred to as the
Rules), which have been made under the Railway Protection Force Act, 1957.
4. The Full Bench held that Rule 153(8) is unreasonable and hence unconstitutional and
accordingly it struck down Rule 153(8). Against that judgment of the Full Bench this
appeal has been filed.
Rule 153(8) of the Rules states :
"153.8 The enrolled member charged shall not be allowed to bring in a legal practitioner
at the proceedings but he may" be allowed to take the assistance of any other member of
the Force (hereinafter referred to as "friend") where in the opinion of the Inquiry Officer
may, at the request of the party charged, put his defence properly. Such "friend" must be a
serving member of the Force or below the rank of Sub-Inspector for the time being
posted in the same division or the battalion where the proceedings are pending and not
acting as a "friend" in any other proceedings pending anywhere. Such "friend" shall,
however, not be allowed to address the Inquiry Officer nor to cross examine the
witnesses."
(Emphasis supplied)
5. The last sentence of Rule 153.8 (which has been underlined above) was challenged as
being arbitrary and unconstitutional. The said sentence states that a friend shall not be
allowed to address the Inquiry Officer nor to cross-examine the witnesses. Thus the
friend of the charge-sheeted employee can only assist him in preparing his case and even
during the hearing, but the charge-sheeted employee himself has to address the Inquiry
Officer and cross-examine the witnesses, if he so desires.
6. It may be stated that Rule 153.10(b) states that if the evidence is oral, the charge-
sheeted employee shall be allowed to cross-examine the witnesses. Thus, it is not that no
right of cross-examination has been granted at all in the Inquiry. However, this cross-
examination must be done by the charge-sheeted employee himself and not by his friend.
Similarly, arguments before the Inquiry Officer can only be advanced by the charge-
sheeted employee and not by his friend.
7. We are of the opinion that the view taken by the Full Bench of the High Court in the
impugned judgment is not correct.
8. It is well settled that ordinarily in a domestic/departmental inquiry the person accused
of misconduct has to conduct his own case vide N. Kalindi and others vs. M/S. Tata
Locomotive and Engineering Co. Ltd., AIR 1960 SC 914. Such an inquiry is not a suit or
criminal trial where a party has a right to be represented by a lawyer. It is only if there is
some rule which permits the accused to be represented by someone else, that he can claim
to be so represented in an inquiry vide Brook Bond India vs. Subba Raman 1961 (11) LLJ
417.
9
. Similarly, in Cipla Ltd. and others vs. Ripu Daman Bhanot and another 1999 (4) SCC
188, it was held by this Court that representation could not be claimed as of right. This
decision followed the earlier decision Bharat Petroleum Corporation Ltd. vs. Maharashtra
General Kamgar Union,1999 (1) SCC 626, in which the whole case law has been
reviewed by this Court. 1999 AIR SCW 1248
1999 AIR SCW 64
10. Following the above decision it has to be held that there is no vested or absolute right
in any charge-sheeted employee to representation either through a counsel or through any
other person unless the statute or rules/standing orders provide for such a right.
Moreover, the right to representation through someone, even if granted by the rules, can
be granted as a restricted or controlled right. Refusal to grant representation through an
agent does not violate the principles of natural justice.
11. In the present case, Rule 153(8) only provides for assistance to a charge-sheeted
employee by an agent. Thus, a restricted right of representation has been granted by Rule
153(8). Even if no right of assistance had been granted by the rules, there would be no
illegality or unconstitutionality. How then can it be said that when a restricted right is
granted, the said restricted right is
@page-SC1960
unconstitutional?
12. We, therefore, respectfully disagree with the Full Bench impugned judgment of the
High Court and we are of the view that Rule 153(8) is constitutionally valid.
13. In view of the above, the appeal stands allowed. The impugned judgment of the High
Court is set aside. There shall be no order as to costs.
Appeal allowed.
AIR 2008 SUPREME COURT 1960 "Puran Ram v. Bhaguram"
(From : Rajasthan)*
Coram : 2 TARUN CHATTERJEE AND H. S. BEDI, JJ.
-2008.
Puran Ram v. Bhaguram and Anr.
(A) Civil P.C. (5 of 1908), O.6, R.17 - Specific Relief Act (47 of 1963), S.26 -
AMENDMENT - PLEADINGS - CONTRACT - SALE - Amendment of plaint - Suit for
specific performance of contract to sell - Mistake in description of suit property in plaint -
Amendment sought to rectify mistake in plaint as well as in contract - Can be allowed in
view of S.26 - Nature of suit not changed by amendment.
In a suit for specific performance of contract for sale, it is permissible to amend a part of
the description of the suit property not only in the plaint but also in the agreement.
Section 26 clearly says as to when a contract or other instrument can be rectified and
provides that when through fraud or a mutual mistake of the parties, the agreement in
writing does not express their real intention, it is open to the parties to apply for
amendment of the instrument. Section 26 further provides that either party may institute a
suit to have the instrument rectified or a party who has already filed a suit in which any
right arising under the instrument is in issue may claim in his pleading that the instrument
be rectified. The prayer for amendment of the agreement to correct a part of the
description of the suit property cannot involve either the question of limitation or the
change of nature of suit. The suit shall remain a suit for specific performance of the
contract for sale and a separate independent suit is not needed to be filed when the
proviso to S. 26 itself clearly permits either party to correct or rectify the description of
the suit property riot only in the plaint but also in the agreement itself. (Paras 11, 12)
The amendment seeks only a change in a part of the description of the suit property,
which was wrongly described by mutual mistake. This change in a part of the description
of the suit property in the plaint cannot convert the suit for specific performance of the
contract to a suit for declaration. (Para 13)
(B) Constitution of India, Art.227 - HIGH COURT - TRIAL COURT - Supervisory
jurisdiction - Exercise of - Not proper unless order of trial Court is either without
jurisdiction or perverse or arbitrary. (Para 14)
(C) Civil P.C. (5 of 1908), O.6, R.17 - PLEADINGS - AMENDMENT - Amendment of
pleadings - Relief of - Within discretion of Court - Amendment seeking time-barred relief
can also be allowed. (Para 15)
2004 AIR SCW 4522 : AIR 2004 SC 4102 (Rel. on, Pnt. C) 15
AIR 1969 SC 1267 (Rel. on, Pnt. C) 15
AIR 1921 Mad 664 (Approved) 12
B.D. Sharma, N. Vyas, Dr. Aaray Wingaiah, Vidya Sagar and Ms. Bharathi, for Appellant;
Sushil Kumar Jain, Puneet Jain and H.D. Thanvi (for Ms. Pratibha Jain), for
Respondents.
* S. B. Civil Writ Petn. No. 1412 of 2005, D/- 16-5-2005 (Raj).
Judgement
1. TARUN CHATTERJEE. J. :-Leave granted.
2. This appeal relates to rejection of an application for amendment of plaint in a suit for
specific performance of the agreement for sale passed by the High Court of Rajasthan at
Jodhpur by which the High Court, in the exercise of its power under Article 227 of the
Constitution, had reversed the order of the Second Additional District Judge, Bikaner
allowing the application for amendment of the plaint.
3. On 18th of December, 1997, the plaintiff/appellant had filed a suit for specific
performance of a contract to sell relating to 25 bighas of irrigated agricultural land in
Chak No. 3 SLM, being Square No. 112/63, Colonization Tehsil Pungal, District Bikaner,
Rajasthan (hereinafter called as "the suit property") and for permanent injunction.
@page-SC1961
4. The case made out by the appellant in the plaint is to the following effect :-
The appellant had entered into an agreement for sale to purchase the suit property for a
sum of Rs. 2,00,000/-. On 12th of April, 1991, he paid a sum of Rs. 50,000/- to the
vendor Bhaguram. By virtue of the payment, Bhaguram, the respondent No. 1, has put
the appellant in possession of the suit property and has also agreed to receive a further
sum of Rs. 1,50,000/- from the appellant within a period of 30 days and thereafter
execute the sale deed in favour of the appellant. On 12th of April, 1991, Bhaguram
received the balance consideration money of Rs. 1,50,000/- from the appellant and
executed an agreement to sell and a power of attorney in his favour. Since the respondent
No. 1 had failed to execute the sale deed after receiving the balance consideration money
of Rs. 1,50,000/-, the appellant was constrained to file the suit for specific performance of
contract for sale and for permanent injunction in respect of the suit property. It is to be
noted that the appellant in his plaint has described the suit property as falling in Chak
No.3 SSM, Tehsil Pungal, District Bikaner.
5-6. When the description of a part of the suit property was found to be a mutual mistake,
the appellant filed an application for amendment of the plaint under Order 6, Rule 17 of
the Code of Civil Procedure on 20th of March, 1998 seeking to amend the plaint and give
the description of the suit property as Chak No.3 SLM instead of Chak No.3 SSM.
Initially, the application for amendment of the plaint was filed seeking to correct a part of
the description of the suit property only in the plaint. The application for amendment of
the plaint was contested by the respondent No. 1. However, by an order dated 29th of
August, 1998, the prayer for amendment of the plaint was rejected by the trial court on
the ground that the plaint was filed on the basis of the agreement to sell dated 12th of
April, 1991 and since no prayer was made for getting the agreement amended, the
application for amendment of the plaint could not be allowed. Feeling aggrieved, a
revision petition was filed, but later on, the same was rejected as withdrawn with liberty
to raise the question in appeal against the final judgment, if such occasion arose. Since
the agreement entered into by the parties contained a wrong description relating to the
suit property, the appellant filed another application for amendment of the plaint seeking
amendment this time not only of the plaint but also the agreement to sell dated 12th of
April, 1991 so as to describe the suit property as Chak No.3 SLM, later on converted to
Chak No. 3 SWM in place of Chak No.3 SSM. In the said application for amendment, the
appellant sought amendment of the agreement on the ground that under Section 26 of the
Specific Relief Act, 1963, he was entitled to seek amendment in the plaint as well as in
the agreement by which the nature of the suit, which is a suit for specific performance of
the contract for sale could not be said to have been changed. This application for
amendment of the plaint was also contested by the respondent No. 1 contending, inter
alia, that if such amendment was allowed, the nature and character of the suit would be
changed and also that the appellant cannot be permitted to amend the agreement in
question in a suit for specific performance of contract for sale. By an order dated 25th of
February, 2005, the Second Additional District Judge, Bikaner, allowed the application
for amendment of the plaint. Feeling aggrieved by the aforesaid order of the Second
Additional District Judge, Bikaner, the respondent No. 2, who has purchased the suit
property from the respondent No. 1, filed a petition under Article 227 of the Constitution
challenging the aforesaid order allowing the application for amendment of the plaint.
7. By an order dated 16th of May, 2005, which is now impugned in this appeal, the High
Court allowed the petition and set aside the order of the trial court, inter alia, on the
following grounds :-
[i] Relief sought for by the appellant by way of amendment of the plaint could not be
allowed in view of the expiry of the period of limitation;
[ii] If such amendment was allowed, the nature of the suit would change from a suit for
specific performance of contract for sale to a suit for declaration which was not
permissible;
8. On the aforesaid findings, the High Court, as noted herein-earlier, had rejected the
application for amendment of the plaint by passing the impugned judgment. The said
order is now under challenge before us by way of a special leave petition in respect of
which leave has already been granted. It may be stated at this juncture that the trial court
@page-SC1962
in its discretion had allowed the application for amendment of plaint. In that situation, it
needs to be seen whether it was open to the High Court in the exercise of its power under
Article 227 of the Constitution to reverse the said order and reject the application for
amendment of plaint. We will come to this question later after we deal with the question
whether the application for amendment of plaint in the facts and circumstances of the
case and on the allegations made in the plaint could be rejected.
9. Heard the learned counsel for the parties and examined the impugned order and the
order of the trial court as well as the application for amendment of the plaint and other
materials on record. After hearing the learned counsel for the parties and considering the
nature of amendment sought for, we are not in agreement with the order passed by the
High Court rejecting the application for amendment of the plaint. The learned counsel
appearing on behalf of the appellant has contended that in view of the nature of
amendment sought for in the plaint as well as in the agreement, the High Court was not
justified in rejecting the prayer for amendment of the plaint and the agreement. He further
contended that in view of Section 26 of the Specific Relief Act, 1963, it was open to the
appellant to apply for amendment of the agreement for sale. The learned counsel for the
appellant also contended that since the prayer for amendment of the plaint was only to
correct a part of the description of the suit property in the agreement for sale as well as in
the plaint, the court was not justified in rejecting the application for amendment of the
plaint and the agreement. Further, by such amendment of the plaint, neither the nature
and character of the suit would be changed nor the question of limitation could arise.
According to the learned counsel for the appellant, the suit would remain a suit for
specific performance of the contract for sale and only a part of the description of the suit
property would be changed, as noted herein-earlier, by way of such amendment. The
learned counsel appearing for the respondent, however, sought to argue that the
amendment of the agreement, even so far as a part of the description of the suit property
is concerned, cannot be allowed in a suit for specific performance of the contract for sale.
According to him, Section 26 of the Specific Relief Act clearly expresses the intention
that if the description of the suit property needs to be corrected, it can only be corrected
by instituting a suit for correction or rectification of the deed. He has also drawn our
attention to sub-section (4) of Section 26 and submitted that no relief for rectification of
an instrument should be granted to any party under section 26 of the Act unless it has
been specifically claimed. So far as the prayer for amendment of the plaint is concerned,
the learned counsel for the respondent contended that the prayer for amendment of the
plaint would be barred by limitation as the agreement was entered into on 12th of April,
1991 and the amendment of the plaint was sought on 9th of May, 2003. Accordingly,
neither the prayer for amendment of the agreement, nor the prayer for amendment of the
plaint could be allowed even though the said amendment relates only to the change of a
part of the description of the suit property.
10. Keeping the arguments advanced by the learned counsel for the parties in mind, let us
now consider whether the prayer for amendment of the plaint and the agreement, in the
facts and circumstances of the case, could be allowed or not. So far as the prayer for
correcting or rectifying the agreement in respect of a part of the description of the suit
property is concerned, it would be appropriate to look into the provisions made in Section
26 of the Specific Relief Act, 1963. Chapter 3 of the Specific Relief Act, 1963
specifically deals with rectification of instruments. Section 26 provides as to when an
instrument may be rectified and reads as under :-
"26. When instrument may be rectified. (1) When, through fraud or a mutual mistake of
the parties, a contract or other instrument in writing (not being the articles of association
of a company to which the Companies Act, 1956, applies) does not express their real
intention, then -
(a) either party or his representative in interest may institute a suit to have the instrument
rectified; or
(b) the plaintiff may, in any suit in which any right arising under the instrument is in
issue, claim in his pleading that the instrument be rectified; or
(c) a defendant in any such suit as is referred to in clause (b), may, in addition to any
other defence open to him, ask for rectification of the instrument.
@page-SC1963
(2) If, in any suit in which a contract or other instrument is sought to be rectified under
sub-section (1), the court finds that the instrument, through fraud or mistake, does not
express the real intention of the parties, the court may, in its discretion, direct rectification
of the instrument so as to express that intention, so far as this can be done without
prejudice to rights acquired by third persons in good faith and for value.
(3) A contract in writing may first be rectified, and then if the party claiming rectification
has so prayed in his pleading and the court thinks fit, may be specifically enforced.
(4) No relief for the rectification of an instrument shall be granted to any party under this
section unless it has been specifically claimed :
Provided that where a party has not claimed any such relief in his pleading, the court
shall, at any stage of the proceeding, allow him to amend the pleading on such terms as
may be just for including such claim."
11. After closely examining the provisions made under Section 26 of the Specific Relief
Act, 1963, we do not find any difficulty to hold that in a suit for specific performance of
contract for sale, it is permissible to amend a part of the description of the suit property
not only in the plaint but also in the agreement. Section 26 clearly says as to when a
contract or other instrument can be rectified and provides that when through fraud or a
mutual mistake of the parties, the agreement in writing does not express their real
intention, it is open to the parties to apply for amendment of the instrument. It provides
that when such a situation arises, then -
(a) either party or his representative in interest may institute a suit to have the instrument
rectified, or
(b) the plaintiff may, in any suit in which any right arising under the instrument is in
issue, claim in his pleading that the instrument be rectified.
12. A reading of these two conditions made under Section 26 of the Act would amply
show that either party may institute a suit to have the instrument rectified or a party who
has already filed a suit in which any right arising under the instrument is in issue may
claim in his pleading that the instrument be rectified. So far as the facts of the present
case are concerned, it cannot be doubted that the main issue in the suit for specific
performance of the contract for sale was relating to the agreement for sale in which a part
of the description of the suit property was wrongly given by mutual mistake and,
therefore, needed to be amended. Section 26, of course, says that it would be open to a
party to institute a suit for correcting the description of the suit property, but the proviso
to Section 26 clearly permits that where a party has not claimed any such relief in his
pleading, the court shall at any stage of the proceeding allow him to amend the plaint on
such terms as may be just for including such claim. From a plain reading of the
provisions under Section 26 of the Act, there is no reason why the prayer for amendment
of the agreement to correct a part of the description of the suit property from Chak No. 3
SSM to Chak No. 3 SLM, later on converted to Chak No. 3 SWM could not be granted.
In our view, it is only a correction or rectification of a part of the description of the suit
property, which cannot involve either the question of limitation or the change of nature of
suit. In our view, the suit shall remain a suit for specific performance of the contract for
sale and a separate independent suit is not needed to be filed when the proviso to Section
26 itself clearly permits either party to correct or rectify the description of the suit
property not only in the plaint but also in the agreement itself. So far as the question of
limitation is concerned, the agreement was entered into on 12th of April, 1991 and the
suit, admittedly, was filed within the period of limitation. Therefore, even if the
amendment of plaint or agreement is allowed, that will relate back to the filing of the suit
which was filed within the period of limitation. So far as the submission of the learned
counsel for the respondent that the rectification of the agreement cannot be permitted is
concerned, we are of the view that Section 26(4) of the Act only says that no relief for
rectification of instrument shall be granted unless it is specifically claimed. However,
proviso to Section 26, as noted herein-earlier, makes it clear that when such relief has not
been claimed specifically, the court shall at any stage of the proceeding allow such party
to amend the pleading as may be thought fit and proper to include such claim. Therefore,
we are not in agreement with the learned counsel for the respondent that section 26 would
stand in the way of allowing the application for amendment of the agreement
@page-SC1964
The views expressed by us find support in a decision of the Madras High Court in Raipur
Manufacturing Co. Ltd vs. Joolaganti Venkatasubba Rao Veerasamy and Co. [AIR 1921
Mad 664], wherein it was held that where in the course of a suit for damages for breach
of contract, the plaintiff contends that there is a clerical error in the document embodying
the contract, it is not always necessary that a separate suit should have been brought for
rectification of the document and it is open to the court in a proper case to allow the
plaintiff to amend the plaint and ask for the necessary rectification. As noted herein-
earlier, the learned counsel for the respondent contended before us that the appellant
could not get specific performance of the contract for sale unless he sued for rectification
of the agreement for sale. We are unable to accept this contention of the learned counsel
for the respondent for the simple reason that in this case, by filing the application for
amendment in the suit for specific performance of the contract for sale, the appellant had
sought the rectification of the agreement also. It is sufficient to observe that it was not
necessary for the appellant to file a separate suit for that purpose as contended by the
learned counsel for the respondent. It is open to the appellant to claim the relief of
rectification of the instrument in the instant suit. The amendment, in our view, in the
agreement was a formal one and there was no reason why such amendment could not be
allowed.
13. The other ground on which the High Court has refused to permit the appellant to
amend the plaint is that if the amendment is allowed, the suit shall be converted into a
suit for declaration. We are unable to accept this view of the High Court. In our view, the
suit is a suit for specific performance of the contract for sale simpliciter and only a part of
the description of the suit property in the agreement as well as in the plaint was sought to
be corrected or amended by the appellant by filing the application for amendment of the
plaint. If we are permitted to look into the description of the suit property from the
original plaint as well as from the application for amendment, it would be clear that the
description of the suit property has been kept intact excepting that instead of Chak No. 3
SSM, Chak No. 3 SLM, later on converted to Chak No. 3 SWM, has been sought to be
replaced. Therefore, it is difficult to conceive that by such amendment, that is, instead of
Chak No. 3 SSM, if Chak No.3 SLM, later on converted to SWM is substituted, either the
description of the suit property or the nature of the suit would change. This is only a
change in a part of the description of the suit property, which was wrongly described by
mutual mistake. Therefore, in our view, this change in a part of the description of the suit
property in the plaint cannot convert the suit for specific performance of the contract to a
suit for declaration. In any view of the matter, the relief claimed in the suit remained the
same i.e. a decree for specific performance of the contract for sale and by amendment, no
declaration has been sought for in respect of the instrument.
14. We may now take into consideration as to whether the High Court, in the exercise of
its power under Article 227 of the Constitution, was justified in rejecting the application
for amendment of the plaint, which, in the discretion of the trial court, was allowed. We
are of the view that the High Court ought not to have interfered with the order of the trial
court when the order of the trial court was passed on sound consideration of law and facts
and when it cannot be said that the order of the trial court was either without jurisdiction
or perverse or arbitrary.
15
Before parting with this judgment, we may deal with the submission of the learned
counsel for the respondent that the application for amendment could not be allowed
inasmuch as the same was barred by limitation. We are unable to accept this contention of
the learned counsel for the respondents. In this regard,we may observe that the court may,
in its discretion, allow an application for amendment of the plaint even where the relief
sought to be added by amendment dly barred by limitation. This view was also expressed
by this Court in Pankaja and Anr. vs. Yellappa (Dead) by L.Rs. and Ors. [(2004) 6 SCC
415]. In that decision, it was held that there is no absolute rule that in such a case, the
amendment should not be allowed and the discretion of the court in that regard depends
on the facts and circumstances of the case and such discretion has to be exercised on
ajudicious evaluation thereof. It was further held in that decision that an amendment,
which subserves the ultimate cause of justice and avoids further litigation, should be
allowed. It is well 2004 AIR SCW 4522
@page-SC1965
settled by a catena of decisions of this Court that allowing and rejecting an application for
amendment of a plaint is really the discretion of the Court and amendment of the plaint
also should not be refused on technical grounds. In this connection reliance can be placed
on a decision of this court in Jai Jai RamManohar Lal vs. National Building Material
Supply, Gurgaon [AIR 1969 SC 1267 J. In paragraph 8 of the said decision this Court
observed that "since the name in which the action was instituted was merelya
misdescription of the original plaintiff, no question of limitation arises: the plaint must be
deemed on amendment to have been instituted in the name of the real plaintiff on the date
on which it was originally instituted." A reading of this observation would amply clear
the position that no question of limitation shall arise when misdescription of the name of
the original plaintiff or misdescription of the suit property arose in a particular case. Apart
from that in the present case, although, the relief claimed before as well as after
theamendment remained the same i.e. a decree for specific performance of the contract
for sale, even then, in the facts and circumstances of the present case, as noted herein-
earlier, we do not find why the High Court should have interfered with the discretion
used by the trial court in allowing the application for amendment of the plaint.
16. For the reasons aforesaid, we are unable to sustain the impugned order of the High
Court. Accordingly, the impugned order of the High Court is set aside and that of the
Second Additional District Judge, Bikaner is restored. The application for amendment of
the plaint, as prayed for, is thus allowed. It will be open to the respondents to file their
written statement if the same has not yet been filed and if the same has been filed, it will
be open to them to file an additional written statement within a period of one month from
the date of supply of a copy of this order to the trial court.
17. The appeal is thus allowed to the extent indicated above. There will be no order as to
costs.
Order accordingly.
AIR 2008 SUPREME COURT 1965 "Maria Colaco v. Alba Flora Herminda D'Souza"
(From : Bombay)
Maria Colaco and Anr. v. Alba Flora Herminda D'Souza and Ors.
Specific Relief Act (47 of 1963), S.38 - INJUNCTION - ADVERSE POSSESSION -
Permanent injunction - Plaintiffs looking after suit property after death of its owner - In
their absence defendant falsely declared himself as owner of said property - Entered into
construction agreement with developer - When original owner protested, construction
work on property in question was stopped for some time - Goes to show that defendants
were not sure of their possession as well as their title over suit property by way of
adverse possession - In circumstances grant of injunction restraining defendants from
interfering with possession of plaintiffs and from proceeding with construction work and
to restore suit property in its previous condition - Not liable to be interfered with. (Para
3)
P.S. Narsimha, A. Subba Rao, for Appellants; Bhimrao N. Naik, Sr. Advocate, Dr. Rajesh
B. Masodkar, Anil Kumar Jha, for Respondents.
Judgement
1. A. K. MATHUR, J. :-This appeal is directed against the order dated 5-3-2001 passed in
Second Appeal No. 55 of 2000 by the High Court of Bombay at Goa whereby learned
Single Judge has set aside the order of the first appellate court and allowed the suit of the
original plaintiff and granted injunction restraining the defendants from proceeding with
the construction in the suit property or doing anything in the suit property and the
defendants were directed to restore the suit property in its previous condition by filling up
the foundation trenches and removing anything done or might have been done by the
defendants in the suit property. Aggrieved against this order the present appeal was filed.
2. Brief facts which are necessary for disposal of this appeal are that the suit property was
granted by the Governor General Do Estado Da India, to one Mr. Antonio D' Souza on
payment of Rupees four nine anna and twenty paise payable each year to the State.
Antonio D'Souza died leaving behind his heirs, his children Jose Maria
@page-SC1966
D' Souza and Elisa D' Souza. Jose Maria D' Souza expired leaving behind her daughter
Umbelina D' Souza. Lawrance D' Souza, husband of Umbelina D' Souza also died.
Umbelina D' Souza died leaving behind the plaintiff and his brothers. As the plaintiff was
staying in Bombay, he requested one Amorim Velho, son of Elisa D' Souza to look after
the property and accordingly, he was looking after the suit property till 1977. Thereafter,
Joildo De Aguiar looked after the property. In August, 1981 Aguiar went abroad and
returned in November, 1981. On his return he found that some construction work was
undertaken by M/s. Pinto Engineers and Contractors, Defendant No. 3 through their
agents. Then Robert D' Souza filed a regular suit in the court of the Civil Judge, Junior
Division, Panjim and prayed that the defendants and their agents should be restrained by
perpetual Injunction from Interfering in any manner with the possession of the plaintiff
and his brothers in respect of the suit property and they be restrained from proceeding
with the works of construction in the suit property and to return the suit property in its
original condition. The defendants filed their written statement and resisted the suit.
Thereafter during the pendency of the suit the plaintiff died and respondents 1 to 7 were
brought on record as legal representatives of the deceased plaintiff. On 5-12-1998,
learned Civil Judge, Junior Division, Panjim decreed the suit restraining the defendants
by perpetual injunction from interfering with the possession of the plaintiffs in respect of
the suit property and from proceeding with the work of construction. Learned Civil
Judge, Junior Division further directed the defendants to restore the suit property in its
previous condition by filling up the foundation trenches and removing anything done in
the suit property. Thereafter a regular civil appeal being Regular Civil Appeal No. 1 of
1999 was filed in the Court of Additional District Judge, Panaji. Learned Additional
District Judge by order dated 10.4.2000 allowed the appeal filed by the appellants and
dismissed the suit. Thereafter, respondent Nos. 1 to 7 filed a second appeal being Second
Appeal No. 55 of 2000 in the High Court of Bombay at Goa. Learned Single Judge of the
High Court framed the following questions of law> :
(i) Whether the District Judge erred in dismissing and/or rejecting the claim of the
plaintiffs for permanent injunction on the ground that from the plaint it could be inferred
that the plaintiffs had admitted loss of possession of the suit property in favour of the
defendants/ respondents ?"
Learned Single Judge after considering the matter allowed the second appeal and set
aside the order passed by the first appellate court and confirmed the decree of the trial
court. Hence the present appeal.
3. We have heard learned counsel for the parties and perused the record. Learned Single
Judge after examining the matter found that in fact on the date Aguair came to know that
the defendant Nos. 1 and 2 had induced the defendant No. 3 to believe that they were the
owners and possessors of the suit property and that on such a condition the defendant No.
3 entered into an agreement with Defendant Nos. 1 and 2 whereby the defendant Nos. 1
and 2 had promised to sell the suit property to defendant No. 3 and who was allowed to
construct the building consisting of flats in the suit property and Aguair also came to
know that on 1-9-1979 a deed of Justification was recorded by the Registrar cum-Sub
Registrar and Notary, ex- Officio Ilhas, Goa wherein it was falsely declared that
Defendant No. 1 was the owner and was in possession with exclusion of any other
persons of the suit property and had possessed the suit property for more than 30 years.
On further query he came to know that the defendant No. 1 managed to get the suit
property registered in the records of the land revenue office in her name and thereafter
they got the plan for construction sanction approved by the Panaji Municipality. But
when Aguair raised objection then defendant No. 3 stopped construction work for four
days and thereafter he again started the work by placing the steel reinforcement for
casting footing. Therefore, the plaintiff apprehended that they would proceed with further
construction and therefore, the plaintiff was constrained to file the suit. Therefore, on that
basis it was submitted before the learned Single Judge of the High Court that from these
facts it was more than apparent that the plaintiff lost the possession. Therefore, at the
relevant time the plaintiff was not in possession of the suit property. As such, there was
no cause for filing the suit for permanent injunction. Learned Single Judge after
considering the
@page-SC1967
matter found that these averments did not constitute the basis on the part of the plaintiff
that he was not in possession of the suit property. On the contrary, learned Single Judge
found in reply to paragraph 13 of the plaint, the defendants in their written statement
admitted that the work was stopped by the defendant No. 1 for some time but they
restarted the work again. This, according to learned Single Judge was a proof of the fact
that the Defendant Nos. 1 and 2 and Defendant No. 3 were not sure about the possession
and right of the defendant Nos. 1 and 2 over the property. In fact, what it transpires from
all these facts that the trial court reached the same conclusion as the learned Single Judge
in second appeal in High Court. It is true normally in the second appeal the High Court
should not interfere on the questions of fact. But if on the scrutiny of the evidence it is
found that the finding recorded by first appellate court is totally perverse then certainly
the High Court can interfere in the matter as it constitutes the question of law. In the
given facts it is more than apparent that the plaintiffs who are claiming the right over the
property by way of prescription but that has been denied by the plaintiffs that they were
the owners of the property and it was being looked after by Aguair and in absence of
Aguair the defendants registered the deed of justification and on that basis they claimed
the right over the property. But when the original owner protested to the so called deed of
justification, then the construction work was also stopped for some time. This goes to
show that the defendants were not sure of their possession as well as their title over the
suit property by way of adverse possession. In these circumstances, the trial court granted
injunction but the first appellate court wrongly reversed it without adverting to the
finding of the trial court. The said finding of the first appellate court was set aside by the
High Court in second appeal. Therefore, in these facts and circumstances of the case, we
are of opinion that the view taken by the learned Single Judge of the High Court in
second appeal appears to be just and proper and there is no ground to interfere with the
same. Consequently, the appeal is dismissed with no order as to costs.
Appeal dismissed.
AIR 2008 SUPREME COURT 1967 "Renukadevi, H. v. Bangalore Metropolitan
Transport Corpn."
(From :Karnataka)
-2008.
Renukadevi, H. etc. v. Bangalore Metropolitan Transport Corporation etc.
Motor Vehicles Act (59 of 1988), S.168 - MOTOR VEHICLES - HIGH COURT -
NEGLIGENCE - Accident - Claim for compensation - Bus driver tried to torn towards
left side and hit scooty driven by claimant - Claimant sustained number of severe Injuries
- Finding of fact, by High Court that some contributory negligence should also be
attributed to claimant - Could not be said to be perverse or arbitrary in nature - Order of
High Court reducing compensation to extent of 50 percent - Not liable to be interfered
with. (Paras 3, 5, 6)
2003 AIR SCW 5505 : AIR 2003 SC 4182 (Disting.) 6
Ms. Kiran Suri, S.J. Amith, Ms. Aparna Bhat, for Appellants; S.N. Bhat, for Respondents.
Judgement
1. JUDGMENT :- Leave granted.
2. This appeal is directed against the final judgment and order dated 3rd of July, 2006 of
the High Court of Karnataka at Bangalore in M. F. A. No. 1603 of 2003 c. w. M. F. A.
CROB No. 25/2004.
3. We have heard the learned counsel for the parties and examined the impugned
judgment and other materials on record. On consideration of the material on record and
the submissions made by the learned counsel for the parties, we are of the view that no
interference is needed in the present appeal and, therefore, the same shall be dismissed
for the reasons stated hereinafter.
4. On 11th September, 2000, the appellant was riding a TVS Scooty on Jayanagar, 4th
Main Road, 30th Cross, North towards South. By that time one BMTC Pushpak Bus
bearing No. KA-01-F-593 came from the same direction from behind in a very high
speed, in rash and negligent manner endangering the human life tried to turn towards left
side and hit the scooty. The scooty trapped under the bus wheel and was fully
@page-SC1968
damaged. The appellant lost her consciousness and sustained severe injuries over the
head, right leg, pelvis bone and other parts of the body. Finally she was operated for her
head injuries and also treated for number of fractures. She was discharged on 14th
December, 2000 from the hospital with follow up treatment. For the injury and for
medical bills, a compensation application was filed before the VI Additional Civil Judge,
MACT-2, Court of Small Causes, Bangalore City in which the claim of the appellant for
compensation was allowed. An award was passed by the tribunal to an extent of Rs.
12,32,000/-. This award was challenged in the aforesaid appeal in the High Court on the
ground that the tribunal erred in fixing the entire fault on the driver of the BMTC bus for
the accident and secondly, the quantum of compensation was also on the higher side. The
Cross Objection filed by the claimant was for increase in the quantum of compensation. It
is true that the tribunal came to a conclusion of fact that due to total negligence of the
driver of the BMTC bus, the accident took place and, therefore, on the calculation made
by the tribunal, a sum of Rs. 12,32,000/- was awarded. However, in appeal, the High
Court by the impugned order came to a conclusion of fact that the tribunal had lost sight
of the fact that the spot mahazar clearly indicated that the scooty driven by the appellant
hit the rear wheel of the bus, indicating that the claimant was also negligent to a great
extent.
5. Looking to the finding of the tribunal, we also find that the tribunal also came to the
conclusion of fact that the respondent was also negligent and his responsibility was more,
that is, when a Scooty was going on the left side of the road, the driver of a heavy vehicle
ought to have utilized the road or when taking a turn towards east he ought to have
observed the light vehicles that were going on the left side and then take a turn and not
suddenly come and taken a turn. This finding of the tribunal would indicate that the
responsibility of the accident was more on the respondent and, therefore, it cannot be said
that the appellant was also not negligent. From the aforesaid findings of the tribunal as
well as of the High Court which was on consideration of fact, it would be clear that some
contributory negligence should also be attributed to the appellant. Considering the entire
material on record, the High Court reversed the findings of the tribunal and also came to
a conclusion of fact that compensation to the extent of 50 per cent on the ground that the
appellant was also responsible for the contributory negligence should be on the petitioner.
This finding of fact arrived at by the High Court reversing the finding of the tribunal,
could not be said to be perverse or arbitrary in nature. In this view of the matter, we are
not inclined to interfere with the order of the High Court reducing the compensation to
the extent of 50 per cent.
6
. Mrs. Kiran Sur, learned counsel appearing on behalf of the appellant, however, had
drawn our attention to the decision of this Court reported in 2002 (6) SCC 455 (Pramod
Kumar Rasikbhai Jhaveri v. Karmasey Kunvargi Tak and Ors.) and in 2003 (8) SCC 731
(Municipal Corporation of Greater Bombay v. Laxman Iyer and Anr.). In our view, the
principle laid down in these two decisions cannot be applied in the facts and
circumstances of the present case. In the present case, admittedly, the High Court had in
fact come to the conclusion that the appellant had also contributed to the negligence and
therefore, the compensation was reduced to 50 percent. 2002 AIR SCW 3257
2003 AIR SCW 5505
7. That being the position, we are not inclined to interfere with the impugned order of the
High Court. The appeal is accordingly dismissed with no order as to costs.
Appeal dismissed.
AIR 2008 SUPREME COURT 1968 "Jagdish Chanana v. State of Haryana"
-2008.
Jagdish Chanana and Ors. v. State of Haryana and Anr.
Criminal P.C. (2 of 1974), S.482, S.320 - INHERENT POWERS - COMPOUNDING OF
OFFENCE - FIR - Quashing of FIR - Proceedings for - Pendency - Compromise between
parties - Dispute purely personal in nature arising out of commercial transactions - No
public policy is involved in transactions - One of terms of being that proceedings pending
in Court may be withdrawn
@page-SC1969
or compromised or quashed, as the case may be - Therefore prosecution unlikely to
succeed in matter - Continuation of proceedings would be futile exercise - FIR and
consequent proceedings quashed. (Para 2)
Pradeep Kumar Bakshi, for Appellants; Rajeev Gaur 'Naseem', T.V. George, Dharmendra
Kumar Sinha, for Respondents.
* Cri. Appln. No. 25431 of 2006 in Cri M. No. 20115-M of 2005, D/- 24-7-2006 (P and
H).
Judgement
JUDGMENT :-Leave granted.
2. This appeal is directed against the order dated 24th July 2006 rejecting the prayer for
quashing of FIR No.83 dated 12th March 2005 P.S. City Sonepat registered under
Sections 419, 420, 465, 468, 469, 471, 472, 474 read with Section 34 of the IPC. During
the pendency of these proceedings in this Court, Crl. Misc. Petition No. 42/ 2008 has
been filed putting on record a compromise deed dated 30th April 2007. The fact that a
compromise has indeed been recorded is admitted by all sides and in terms of the
compromise the disputes which are purely personal in nature and arise out of commercial
transactions, have been settled in terms of the compromise with one of the terms of the
compromise being that proceedings pending in court may be withdrawn or compromised
or quashed, as the case may be. In the light of the compromise, it is unlikely that the
prosecution will succeed in the matter. We also see that the dispute is a purely personal
one and no public policy is involved in the transactions that had been entered into
between the parties. To continue with the proceedings, therefore, would be a futile
exercise. We accordingly allow the appeal and quash FIR No.83 dated 12th March 2005
P.S. City Sonepat and all consequent proceedings.
Appeal dismissed.
AIR 2008 SUPREME COURT 1969 "Madan Mohan Abbot v. State of Punjab"
-2008.
Madan Mohan Abbot v. State of Punjab.
Criminal P.C. (2 of 1974), S.320 - COMPOUNDING OF OFFENCE - CRIMINAL
PROCEEDINGS - BREACH OF TRUST - Compounding of offences - Personal disputes
- Compromise - Courts should ordinarily accept terms of compromise even in criminal
proceedings - Courts cannot afford keeping matter alive with no possibility of result in
favour of prosecution - Time so saved can be utilised in deciding more effective and
meaningful litigation.
Cri. Misc. No. 40589-M of 2003, D/-14-02-2006 (P and H). Reversed.
Penal Code (45 of 1860), S.406.
In disputes where the question involved is of a purely personal nature, the Court should
ordinarily accept the terms of the compromise even in criminal proceedings as keeping
the matter alive with no possibility of a result in favour of the prosecution is a luxury
which the Courts, grossly overburdened as they are, cannot afford and that the time so
saved can be utilized in deciding more effective and meaningful litigation. This is a
common sense approach to the matter based on ground of realities and bereft of the
technicalities of the law. (Para 5)
In the instant case application was filed for quashing of FIR under various Sections
including S. 406 I.P.C. on account of the compromise entered into between the
complainant and the accused. It was rejected on the ground that S. 406 was not
compoundable as the amount involved was more than Rs. 250/-.
Held, the Court could be said to have confused a compounding of an offence with the
quashing of proceedings. The outer limit of Rs. 250/- which has led to the dismissal of
the application is an irrelevant factor in the later case. Accordingly, the FIR and all
proceedings connected therewith would be deemed to be quashed.
Cri. Misc. No.40589-M of 2003, D/-14-2-2006 (P and H), Reversed. (Para 5)
Vikas Mehta, Nalin Talwar and Ms. Shashi M. Kapila, for Appellant; Kuldip Singh, R.K.
Pandey and T.P. Mishra, for Respondent.
Judgement
1. HARJIT SINGH BEDI, J. :- Leave granted.
2. This appeal is directed against the judgment dated 14th February 2006 whereby an
application for quashing of FIR No. 155 dated 17th November 2001 registered at Police
Station Kotwali, Amritsar under Sections 379,406,409,418,506/34 of the Indian Penal
Code on account of the
@page-SC1970
compromise entered into between the complainant and the accused, has been declined on
the ground that Section 406 was not compoundable as the amount involved was more
than Rs.250/- and that the case was already fixed on 28th April 2006 for the examination
of the prosecution witnesses.
3. Notice was issued in this case on 21st August 2006 and the operation of the order was
stayed in the meanwhile. A counter affidavit has been filed by the sole respondent i.e.
State of Punjab and it has been pointed out, inter alia, that the investigating officer had no
information about the compromise between the parties, that the case was ripe for the
recording of the prosecution evidence and that Section 406 was not compoundable as the
amount involved was more than Rs. 250/-.
4. We have heard the learned counsel for the parties. Concededly a compromise deed has
been executed between the parties on 25th January 2002 in which it has been inter alia
recorded as under :
"Whereas for the past some time some dispute had arisen in between both the parties
regarding which first party has got an FIR No. 155/2001 registered under Sections
379/406/409/418/34 of IPC in P.S. Kotwali Amritsar. After the registration of aforesaid
criminal case a compromise has been arrived at in between both the parties. As a result of
which both the parties have resolved their differences once for all. Now second party
does not owe anything to the first party and first party has undertaken to co-operate with
second party in every manner to get the aforesaid FIR cancelled/ quashed from
appropriate Forum. Furthermore first party has no objection if the bail of second party be
accepted. Rather first party shall co-operate with second party in every manner to secure
bail for him. In view of the compromise arrived at in between the parties entire
differences and tensions those had arisen in between both the parties stands resolved and
both the parties have undertaken not to file any proceedings either civil or criminal or any
other such like proceedings against one another in any court of law at Amritsar or any
other place within or outside India. This compromise is hereby executed in between both
the parties in the presence of marginal witnesses on this 25th day of January 2002 at
Amritsar."
5. It is on the basis of this compromise that the application was filed in the High Court for
quashing of proceedings which has been dismissed by the impugned order. We notice
from a reading of the FIR and the other documents on record that the dispute was purely
a personal one between two contesting parties and that it arose out of extensive business
dealings between them and that there was absolutely no public policy involved in the
nature of the allegations made against the accused. We are, therefore, of the opinion that
no useful purpose would be served in continuing with the proceedings in the light of the
compromise and also in the light of the fact that the complainant has, on 11th January
2004, passed away and the possibility of a conviction being recorded has thus to be ruled
out. We need to emphasize that it is perhaps advisable that in disputes where the question
involved is of a purely personal nature, the Court should ordinarily accept the terms of
the compromise even in criminal proceedings as keeping the matter alive with no
possibility of a result in favour of the prosecution is a luxury which the Courts, grossly
overburdened as they are, cannot afford and that the time so saved can be utilized in
deciding more effective and meaningful litigation. This is a common sense approach to
the matter based on ground of realities and bereft of the technicalities of the law. We see
from the impugned order that the learned Judge has confused a compounding of an
offence with the quashing of proceedings. The outer limit of Rs.250/- which has led to the
dismissal of the application is an irrelevant factor in the later case. We accordingly allow
the appeal and in the peculiar facts of the case, direct that FIR No. 155 dated 17th
November 2001 P.S. Kotwali, Amritsar and all proceedings connected therewith shall be
deemed to be quashed.
Appeal allowed.
AIR 2008 SUPREME COURT 1970 "Bharath Metha v. State by Inspector of Police,
Chennai"
(From : Madras)*
-2008.
Bharath Metha v. State by Inspector of Police, Chennai.
Criminal P.C. (2 of 1974), S.451 - DISPOSAL OF PROPERTY - RELEASE OF
VEHICLE - HIRE-PURCHASE AGREEMENT -
@page-SC1971
Release of vehicle - Vehicle seized for transporting prohibited spirit - Vehicle purchased
under hire-purchase agreement - In agreement, appellant-financier is described as
registered owner, and respondent as hirer - Vehicle released in favour of respondent on
certain conditions - Failure of respondent to fulfill those conditions - Vehicle, therefore,
lying with seizing authorities for nearly eight years - Directed to be released in favour of
appellant subject to fulfillment of conditions stipulated for respondent. (Para 9)
2002 AIR SCW 5301 : AIR 2003 SC 638 (Ref.) 8
AIR 1962 SC 1082 (Ref.) 7
AIR 1961 SC 440 (Ref.) 7
Siddhartha Dave, Senthil Jagadeesan, for Appellant; V.G. Pragasam, S.J. Aristotle and
Praburma Subramanian, for Respondent.
* Cri. R.C. No. 267 of 2004, D/- 25-11-2004 (Mad).
Judgement
2. Challenge in this appeal is to the order of a learned Single Judge of the Madras High
Court dismissing the petition filed by the appellant. The Criminal Revision was filed
against order dated 22.12.2003 made in CMP No. 7255 of 2003 by the Court of Judicial
Magistrate No. II, Ponneri, dismissing the petition filed by the appellant under Sections
451 and 457 of the Code of Criminal Procedure, 1973 (in short the Cr.P.C.). The
application was filed for release of lorry bearing Registration No. TN-01-F-9797 which
was alleged to have been involved in a case registered for offences punishable under
various provisions of the Tamil Nadu Prohibition Act. The case of the appellant before
the High Court was that money was provided to the respondent No. 2 to purchase the said
lorry under a hire-purchase agreement. In terms of the agreement, the hirer was required
to pay 32 monthly instalments of Rs. 14,875/- between the period from 24.6.2000 and
24.1.2003. Under the hire-purchase laws, the hirer can become the owner of the vehicle
by exercising the option to purchase after paying the entire amount due and till that time
the financier is the owner. The financier is also entitled to possession of the vehicle since
he is the owner. In the agreement, appellant is described as the owner and the respondent
No.2 as the hirer. The appellant tried to take possession of the vehicle as an owner but the
vehicle was not available at the premises and on enquiry appellant came to know that the
police had seized the same on 6.9.2000 when the vehicle was operating with a fake
number plate for transporting prohibited spirit. The First Information Report was lodged
against respondent No.2 and therefore the appellant prayed for release of the vehicle. The
prayer was resisted by the State on the ground that the vehicle had already been directed
to be returned to the respondent No.2 as he was the owner as per the Registration
Certification.
3. The High Court noted that the vehicle was involved in commission of offences
punishable under Sections 4(I)(A) and 4(1)(aaa) of the Act read with Rules 5 and 6 of
Rectified Spirit Rules. High Court also noted that though an order had been passed for
releasing the vehicle in favour of respondent No. 2, he had not taken custody of the same
though the order was passed on 23.1.2001. The High Court also noted that since the
respondent No.2 was registered as owner of the vehicle and appellant was only the
financier, the vehicle could not be released as prayed for. Accordingly, as noted above,
the criminal revision petition was dismissed.
4. Learned counsel for the appellant submitted that in the certificate of registration there
is clearly an endorsement to the effect that the vehicle was hired under the hire-purchase
agreement. It was also clearly endorsed that the hirer had entered into hire-purchase
agreement with Subham Credits represented by the appellant.
5. Learned counsel for the State clearly stated that though an order was passed permitting
to respondent No.2 that release of the vehicle by executing bond of Rs. 1,00,000/- with
two sureties of like sum and other condition that he shall not alienate or encumber or alter
the vehicle and shall produce the vehicle as and when required by the trial court, the said
condition has not been complied with.
6. It is to be noted that respondent No. 2 did not appear before the High Court in the
connected proceedings.
7
. The nature of hire-purchase agreement has been noted by this Court in Charanjit Singh
2001 AIR SCW 3487, Paras 5 to 8
@page-SC1972
Chadha v. Sudhir Mehra (2001 (7) SCC 417). At page 421 it was noted as follows :
"5. Hire-purchase agreements are executory contracts under which the goods are let on
hire and the hirer has an option to purchase in accordance with the terms of the
agreement. These types of agreements were originally entered into between the dealer
and the customer and the dealer used to extend credit to the customer. But as hire-
purchase scheme gained in popularity and in size, the dealers who were not endowed
with liberal amount of working capital found it difficult to extend the scheme to many
customers. Then the financiers came into the picture. The finance company would buy
the goods from the dealer and let them to the customer under hire-purchase agreement.
The dealer would deliver the goods to the customer who would then drop out of the
transaction leaving the finance company to collect instalments directly from the customer.
Under hire-purchase agreement, the hirer is simply paying for the use of the goods and
for the option to purchase them. The finance charge, representing the difference between
the cash price and the hire-purchase price, is not interest but represents a sum which the
hirer has to pay for the privilege of being allowed to discharge the purchase price of
goods by instalments.
6. Though in India, Parliament has passed the Hire Purchase Act, 1972, the same has not
been notified in the Official Gazette by the Central Government so far. An initial
notification was issued and the same was withdrawn later. The rules relating to hire-
purchase agreements are delineated by the decisions of higher courts. There are a series
of decisions of this Court explaining the nature of the hire-purchase agreement and
mostly these decisions were rendered when the question arose whether there was a sale so
as to attract payment of tax under the Sales Tax Act.
7. In Damodar Valley Corpn. v. State of Bihar (AIR 1961 SC 440) this Court took the
view that a mere contract of hiring, without more, is a species of the contract of bailment,
which does not create a title in the bailee, but the law of hire-purchase has undergone
considerable development during the last half a century or more and has introduced a
number of variations, thus leading to categories and it becomes a question of some nicety
as to which category a particular contract between the parties comes under. Ordinarily, a
contract of hire purchase confers no title on the hirer, but a mere option to purchase on
fulfilment of certain conditions. But a contract of hire-purchase may also provide for the
agreement to purchase the thing hired by deferred payments subject to the condition that
title to the thing shall not pass until all the instalments have been paid. There may be
other variations of a contract of hire-purchase depending upon the terms agreed between
the parties. When rights in third parties have been created by acts of parties or by
operation of law, the question may arise as to what exactly were the rights and obligations
of the parties to the original contract.
8. In K.L. Johar and Co. v. CTO (AIR 1965 SC 1082) this Court took the view that a hire-
purchase agreement has two elements : (1) element of bailment; and (2) element of sale,
in the sense that it contemplates an eventual sale. The element of sale fructifies when the
option is exercised by the intending purchaser after fulfilling the terms of the agreement.
When all the terms of the agreement are satisfied and the option is exercised a sale takes
place of the goods which till then had been hired.
8
. The scope and ambit of Section 451, Cr.P.C. was highlighted by this Court in
Sunderbhai Ambalal Desai v. State of Gujarat (2002 (10) SCC 283). 2002 AIR
SCW 5301
9. Undisputedly, in the Registration Certificate the name of the financier has been
indicated and the factum that the vehicle was subject to such an agreement was also
noted. In the agreement, appellant is described as owner, but respondent No.2 as hirer. It
is noticed that the respondent No.2 had applied for the release of the vehicle and the High
Court had directed the release of vehicle on certain conditions. Undisputedly, those
conditions have not been fulfilled. The vehicle is, therefore, lying with the seizing
authorities for nearly eight years now. In view of the factual position highlighted above,
we direct release of the vehicle in favour of the appellant subject to fulfillment of the
conditions which were stipulated for the respondent No. 2.
Order accordingly.
@page-SC1973
AIR 2008 SUPREME COURT 1973 "Suresh Kumar v. State of Himachal Pradesh"
-2008.
Suresh Kumar v. State of H.P.
(A) Penal Code (45 of 1860), S.300, Exception 4 - MURDER - APPLICABILITY OF
AN ACT - Applicability - Sudden quarrel - Accused must be shown to have not taken
undue advantage or acted in cruel or unusual manner.
What shall be deemed to be a sudden quarrel, is a question of fact and whether a quarrel
is sudden or not must necessarily depend upon the proved facts of each case. For the
application of Exception 4 it is not sufficient to show that there was a sudden quarrel and
there was no premeditation. It must further be shown that the offender has not taken
undue advantage or acted in cruel or unusual manner. The expression 'undue advantage'
as used in the provision means 'unfair advantage'. Where the offender takes undue
advantage or has acted in a cruel or unusual manner, the benefit of Exception 4 cannot be
given to him. If the weapon used or the manner of attack by the assailant is out of all
proportion, that circumstance must be taken into consideration to decide whether undue
advantage has been taken. (Paras 10, 11)
(B) Penal Code (45 of 1860), S.304, Part I - CULPABLE HOMICIDE - SENTENCE
IMPOSITION - Culpable homicide not amounting to murder - Sudden quarrel - Singing
and dancing in marriage parties - Some protest giving rise to exchange of abuses and
altercation between accused and deceased on trivial issue - Accused took out knife from
pocket of his trouser and struck a blow on stomach of deceased - Resulting in death of
deceased - Cogent, credible and reliable evidence of prosecution witnesses - Held, in
facts that, appropriate conviction would be u/S.304, Part I - Custodial sentence of 10
years imposed to meet the ends of justice. (Para 12)
J.M. Khanna, Advocate (SCLSC), for Appellant.
* Cri. A. No.455 of 2002, D/- 23-12-2004 (HP)
Judgement
2. Challenge in this appeal is to the order passed by a Division Bench of the Himachal
Pradesh High Court upholding the conviction of the appellant for offence punishable
under Section 302 of the Indian Penal Code, 1860 (in short 'IPC'). Learned Additional
Sessions, Judge-I, Kangra had convicted the appellant and sentenced to undergo
imprisonment for life and a fine of Rs.5,000/- with default stipulation.
3. Background facts which led to the trial of the accused are essentially as follows :
Brij Lal (PW-1) is a resident of village Nadd, Tehsil Baroh, District Kangra. Sarwan
Kumar (PW-3) also belongs to the same village. On 27.02.2001 marriage of Sanjay
Kumar son of PW-3 was solemnized. At about 6.30 p.m. Baraat of Sanjay Kumar started
on foot from village Nadd to Danoa. PW-1 and his son Sanjeev Kumar (hereinafter
referred to as 'deceased') also participated in the said marriage party. At about 7.30 p.m.
the marriage party reached at a place known as "Thanda Panni". One more marriage party
from village Lahar also reached at "Thanda Panni". Most of the boys participating in both
the marriage parties were singing and dancing. There was some protest giving rise to
exchange of abuses and altercation between the accused and Sanjeev Kumar on a trivial
issue. The accused took out knife from the pocket of his trouser and struck a blow on the
stomach of Sanjeev Kumar. As a result of blood injury he fell down on the ground and
became unconscious. The accused then fled from the spot. PW-1 called his wife from the
village. They both arranged a private jeep to take injured Sanjeev Kumar to a hospital at
Kangra, but Sanjeev Kumar died on the way at Rasooh Chowk. PW-1 informed PW-2
Smt. Usha Guleria, Ex-Member of Zila Parishad about the incident, PW-2 in turn,
informed the S.I./S.H.O. Police Station, Kangra from her PCO about death of Sanjeev
Kumar due to injuries caused with knife. PW-11 S.I. Surbux Singh, Station House
Officer, Police Station, Kangra recorded the telephonic information of PW-2 in daily
diary Ext.PW-9/ A. He along with A.S.I. Dulo Ram, Head Constable Kaur Chand,
Constable Sand Kumar and Subash Chand immediately proceeded to the spot. PW-11
recorded the
@page-SC1974
statement (Ext. PA) of PW-1, complainant under Section 154 of the Code of Criminal
Procedure, 1973 (in short Cr.P.C.) which was sent to Police Station for registration of the
First Information Report. PW-12 Inspector Surinder Singh recorded First Information
Report (Ext.PW11/K) inquest report (Ext. PW-11/B) was prepared by PW-11 on the spot.
The dead body of deceased-Sanjeev Kumar was sent to Civil Hospital at Kangra for post-
mortem. PW-11 visited the place of occurrence on the same day. On the following day he
prepared spot map (Ext.P-11/C) and recorded the statement of the witnesses. He went to
village Khart, where the members of the "Baraat" were staying. He made search for the
accused who at about 11 a.m. was found sleeping in the house of one Amar Nath. The
accused was interrogated and arrested by PW-11. On personal search of the accused
"Dagger" (Ext.P-1) concealed by him underneath the shirt and tucked in the waist was
recovered. Recovery memo (Ext.P-11 /P) of the 'Dagger' was prepared in the presence of
PW-6 Ramesh Kumar and Amar Nath (not examined). 'Dagger' Ext.P/1 was sealed in a
parcel with seal impression, which after use was handed over to PW-6. Sketch map Ext.
P. 11 /G of 'Dagger' was also prepared on 28.02.2001. 'Dagger' along with specimen of
seal impression was deposited with PW-10 Head Constable Des Raj in the Police Station.
PW-13 Dr. D.P. Swami conducted post-mortem examination on the body of Sanjeev
Kumar on 28.02.2001 at 11.30 a.m. in Dr. Rajinder Parshad Govt. Medical College and
Hospital Dharamshala. Dr. Swami found the following injuries on the body of the
deceased :
EXTERNAL APPEARANCE :
"..................
Stab marks also seen on the two vests (one T shirt) depth 1 inch x ½ inch spindle shaped
with clotted blood on these who clothes. Pant, Pajama, and Kachha blood trickled down
from this wound of right lower chest to pubic (genitals) region, reddish, bright.
ANTE-MORTEM WOUNDS :- 1. "Stab wound, on right lower, front chest at 7th rib 1
inch away from sternum /above downward tailing down, sharp margins spindle shaped".
'ABDOMEN :- Column of liver... 1 inch x ½ inch x 3 inch in length x breadth and depth.
Stab wound spindle shaped continuation from injury as reflected in external appearance
on upper mid surface pale, clotted 100-cc blood in the area. Diaphragm also cut adjoining
to this area." In the opinion of the Doctor, Sanjeev Kumar died of blood loss Shock due to
ante-mortem injury to liver by stab injury, injury caused to the deceased was sufficient in
the ordinary course of nature of causing death immediately. Post-mortem report Ex. PW-
13/ B was handed over to PW-11.
PW-11 on receipt of the Chemical Examiner's reports (Ext. PW-11/1) and (Ext. PW-11 /J)
and on completion of the investigation, handed over the case file to PW-12 who prepared
the challan and the accused was sent up for trial. He pleaded not guilty to the charge and
claimed to be tried.
4. 13 witnesses were examined in support of the prosecution version. Accused pleaded
innocence. The Trial Court found PWs 3 and 4 to be reliable and accordingly convicted
appellant for offence under Section 302, IPC as aforesaid. The conviction was challenged
in appeal. Apart from the question of credibility of the prosecution version, it was pleaded
that offence punishable under Section 302, IPC is not made out. The High Court did not
accept that plea and as noted above dismissed the appeal.
5. The plea taken before the High Court was reiterated by the appellant in this appeal.
6. There is no appearance on behalf of the State in spite of the service of notice.
7. The evidence of PWs 3 and 4 does not suffer from any infirmity. It is cogent, credible
and reliable.
8. The residuary plea relates to the applicability of Exception 4 of Section 300, IPC, as it
is contended that the incident took place in course of a sudden quarrel.
9. For bringing in its operation it has to be established that the act was committed without
premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the
offender having taken undue advantage and not having acted in a cruel or unusual
manner.
10. The Fourth Exception of Section 300, IPC covers acts done in a sudden fight. The
said exception deals with a case of prosecution not covered by the first exception, after
which its place would have been more appropriate. The exception is founded upon
@page-SC1975
the same principle, for in both there is absence of premeditation. But, while in the case of
Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only
that heat of passion which clouds men's sober reason and urges them to deeds which they
would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the
injury done is not the direct consequence of that provocation. In fact Exception 4 deals
with cases in which notwithstanding that a blow may have been struck, or some
provocation given in the origin of the dispute or in whatever way the quarrel may have
originated, yet the subsequent conduct of both parties puts them in respect of guilt upon
equal footing. A 'sudden fight' implies mutual provocation and blows on each side. The
homicide committed is then clearly not traceable to unilateral provocation, nor in such
cases could the whole blame be placed on one side. For, if it were so, the Exception more
appropriately applicable would be Exception 1. There is no previous deliberation or
determination to fight. A fight suddenly takes place, for which both parties are more or
less to be blamed. It may be that one of them starts it, but if the other had not aggravated
it by his own conduct it would not have taken the serious turn it did. There is then mutual
provocation and aggravation, and it is difficult to apportion the share of blame which
attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a)
without premeditation, (b) in a sudden fight; (c) without the offenders having taken undue
advantage or acted in a cruel or unusual manner; and (d) the fight must have been with
the person killed. To bring a case within Exception 4 all the ingredients mentioned in it
must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300,
IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that
there must be no time for the passions to cool down and in this case, the parties have
worked themselves into a fury on account of the verbal altercation in the beginning. A
fight is a combat between two and more persons whether with or without weapons. It is
not possible to enunciate any general rule as to what shall be deemed to be a sudden
quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily
depend upon the proved facts of each case. For the application of Exception 4, it is not
sufficient to show that there was a sudden quarrel and there was no premeditation. It must
further be shown that the offender has not taken undue advantage or acted in cruel or
unusual manner. The expression 'undue advantage' as used in the provision means 'unfair
advantage'.
11
. Where the offender takes undue advantage or has acted in a cruel or unusual manner, the
benefit of Exception 4 cannot be given to him. If the weapon used or the manner of attack
by the assailant is out of all proportion, that circumstance must be taken into
consideration to decide whether undue advantage has been taken. In Kikar Singh v. State
of Rajasthan (AIR 1993 SC 2426) it was held that if the accused used deadly weapons
against the unarmed man and struck a blow on the head it must be held that giving the
blows with the knowledge that they were likely to cause death, he had taken undue
advantage. 1993 AIR SCW 2734
12. When the facts are considered in the light of the prosecution evidence, the inevitable
conclusion is that appropriate conviction will be under Section 304, Part I, IPC. Custodial
sentence of 10 years would meet the ends of justice.
Order accordingly.
AIR 2008 SUPREME COURT 1975 "Bihar Finance Service H. C. Co-op. Soc. Ltd. v.
Gautam Goswami"
Contempt Petn. (C) No.44 of 2005, D/- 5 -3 -2008.
Bihar Finance Service H. C. Co-op. Soc. Ltd. v. Gautam Goswami and Ors.
(A) Land Acquisition Act (1 of 1894), S.6 - ACQUISITION OF LAND - HOUSING
BOARD - SUPREME COURT - Acquisition of land for Housing Society - Declaration
u/S.6 - Upheld by Supreme Court and certain directions were issued - Not only in
presence of State of Bihar but also in presence of those who had objected to it - Claim
made by each one of them was taken into consideration - Applicants alleged to be
purchasers of lands pendent lite which was subject matter of different proceedings before
High Court as also Supreme Court - Would also be bound thereby. (Para 18)
(B) Land Acquisition Act (1 of 1894), S.4 - ACQUISITION OF LAND - SUPREME
COURT - Acquisition of land - Proceedings upheld by Supreme Court - Amount of
@page-SC1976
compensation deposited - Awards made - At this stage Court can neither go behind
awards nor various orders passed by Supreme Court. (Para 19)
(C) Constitution of India, Art.129 - SUPREME COURT - CONTEMPT OF COURT -
ACQUISITION OF LAND - POSSESSION - Contempt of Court - Acquisition of land
for petitioner Housing Society in 1983 on basis of requisition made by in 1973 - Awards
became final - Directions by Supreme Court regarding identification of lands and
delivery of possession of land to society - Plea by applicants, alleged purchasers pendente
lite have raised constructions over small areas, and they would suffer irreparable injuries
if decision of Supreme Court is directed to be implemented - Not tenable - Fact that they
have constructed their houses long back, would be of no consequence - Further
bifurcation of State of Bihar has nothing to do with continuation of membership of
society - Authorities directed to take appropriate action. (Paras 18, 20, 24, 26)
(D) Constitution of India, Art.226, Art.133 - WRITS - APPEAL - HIGH COURT -
SUPREME COURT - Decision of High Court - Plea that certain clerical or typographical
error crept therein - Supreme Court cannot direct any correction - Appropriate application
can be filed before High Court. (Para 25)
2007 AIR SCW 6829 : AIR 2008 SC 309 : 2008 CLC 217 : 2008 (1) AIR Bom R 27
(Ref.) 21
2006 AIR SCW 1392 : AIR 2006 SC 1489 : 2006 (3) AIR Bom R 164 (Ref.) 20
22
2004 AIR SCW 4742 : AIR 2004 SC 4277 : 2004 Cri LJ 4848 : 2004 AIR Jhar HCR 2593
(Ref.) 24
2000 AIR SCW 4675 (Ref.) 22
1999 AIR SCW 2619 : AIR 1999 SC 2468 : 1999 All LJ 1802 (Ref.) 20
1993 AIR SCW 3013 (Ref.) 4
A.K. Srivastava, Sr. Advocate, A.P. Sahay, Sujit Kr. Sinha, Anshuman Ashok, Amit
Singh, Kuldip Singh, for Petitioner; Rakesh Dwivedi, Nagendra Rai, Aman Lekhi, Sr.
Advocates, Gopal Singh, T. Mahipal, Nishakant Pandey, Alok Kumar, B.B. Singh, for
Respondents.
Judgement
S. B. SINHA, J. :- This contempt proceeding has a chequered history. Petitioner is a co-
operative society. It intended to have a plot for construction of houses for its members.
A requisition was made for acquisition of land for the said purpose on their own behalf
before the State on or about 3-7-1973.
2. Land acquisition proceedings were initiated pursuant thereto. A notification under S. 4
of the Land Acquisition Act, 1894 was issued. The owners of the land filed objections
under Section 5A of the Act. Overruling the said objection, the proceedings were
continued. A declaration under Section 6 of the Act was issued followed by an award. In
the said proceedings, 59.94 acres of land was acquired. Petitioner-Society deposited the
entire amount of compensation.
Several writ applications came to be filed before the Patna High Court questioning the
said proceedings.
3. The said writ petitions were allowed by the High Court stating :
"40. For the reasons aforementioned in considered opinion, all the writ applications are fit
to be allowed and the impugned declaration under Section 6 of the Act vide notification
dated 16/18-3-1983 as contained in Annexure-2 in C.W.J.C. No. 2755 of 1988 is fit to be
quashed. The case, however, has to be remitted to the respondents State Government for
further proceeding in the matter of inquiry under Section 40 of the Act and Rule 4 of the
aforementioned Rules and under the Act for inquiry under Section 5A of the Act until
objections filed by the petitioner in accordance with law."
4
. However, on an appeal preferred thereagainst this Court in Shyam Nandan Prasad and
others v. State of Bihar and others (since reported in (1993) 4 SCC 255), while clarifying
the law operating in the field stated that where such a requisition is made of the part of a
Company which a co-operative society is Part VII of the Land Acquisition Act, 1894 shall
apply. This Court in its judgment invoked the principle of 'individualized justice'
directing : 1993 AIR SCW 3013
"22. Having thus clarified the law governing the field, we would open doors for streams
of equities and discretions to enter in the exercise of power by the High Court under
Article 226 of the Constitution. As
@page-SC1977
observed earlier, we are of the view that the High Court should not have upset the
notification under Section 6 of the Act as a whole and should have individualised justice
visa-vis each writ petitioner before it, having regard to the equities interplaying in each
and to the regulation of its discretion keeping in view host of other factors which weigh
with the High Court to deny, grant or mould relief even when illegalities in procedure
keep staring. Thus for the view afore-expressed, we allow these appeals, set aside the
impugned orders of the High Court and remit all these matters back to it with the request
that though it may take them up as a batch, it may give individual attention to each case,
view the illegalities pointed out by the writ petitioner in their right perspective having
regard to the time factor and confine the relief, if due, to him separately. We shall not be
taken to have controlled the discretion of the High Court in administering individualised
justice and amongst others it may, with the co-operation of the Society and of the State
Government, as also the writ petitioner examine the possibility of an equitable solution so
that the fist of law and the discretion of the Court do not hurt unbearably. We thus remit
the matters to the High Court without any order as to costs."
The High Court pursuant to the said direction had passed an order dated 20-6-2001
directing release of 12.9603 acres of land. Claim in respect of the rest of the lands were
rejected and the District Magistrate Patna was directed to identify the lands and deliver
possession thereof to the petitioner-society, if necessary, after the demolition of the
constructions made thereon.
In the meanwhile, several transactions were made. Several constructions, some of which
were totally illegal, came up in some portions of the acquired lands.
One Ashish Sahkari Grih Nirman Samiti preferred an appeal thereagainst before this
Court upon obtaining special leave being Civil Appeal No. 1357 of 2003. By a judgment
and order dated 18-8-2004, this Court further released 17.68 acres of land in favour of
various contenders directing :
"The remaining available land, shall be allotted to the Bihar State Finance Service House
Construction Co-operative Society for whose benefit the acquisition of land was made.
This Society is liable to pay compensation amount as may be determined by competent
authorities/Courts in respect of the land to be allotted to them as stated above.
The Collector or the authorized officer shall complete the acquisition proceedings in all
respects and hand over possession to the parties in terms afore-stated within a period of
four months from today.
The impugned order of the High Court shall stand modified to the extent indicated above.
In all other respects, the impugned order shall remain undisturbed.
This order does not preclude the competent authority (Patna Regional Development
Authority) to proceed in accordance with law with regard to the constructions already
made, if they are not in accordance with law. Further, the construction to be made in the
area to be allotted, as stated above, by the parties shall be in accordance with the planned
development after obtaining necessary permissions from the competent authorities. The
appeals are disposed of in the above terms."
5. Allegedly, the said order was not complied with.
6. Although the Patna Regional Development Authority (PRDA) was not a party to the
appeal, it was called upon to proceed in accordance with law as regards constructions
already made in violation of the extant statute. It was furthermore directed that the
constructions in the areas be allowed to be made only in terms of the development plan
and upon obtaining necessary permission from the competent authorities. PRADA or
other authorities of the State of Bihar allegedly did not comply with the said directions.
Several new constructions were made in total disregard of the statutory provisions.
7. When the time granted by this Court in the aforementioned order expired, a notice was
issued. An affidavit was affirmed by one Shri Sudhir Kumar, the then Collector of Patna,
stating :
"The field survey work was completed in the presence of Secretary and Chairman of
applicant's society.
It is relevant to mention here that the delivery of possession was given (under Section 16
of L.A. Act) on 49.4525 acres, the Hon'ble Apex Court exempted 12.68 acres in favour of
appellants for road and house sites and 5.00 acres in favour of appellants-cum-Land
Owners. The possession is to be restored in favour of applicant Society on
@page-SC1978
(49.4545-17.68) i.e. 31,7725 acres.
20. On the spot, the Hon. Secretary, Bihar Finance Services Housing Co-operative
Societies Mr. Arun Kumar Sinha and Chairman, Mr. S. P. Tiwari were asked to receive re-
possession of 22.12 acres vacant land. They refused to take possession and asked to hand
over the entire land in a single block at a time, after demolishing the entire building
existing on it."
8. A direction was issued on 7-4-2006 by this Court issuing notice to the PRDA.
9. The total area of the lands acquired for the petitioner-society, as noticed hereinbefore,
was 59.94 acres of land. According to the petitioner, although it was entitled to be given
possession of about 31.7725 acres of land, possession of, however, only 9.99 acres was
delivered to it.
10. An affidavit was also filed by PRDA on 10-7-2006 assuring this Court that it would
carry out each and every direction of this Court.
However, when the matter came up before this Court on 28-8-2006, this Court recorded :
"Mr. Rakesh Dwivedi, learned senior counsel for the State made statement at the bar that
responsible officer of the concerned department would be writing a letter to the petitioner
offering certain lands to him which are lying vacant. Let it be so done within two weeks
from today.
It may be mentioned that in the letter, area of land which will be offered, shall also be
enumerated."
However, the said assurance allegedly was also not acted upon.
On 2/3-2-2007, possession of an area of 5.91775 acres of land was handed over to the
petitioner-society.
A controversy, however, was raised that the petitioner-society was only entitled to
18.8124 acres of land.
11. We may notice that keeping in view the controversy between the parties, a survey was
directed to be conducted by an order dated 30-8-2007 stating :
"Mr. Ashok Dubey, Executive Engineer, Patna Municipal Corporation together with Mr.
Rajesh Kumar, ADLAO shall visit the lands in question and, if necessary, appoint a
competent surveyor to find out the extent of the lands in respect of which possession had
not been handed over to the petitioner-society together with other requisite details.
For the aforementioned purpose, Mr. Rakesh Dwivedi, learned senior counsel appearing
on behalf of the State of Bihar has handed over a compilation of the documents, inter alia,
consisting of the Notification under Section 4 of the Land Acquisition Act and declaration
under Section 6 thereof as also the judgment passed by the Patna High Court from time to
time and also the judgment passed by this Court as to ascertain the area which is required
to be handed over in favour of the petitioner-Society.
Mr. Srivastava, learned senior counsel appearing on behalf of the petitioner-Society states
that Mr. S. P. Tewary, President, Bihar Finance Housing Co-operative Society shall render
all cooperation to the aforementioned officers.
Mr. Ashok Kumar Dubey and Mr. Rajesh Kumar together with Mr. S. P. Tewary may visit
the lands in question within ten days from date.
After identification of the lands, the aforementioned two officers shall also hear Mr.
Tewary, who may produce all the requisite documents for the purpose of finding out as to
the exact extent of the lands which was required to be handed over by the alleged
contemnor in favour of the petitioner-Society.
Patna Municipal Corporation, which is the successor of the Patna Regional Development
Authority, shall initiate proceedings, if not already initiated as against the persons who
had made encroachment or who had not constructed the building in terms of the Patna
Development Authority Act and/or the Rules framed thereunder.
Mr. Ashok Kumar Dubey and Mr. Rajesh Kumar shall file a report to this Court within
six weeks."
12. Pursuant to the said order, a survey was conducted wherein it was recorded :
"9. After taking into consideration the areas released by the Hon'ble Patna High Court in
CWJC No. 2755/1988 etc. etc. dated 20-6-2001 (as contained in paragraph 34) and this
Hon'ble Court in Civil Appeal No. 1357/2003, dated 18-8-2004, the petitioner-Society is
entilted to possession of 18.26695 acres. The balance area of 7.22019 acres is required to
be given to it."
It was further stated :
@page-SC1979
"12. Pursuant to the Survey and review of the plots released by the Hon'ble Patna High
Court and this Hon'ble Court and appraisal of the plots which were handed over to the
petitioner society, 26 plots can be considered for carving out the land which could be
handed over to the petitioner society. These are plot Nos. 108, 173, 185, 186, 187, 188,
189, 201, 204, 205, 206, 209, 216, 217, 221, 224, 226, 227, 228, 229, 231, 234, 237, 238,
240 and 246. Out of these plots, an area of 7.22019 acres can be carved out and handed
over to the petitioner-society, in full compliance of the directions of this Hon'ble Court."
13. From a perusal of the said survey report, it is evident that 25.4871 acres of land were
to be handed over to the petitioner. Such lands were to be handed over upon demolition
of the structures of the plot numbers mentioned in paragraph 12 thereof. Tidy nature of
the development of the area is also accepted.
14. Mr. Rakesh Dwivedi, learned senior counsel appearing on behalf of the State of Bihar
submitted that the aforementioned survey report would solve the entire dispute and if the
same is acted upon, no dis-satisfaction would be caused to any of the parties.
15. Mr. A. K. Srivastava, learned senior counsel appearing on behalf of the petitioner,
however, would draw our attention to Sr. No. 4 of the Chart contained in the report which
reads as under :
Case No. Name of Party Plot No. Area Area Date of purchase
Remarks
* *** *** *** ***
4. CWJC 93/84 Pharmaceutical Co. Op. House Consl. 220 Part 2.82
Acres 22K, 4D 2.82.000
0.69374 1/5/78 and 2/8/78 Purchased by Society 22K and 4D by members
directly"
16. The learned counsel contends that plot No. 220 belonging to the Pharmaceutical Co-
operative Housing Construction which was the writ petitioner before the Patna High
Court in Writ Petition No. 93 of 1984 was the owner of 24 acres of land. However, by
mistake, apart from the land to which it was found entitled to, viz, 22 K, 4 D, it had
wrongly been mentioned that it was further entitled to an area of 2.82 acres, which is
evidently a mistake.
17. Mr. Nagendra Rai, learned senior counsel appearing on behalf of the impleaded
parties, on the other hand, would raise a contention that having regard to the fact that the
declaration issued under Section 6 of the Act was set aside by the Patna High Court as far
back as the year 1990 and the applicants having raised constructions over small areas,
they would suffer irreparable injuries if the judgment of this Court is directed to be
implemented. It was contended that the members of the petitioner-Society are owners of
houses and some of them have moved out of Patna and in particular, Jharkhand after its
creation.
18. The judgment and order of the Patna High Court setting aside the declaration under
Section 6 of the Act was set aside by this Court. It issued certain directions. Such
directions were issued not in presence of the State of Bihar but also in presence of those
who had objected to the acquisition proceedings and filed writ applications, before the
Patna High Court. The claim made by each one of them had been taken into
consideration. If the applicants are purchasers of lands pendent lite which was subject-
matter of different proceedings before the Patna High Court as also this Court, they are
also bound thereby.
It is difficult to accept the contention of the learned counsel that, in view of the change in
the situation, viz., creation of the State of Jharkhand, some of the members ceased to be
the members of the society itself. Bifurcation of the State of Bihar has nothing to do with
continuation of the membership of the society which is an independent juristic person.
19. Lands have been acquired in terms of the proceedings. Validity of the said
proceedings has been upheld by this Court. The amount of compensation has been
deposited. Awards have been made. The Court can at this stage neither go behind the
awards nor various orders passed by this Court.
20. PRDA is a statutory authority. It has been created by a statute. It was responsible for
planned development of the city.
@page-SC1980
For the said purpose, it was under a statutory obligation to grant sanction of plans for
construction of buildings. If somebody has made constructions without obtaining any
sanction, he must face the consequences therefor.
It is, having regard to the purport and object for which such Acts are enacted, idle to
contend that no action should be taken against them only because they have constructed
their houses long back. Such statutes also subserve promotion and protection of ecology
which is one of the foremost needs of the society.
In Bombay Dyeing and Mfg. Co. Ltd. v. Bombay Environmental Action Group and Ors.
(2006) 3 SCC 434, this Court observed : 2006 AIR SCW 1392
".............The development of the doctrine of sustainable development indeed is a

welcome feature but while emphasizing the need of ecological impact, a delicate balance
between it and the necessity for development must be struck. Whereas it is not possible to
ignore inter-generational interest, it is also not possible to ignore the dire need which the
society urgently requires."
Almost a similar question came up for consideration before this Court in M. I. Builders
Pvt. Ltd. v. Radhey Shyam Sahu and Others [(1999) 6 SCC 464] wherein this Court upon
considering the question from various angles directed : 1999 AIR SCW 2619
"82. We direct as under :

1. Blocks 1, 2 and 4 of the underground shopping complex shall be dismantled and
demolished and on these places the park shall be restored to its original shape.
2. In Block 3 partition walls and if necessary columns in the upper basement shall be
removed and this upper basement shall be converted into a parking lot. Flooring should
be laid at the lower basement level built to be used as a parking lot. Ramp shall be
constructed adjacent to Block 3 to go to upper and lower basement levels for the purpose
of parking of vehicles. Further to make Block 3 functional as a separate unit walls shall
be constructed between Block 2 and Block 3 and also Block 3 and Block 4.
3. Dismantling and demolishing of these structures in Blocks 1, 2 and 4 and putting
Block 3 into operation for parking shall be done by the Mahapalika at its own cost.
Necessary services like sanitation, electricity etc. in Block 3 shall be provided by the
Mahapalika.
4. The Mahapalika shall be responsible for maintaining the park and Block 3 for parking
purposes in a proper and efficient manner.
5. M.I. Builders Pvt. Ltd., the appellant, is divested of any right, title or interest in the
structure built by it under or over the park. It shall have no claim whichsoever against the
Mahapalika or against any other person or authority.
6. Block 3 shall vest in the Mahapalika free from all encumbrances. Licence of M.I.
Builders to enter into the park and the structure built therein is cancelled of which
possession is restored to the Mahapalika with immediate effect. No obstruction or
hindrance shall be caused to the Mahapalika by anyone in discharge of its functions as
directed by this order.
7. Restoration of the park and operation of Block 3 for parking purposes shall be
completed by the Mahapalika within a period of 12 months from today and the report
filed in the Registry of this Court."
21
. Parameters of the jurisdiction of this Court under the Contempt of Courts Act, 1970 are
well-settled. {See Maruti Udyog Limited v. Mahinder C. Mehta and Ors. [2007 (1) Scale
750]} 2007 AIR SCW 6829
While dealing with such an application, the Court is concerned primarily with :
(i) whether the order passed by it has attained finality or not;
(ii) whether the same is complied with or not.
22
. While exercising the said jurisdiction this Court does not intend to reopen the issues
which could have been raised in the original proceeding nor shall it embark upon other
questions including the plea of equities which could fall for consideration only in the
original proceedings. The Court is not concerned with as to whether the original order
was right or wrong. The Court must not take adifferent view or traverse beyond the same.
It cannot ordinarily give an additional direction or delete a direction issued. In short, it
will not do anything which would amount to exercise of its review jurisdiction. [See
Director of Education, Uttaranchal and others v. Ved Prakash Joshi and others, AIR 2005
SC 3200 and K. G. 2005 AIR SCW 3759
2000 AIR SCW 4675
@page-SC1981
Derasari and another v. Union of India and others, (2001) 10 SCC 496].
23
. This Court while exercising its jurisdiction under the Contempt of Courts Act or Article
129 of the Constitution of India must strive to give effect to the directions issued by this
Court. When the claim of the parties had been adjudicated upon and has attained finality,
it is not open for any party to go behind the said orders and seek to take away and/or
truncate the effect thereof. [See T. R. Dhananjaya v. J. Vasudevan, (1995) 5 SCC 619].
1995 AIR SCW 4086
24
. In Prithawi Nath Ram v. State of Jharkhand and others [(2004) 7 SCC 261], this Court
"5. While dealing with an application for contempt, the Court is really concerned with the
question whether the earlier decision which has received its finality had been complied
with or not. It would not be permissible for a Court to examine the correctness of the
earlier decision which had not been assailed and to take a view different than what was
taken in the earlier decision.
"6. On the question of impossibility to carry out the direction, the views expressed in T.
R. Dhananjaya v. J. Vasudevan need to be noted. It was held that when the claim inter se
had been adjudicated and had attained finality, it is not open to the respondent to go
behind the orders and truncate the effect thereof by hovering over the rules to get around
the result, to legitimise legal alibi to circumvent the order passed by a Court."
Moreover undertakings had been given by the respondents before this Court from time to
time. What they have done or intend to do is only the compliance thereof. The petitioner
had to wait for a long time to get the fruits of requisition made by it for acquisition of
land. The lands were acquired in 1983 on the basis of the requisition made by it in 1973.
We, therefore, are not in a position to accede to the contention of Mr. Rai.
25. Sofar as submission of Mr. Srivastava that a clerical or typographical error has crept
in the judgment of the Patna High Court is concerned, we are of the opinion that it is not
for this Court to direct any correction therein.
For the aforementioned purpose, an appropriate application may be filed before the Patna
High Court. The High Court alone would be entitled to rectify the mistake committed by
it, if any. Either the State of Bihar or the applicant who are the beneficiaries of this order
may file an appropriate application therefor. If and when such an application is filed, the
High Court, we are sure, would pass an appropriate order in terms of the well known
principle actus curiae neminem gravabit.
In the event, the High Court thinks it fit and proper to rectify the mistake, if any,
indisputably the said area shall also be allotted to the petitioner.
26. The functions of the PRDA are now being carried out by Patna Municipal
Corporation. The statutory authority, thus, keeping in view the purport and object for
which it has been created, in our opinion, must take appropriate action in accordance with
law. As indicated hereinbefore, PRDA, the predecessor of Patna Municipal Corporation
has given assurance before this Court. We hope it shall implement the same as
expeditiously as possible.
27. The petition is disposed of accordingly with the aforementioned directions and
observations.
Order accordingly.
AIR 2008 SUPREME COURT 1981 "Karnal Improvement Trust v. Sumitra Devi"
Civil Appeal Nos. 5782 with 5670, 5778, 5779, 5804 and 6566 of 2002, D/- 24 -3 -2008.
Karnal Improvement Trust v. Smt. Sumitra Devi (dead) by LRs and Ors.
Land Acquisition Act (1 of 1894), S.23(1-A), S.28 - ACQUISITION OF LAND -
Solatium and additional benefits - Entitlement - Relevant date is date of award of
Collector - Award made by Collector earlier to relevant date i.e. 30-04-1982
compensation not also enhanced in reference - Awardee not entitled to additional
compensation u/S.23(1-A) and benefits u/S.28.
C. W. P. No. 6035 of 1998, D/-29-01-2002 (P and H), Reversed. AIR 1990 SC 981 : 2002
AIR SCW 852 and 1995 AIR SCW 4426, Foll. (Para 9)
@page-SC1982
2002 AIR SCW 852 : AIR 2002 SC 1105 (Foll) 3, 7
1995 AIR SCW 4426 (Foll) 4, 8
AIR 1990 SC 981 (Foll) 3, 6, 7, 9
Seeraj Bagga, Mrs. Sureshta Bagga, for Appellant; Debasls Misra, C.K. Bansal, Ashu
Bhatla, for Respondents.
* C.W.P. No.6035 of 1998, D/- 29-1-2002 (P and H).
Judgement
Dr. ARIJIT PASAYAT, J. :- These appeals have an identical point and are therefore
disposed of by this common judgment.
2. Challenge in each case is to the final judgment and order dated 29.1.2002 passed by a
Division Bench of the Punjab and Haryana High Court. Writ Petitions filed by the
appellant in each case were dismissed. Challenge in the Writ Petitions was to the award
of solatium at the rate of 30% of the market value and other amounts permissible under
Sections 23(1-A) and 28 of the Land Acquisition Act, 1894 (in short the 'Act'). According
to the appellant the benefits were not available to the respondents because of the specific
provisions of Section 30(1) of the Land Acquisition (Amendment) Act, 1984 (in short the
'Amendment Act'). The High Court reiving on some earlier judgments dismissed the writ
petitions.
3
. Learned counsel for the appellant submitted that in view of the decision of this Court in
Union of India and Ors. v. Filip Tiago De Gama of Vedem Vasco De Gama (1990 (1)
SCC 277) and Kashiben Bhikabai and Ors. v. Special Land Acquisition Officer and Anr.
(2002 (2) SCC 605) no amount was payable as provisions of Section 23(1-A) are not
applicable. Reference is also made to Section 30(1) of the Amendment Act for the
purpose which reads as follows : AIR 1990 SC 981
2002 AIR SCW 852
"30. Transitional provisions. - (1) The provisions of sub-section (1-A) of Section 23 of
the principal Act, as inserted by clause (a) of Section 15 of this Act, shall apply, and shall
be deemed to have applied, also to, and in relation to, -
(a) every proceeding for the acquisition of any land under the principal Act pending on
the 30th day of April, 1982 [the date of introduction of the Land Acquisition
(Amendment) Bill, 1982, in the House of the People, in which no award has been made
by the Collector before that date;
(b) every proceeding for the acquisition of any land under the principal Act commenced
after that date, whether or not an award has been made by the Collector before the date of
commencement of this Act.
(2) xxx xxx xxx
(3) xxx xxx xxx."
4
. It is pointed out that since there was no enhancement of compensation in excess of the
award of the Collector, the benefits under Section 28 of the Act are also not applicable.
Reliance is placed on The State of Punjab and Anr. v. Jagir Singh etc. (JT 1995 (9) SC 1).
1995 AIR SCW 4426
5. Learned counsel for the respondents on the other hand supported the Judgment of the
High Court.
6
. In Filip Tiago's case (supra) it was inter-alia observed at para 21 as follows : AIR
1990 SC 981, (Para 20)
"Entitlement of additional amount provided under Section 23(1-A) depends upon

pendency of acquisition proceedings as on April 30, 1982 or commencement of
acquisition proceedings after that date. Section 30 sub-section (1)(a) provides that
additional amount provided under Section 23(1-A) shall be applicable to acquisition
proceedings pending before the Collector as on April 30, 1982 in which he has not made
the award before that date. If the Collector has made the award before that date then, that
additional amount cannot be awarded. Section 30, sub-section (1)(b) provides that
Section 23(1-A) shall be applicable to every acquisition proceedings commenced after
April 30, 1982 irrespective of the fact whether the Collector has made an award or not
before September 24, 1984. The final point to note is that Section 30 sub-section (1) does
not refer to court award and the court award is used only in Section 30 sub-section (2)."
7
. Similarly, in Kashiben's case (supra) it was observed as follows : 2002 AIR SCW 852,
(Para 17)
"17. Counsel appearing for the claimants contended that the claimants would be entitled
to an additional compensation @ 12% as provided under Section 23(1-A) of the Act. This
contention cannot be accepted in view of a Bench decision of this Court in Union of India
v. Filip Tiago De Gama of Vedem Vasco De Gama which held that additional
compensation under Section 23(1-A) of the Act would not be available to a claimant in
which the acquisition proceedings commenced AIR 1990 SC 981, (Para 20)
@page-SC1983
and the award was made by the Collector prior to 30-4-1982. If the Collector made the
award before 30-4-1982 then the additional amount under Section 23(1-A) cannot be
awarded. The pendency of the acquisition proceedings on 30-4-1982 before the Collector
was essential for attracting the benefit under Section 23(1-A) of the Act. It was held (SCC
pp. 286-87, para 21) :
'21. Entitlement of additional amount provided under Section 23(1-A) depends upon
pendency of acquisition proceedings as on 30-4-1982 or commencement of acquisition
proceedings after that date. Section 30 sub-section (1)(a) provides that additional amount
provided under Section 23(1-A) shall be applicable to acquisition proceedings pending
before the Collector as on 30-4-1982 in which he has not made the award before that
date. If the Collector has made the award before that date then, that additional amount
cannot be awarded. Section 30 sub-section (l)(b) provides that Section 23(1-A) shall be
applicable to every acquisition proceedings commenced after 30-4-1982 irrespective of
the fact whether the Collector has made an award or not before 24-9-1984. The final
point to note is that Section 30 sub-section (1) does not refer to court award and the court
award is used only in Section 30 sub-section (2).'
No judgment taking a contrary view to the above-referred case was cited before us.
Accordingly, it is held that the appellants would not be entitled to the additional
compensation provided under Section 23(1-A) of the Act."
8
. In Jagir's case (supra) it was observed as follows : 1995 AIR SCW 4426
"It would thus be seen that the legislative animation is clear that the Civil Court on
reference under Section 18, or the High Court or in some States District Judge exercising
appellate power under section 54 or civil court under Section 26, as the case may be,
awards compensation in excess of the amount awarded by the Collector, then it gets
jurisdiction and power to award additional benefits envisaged in sub-section (I-A) of
section 23, sub-section (2) of Section 23 and Section 28 of the Act. In other words,
enhancement of the compensation in excess of the award of the Collector under Section
11 is a condition precedent to exercise the power to award statutory additional amounts
envisaged under the aforesaid respective provisions on the excess compensation. If the
High Court dismisses the appeal confirming the award of the Collector or that of the civil
court, then it has no jurisdiction and power to award additional statutory amount under
the respective provisions as amended under the Amendment Act 68 of 1984."
9
. From a reading of the orders passed by the Reference Court it is clear that there was no
enhancement of the rates as fixed by the Land Acquisition Collector. That being so,
benefits under Section 28 of the Act are not available to the respondents. The award was
passed on 7.11.1972. The Reference Court decided the case on 18.10.1997. That will not
change the position because as noted in Filip Tlago's case (supra) the relevant date is the
date of award by the Collector under the Act. The High Court, therefore, is clearly wrong
in dismissing the Writ Petition filed by the appellant. The inevitable conclusion is
thatrespondents are not entitled to solatium under Section 23(1-A) of the Act and
similarly the benefits under Section 28 of the Act. AIR 1990 SC 981
10. The appeals are allowed but with no order as to costs.

Appeal allowed.
AIR 2008 SUPREME COURT 1983 "New Okhla Industrial Development Authority v.
Arvind Sonekar"
New Okhla Industrial Development Authority and Anr. v. Arvind Sonekar.
Monopolies and Restrictive Trade Practices Act (54 of 1969), S.2(o)(ii), S.36A -
MONOPOLIES AND RESTRICTIVE TRADE PRACTICES - UNFAIR TRADE
PRACTICE - DEVELOPMENT AUTHORITY - ALLOTMENT OF PREMISES -
CONTRACT - Unfair trade practice - Allegation of discriminatory treatment against
Development Authority (D.A.) - D. A. offering plots for nursing homes and clinics -
Clear stipulation in policy that rate prevalent on date of allotment would apply - Offer of
allotment made to respondent not accepted by him - Amount of pre deposit refunded and
accepted by respondent without objection - Fresh allotment made to respondent 3 years
after earlier offer - Rate clearly specified - Accepted by respondent and lease executed -
Complaint of charging higher rate than earlier offer - Not tenable since
@page-SC1984
earlier offer did not culminate in concluded contract.
Contract Act (9 of 1872), S.2(b), S.10. (Paras 7, 8, 9, 10, 11)
2006 AIR SCW 1943 : AIR 2006 SC 1758 : 2006 (3) ALJ 494 (Rel. on) 9
Rabindra Kumar, for Appellants; L.K. Pandey, for Respondent.
Judgement
1. TARUN CHATTERJEE, J. :-This appeal by way of special leave is filed against an
order dated 27th of March, 2001 passed by the Monopolies and Restrictive Trade
Practices Commission (in short 'the MRTP Commission') in Restrictive Trade Practices
Enquiry No. 82/97 by which the MRTP Commission has directed the appellants
(hereinafter referred to as 'the Noida Authorities') to refund to the respondent the excess
amount charged from him for allotment of a plot within 6 months from the date of the
order passed by the MRTP Commission. Feeling aggrieved, the Noida Authorities have
come up by way of a special leave petition, which on grant of leave was heard in the
presence of the learned counsel for the parties.
2. In 1993, applications for registration for allotment of plots to institutions including
Nursing Homes and Hospitals were invited by a general scheme by the Noida Authorities.
In the scheme itself, it was specifically mentioned that the rate shall be the one as
prevailing at the time of allotment. The registration money to be deposited along with the
application in case of a Nursing Home was Rs. 1,00,000/-. Pursuant to such
advertisement for allotment of plots by the Noida authorities, the respondent submitted an
application for allotment along with the registration money. By a letter dated 21st of
December, 1993 issued by the Noida authorities to the respondent, the respondent was
required to deposit certain amount within seven days so that steps could be taken to make
the allotment. However, the respondent made no payment pursuant to the letter dated 21st
of December, 1993. The Town Planning Department of the Noida authorities, while
scrutinizing the proposed site did not clear the same and accordingly, by a letter dated
13th of January, 1995, the entire amount deposited as registration money with the Noida
authorities was refunded. It is an admitted position that the refund was accepted by the
respondent by encashing the account payee cheque without any reservation.
3. On 20th of April, 1996, on the basis of a request made by the respondent in his letter
dated 29th of January, 1996, a fresh allotment letter was issued and in this allotment
letter, it was specifically made clear that the allotment rate would be Rs. 3600/-per sq.
mtr. From this letter, it would also be clear that the allotment money was required to be
deposited within sixty days and the balance 80% in sixteen equal half yearly installments
together with interest. The respondent by his letter dated 6th of June, 1996 deposited 20%
of the allotment money of Rs.3,61,800/- by a pay order. This deposit confirmed that the
rate of allotment was Rs.3600/- per sq. mtr., i.e. the rate offered by the Noida authorities
stood accepted. On 16th of August, 1996, the respondent submitted an affidavit before the
Noida authorities stating, inter alia, as under :
(i) That the allotment of Nursing Home Plot No.243, Block A, Sector 31 has been made
in favour of the respondent for Rs. 18,09,000/- only. Out of the said amount, 20% had
been deposited and the respondent had to deposit the balance 80% in sixteen half yearly
installments.
(ii) Omitted (because not required in this case).
(iii) That the respondent had read and understood all the terms and conditions of
allotment and the respondent shall comply with the terms and conditions of allotment.
A plain reading of this undertaking filed by way of an affidavit before the Noida
authorities would indicate that the respondent had accepted the terms and conditions of
the offer letter, including the condition regarding the rate at which the allotment was to be
made.
4. After the affidavit was filed by the respondent, on 17th of August, 1996, a lease deed
was executed by the Noida authorities in favour of the respondent. This lease deed also
contained the terms and conditions of allotment, more particularly the rate of the land, i.e.
Rs.3600/- per sq. mtr. After executing the lease deed, accepting the rate of the land at
Rs.3600/- per sq. mtr. and depositing the consideration money at the aforesaid rate with
the Noida authorities, a petition was filed before the MRTP Commission by the
respondent against the Noida authorities under Sections 10(a)(i)(1), 36A and 13 of the
MRTP Act praying for instituting
@page-SC1985
an enquiry and thereafter passing the cease and desist order and demanding the excess
amount paid by him. In the said petition, the respondent had also alleged that he was
discriminated inasmuch as one Dr. Bhardwaj who was allotted a bigger plot in 1997 was
charged the rate that prevailed in the year 1993. Therefore, the respondent had prayed
that the benefit of the old rate i.e. Rs.2750/- per sq.mtr. should be extended to the
respondent also as it was done in the case of Dr. Bhardwaj.
5. An affidavit of evidence was filed by the Noida authorities in which it was brought on
record that as per the terms of the scheme, the rate applicable was the one prevailing at
the time of issuance of the allotment. In the affidavit of evidence, it was alleged by the
Noida authorities that the letter dated 21st of December, 1993 was only a proposal for
allotment and that the said letter could not be treated as an allotment letter. It was further
alleged that it was only in April 1996 that the allotment was first made by them.
Accordingly, they alleged that the question of applying the old rate i.e. the rate of the year
1993 could not arise at all. The MRTP Commission by the impugned order held that the
action of the Noida authorities directing the respondent to pay at the rate prevailing in the
year 1996 was discriminatory for the simple reason that different rates were charged from
the applicants who were similarly placed and deserved similar treatment. Therefore, it
was held that this action of the Noida authorities was a "restrictive trade practice" within
the meaning of Section 2(o)(ii) of the MRTP Act. It was further held by the MRTP
Commission that the offer of the Noida authorities to allot a plot in the year 1993 became
a concluded contract between the Noida authorities and the respondent as the respondent
had accepted the offer of the Noida Authorities and in pursuance thereof, an amount of
Rs. 1,00,000/- was deposited with them within the time specified in the offer letter.
Accordingly, it was held that the same, being a concluded contract, could not be
terminated unilaterally and without the consent of the other party to the contract. It was
further held by the MRTP Commission in the impugned order that in the facts and
circumstances of the case, the doctrine of legitimate expectation should be brought into
force because the respondent had legitimate expectation from the Noida authorities to
implement the public policy laid down for the allotment of sites for nursing homes and
clinic fairly and justly and accordingly, the action of the Noida authorites had fallen
within the meaning of "unfair trade practices" as provided in Section 36A of the MRTP
Act. Accordingly, the Noida authorities were directed by the MRTP Commission to
refund the excess amount paid by the respondent, that is to say the difference of money
between Rs. 3600/- per sq.mtr. and Rs. 2750/- per sq.mtr., to him. It is this order of the
MRTP Commission, which is under challenge before us.
6. Having heard the learned counsel for the parties and after examining the impugned
order of the MRTP Commission and other materials on record, we are unable to sustain
the impugned order of the MRTP Commission for the reasons stated hereinafter. It is true
that in the year 1993, a letter was issued by the Noida authorities, offering a plot of land
for starting a nursing home, to the respondent in respect of which the consideration
money was fixed at Rs. 2750/- per sq.mtr. It is an admitted position that this offer of the
Noida authorities was not accepted by the respondent as we find from the record that the
amount under the offer letter was not deposited by the respondent. On the other hand, the
Noida authorities also could not allot the plot offered in the said letter of 1993 and the
amount of Rs. 1,00,000/-, which was deposited by the respondent with them was
refunded by account payee cheque and the same was duly encashed by the respondent
without raising any objection. Therefore, the respondent, having accepted the refunded
money without raising any objection could not turn around and say that the offer letter of
1993 was an allotment letter and therefore, it was a concluded contract between the
parties. Furthermore, a perusal of the said letter would not show that it was an allotment
letter. In our view, by this letter, a plot of land was only offered to the respondent and
there is nothing on record to show that the said offer letter had culminated into an
allotment letter. Therefore, in view of the discussions made herein above, it is difficult to
conceive that the earlier offer letter @ Rs. 2750/- per sq. mtr. had culminated into a
concluded contract and the lease deed ought to have been executed @ Rs. 2750/-per
sq.mtr. as that was the offer of the Noida authorites in the year 1993. That apart, after
@page-SC1986
accepting the rate of the land at Rs. 3600/- per sq. mtr. and executing the lease deed at the
accepted rate and after having already paid in terms of the offer letter, it is not open to the
respondent now to allege that in view of the earlier concluded contract, he was liable to
pay @ Rs.2750/- per sq. mtr. in respect of the plot in question and therefore, the Noida
authorities were liable to refund the excess amount paid by him. It will not be out of place
to mention here that in the scheme itself, one of the conditions was that the rate would be
charged at the prevailing market price on the date of allotment of the plot in question
which, in this case was done only in the month of April, 1996 and not in the month of
December, 1993. In view of the foregoing reasons, it would be clear that the offer letter
of 1993 for allotment of a plot made by the Noida authorities could not be treated as a
concluded contract and therefore, it was not at all an allotment letter.
7. We are also of the view that the question of acceptance of the proposal of allotment did
not arise because the entire money which was deposited with the Noida authorities in the
year 1993 was admittedly, as noted herein earlier, refunded by them and the same was
also encashed by the respondent without raising any objection. Secondly, the allotment
that was made in the year 1996 was @ Rs.3600/- per sq.mtr. which was accepted by the
respondent on deposit of the money. In our view, since the contract was concluded by
execution of the lease deed from which it appears that the rate was to be given as per the
market value of the plot on the date of allotment, it was not open to the respondent to
approach the MRTP Commission and say that the allotment must be made at the old rate,
i.e. @ Rs.2750/-per sq.mtr. and not @ Rs.3600/- per sq. mtr. We are, therefore, unable to
accept the impugned order of the MRTP Commission on this count.
8. A further submission was made by the learned counsel for the respondent that the
respondent was discriminated against because one Dr. Bhardwaj was allotted a plot of
500 sq. mtr. in 1997 @ Rs.2750/- per sq. mtr. which rate was also offered by the Noida
authorities to the respondent in the year 1993. In our view, this submission of the
respondent cannot also be accepted. In the year 1997, Dr. Bhardwaj was given a bigger
plot of 800 sq.mtr. in place of the old plot of 500 sq. mtr. at the same rate of Rs.2750/-
sq.mtr. but it is also an admitted position that for the excess area of 300 sq. mtrs., the
market rate on the date of allotment was charged from him i.e. Rs. 3600/- per sq. mtr. was
charged for the excess area of 300 sq. mtrs. That apart, it appears from the record that the
fact of discrimination to the respondent in respect of allotment of plot for the Nursing
Home was not even raised in evidence by the respondent. Such being the position and in
view of the concluded contract after execution of the lease deed, it must be held that the
respondent had agreed to pay at the rate prevailing on the date of offering the plot in
question i.e. @ Rs. 3600/ - per sq.mtr. and in fact the respondent had even deposited the
amount @ Rs.3600/- per sq.mtr.
9
. In Chief Administrator, Puda and Anr. vs. Shabnam Virk(Mrs.) [(2006) 4 SCC 74], this
court had taken into consideration an affidavit filed by the respondent and observed at
paragraph 14 as follows :- 2006 AIR SCW 1943
"It is to be noted that the respondent herself had accepted in the undertaking that she
accepted the allotment of the house andundertook to abide by all the terms and conditions
of the allotment letter. It is not in dispute that in the allotment letter the figure as
demanded has been reflected. That being so, the respondent was liable to pay the amount
as stipulated in the allotment letter."
In so far as the present case is concerned, as noted herein earlier, there is no dispute that
the respondent had in fact filed an affidavit clearly accepting the amount shown as the
price of the plot in question and he had also given an undertaking to abide by the terms
and conditions of the allotment letter. It is, therefore, not open to the respondent to claim
the rate prevailing in the year 1993.
10. Before parting with this judgment, we may deal with the doctrine of legitimate
expectation as was the ground taken by the MRTP Commission to allow the petition of
the respondent. According to the respondent, this doctrine comes into play because the
respondent had legitimately expected the Noida authorities to implement the public
policy laid down for the allotment of sites for Nursing Homes and Clinics fairly and
justly. In our view, the doctrine of legitimate
@page-SC1987
expectation, in the facts and circumstances of the present case, cannot at all be applicable.
It is not in dispute that the plot has been allotted by the Noida authorities to implement
the public policy laid down for the allotment of sites for starting nursing homes and
clinics. The only question is that to implement such policy, what should be the rate at
which the allotment of the plot should be made. In view of the discussions made herein
above, we do not feel that the Noida authorities acted either unjustly or in an unfair
manner by charging the rate of Rs. 3600/- per sq. mtrs. Therefore, we do not find any
ground on which we can hold that this doctrine is at all applicable to the facts of this case.
11. For the reasons aforesaid, we are unable to sustain the order of the MRTP
Commission, which was clearly in error in granting relief to the respondent. Accordingly,
the impugned order of the MRTP Commission is set aside and the petition filed before the
MRTP Commission by the respondent stands rejected. The appeal is thus allowed. There
will be no order as to costs.
Appeal allowed.
AIR 2008 SUPREME COURT 1987 "Union of India v. Kashiswar Jana"
(From : Calcutta)*
-2008.
Union of India and Ors. v. Kashiswar Jana.
Freedom Fighters Pension Scheme (1972), Cl.1 - FREEDOM FIGHTER - PENSION -
HIGH COURT - Pension - Entitlement - Claimant entitled to pension from date of older
of High Court allowing his claim. (Para 8)
2007 AIR SCW 4108 (Foll.) 7, 8
(1997) 10 SCC 190 (Ref.) 7
1993 AIR SCW 2508 : AIR 1993 SC 2127 (Ref.) 3, 7
T.S. Doabia, Sr. Advocate, Lata Krishnamurthy, Ashok Kumar Singh, Naresh Kumar
Gaur, Surinder Dutt Sharma, Ms. B. Swaraj, Anil Kumar Tandale, Ms. Sushma Suri, Ms.
Rekha Pandey, Manoj Saxena, Rajnish Singh, Rahul Shukla, T.V. George, N.R.
Choudhary and Somnath Mukherjee, for the Appearing Parties
* W. P. No. 9810 (W) of 2000, D/- 22-3-2005 (Cal.)
Judgement
2. Challenge in this appeal is to the judgment of a learned single Judge of the Calcutta
High Court allowing the Writ Petition filed by the respondent. The controversy lies
within a very narrow compass. The respondent claimed to be a freedom fighter and
claimed freedom fighter's pension. The application in this regard was filed on 28th July,
1981. The application was rejected by the Central Government on 29-1-1993. A Writ
Petition was filed before the Calcutta High Court questioning correctness of the order of
the single Judge. The writ petition was allowed and the present appellants were directed
to release pension to the respondent.
3
. Feeling aggrieved by the said order the Division Bench was moved in a Letters Patent
Appeal which was dismissed. A special leave petition was also filed before this Court
which was rejected as barred by time. The question that arose was the date from which
the respondent was entitled to pension. Appellants released the pension with effect from
4th August, 1993 when the writ petition filed by the respondent was allowed by the
learned single Judge. Respondent claimed pension from the date of filing of the
application. According to him he is entitled to pension from 28-7-1981 when the
application was filed by him. Reference was made to the decision of this Court in M. L.
Bhandari v. Union of India (AIR 1993 SC 2127). 1993 AIR SCW 2508
4. Stand of the present appellants was that since the claim of the respondent could not be
decided till 1993 because of the non co-operative attitude of the State Government
regarding supply of requisite information. In any event, the benefit of doubt was granted
to the respondent and in line with the order passed by the High Court earlier pension was
granted from the date of order i.e. 4th August, 1993. The High Court did not accept the
stand.
5. In support of the appeal learned counsel for the appellant submitted that the view of the
High Court is clearly untenable because the question whether respondent was entitled to
pension and whether he fulfilled the guidelines was under examination. Definite material
was not placed by the State Government and only he was given benefit
@page-SC1988
of doubt and because of the order of the High Court pension was granted to him.
6. Learned counsel for the respondent on the other hand supported the order of the High
Court.
7
. Almost similar issue came up for consideration before this Court in Union of India and
Anr. v. Kaushalaya Devi, 2007 (9) SCC 525), wherein it was inter alia observed as
follows : 2007 AIR SCW 4108
"3. Heard learned counsel for the parties and perused the record. The short question in
this case is whether the freedom fighters pension should be granted to the respondent
from the date of the application or the date of the order granting the pension.
4. It has been held by this Court in Govt. of India v. K. V. Swaminathan that where the
claim is allowed on the basis of benefit of doubt, the pension should be granted not from
the date of the application but from the date of the order.
5. In the present case, we have perused the record and found that it is stated therein that
the claim was allowed on the basis of secondary nature of evidence. In other words, the
claim was not allowed on the basis of jail certificate produced by the claimant but on the
basis of oral statement of some other detenu. Hence, we are of the opinion that the
pension should be granted from the date of the order and not from the date of the
application.
6. Learned counsel for the respondent has relied on the judgment of this Court in Mukund
Lal Bhandari v. Union of India (AIR 1993 SC 2127)1993 AIR SCW 2508
7. In our opinion that decision is distinguishable as it has been stated therein that the
pension cannot be granted from any date prior to the application. In our opinion this does
not mean that it cannot be granted from a date subsequent to the application.
8. For the reasons given above this appeal is allowed. The impugned judgment is set aside
and it is directed that the pension will be granted only from the date of the order for
granting pension and not from the date of the application.
8
. Keeping in view what has been stated by this Court in Kaushalaya Devi's case (supra)
we direct the pension is to be granted from the date of High Court's order i.e. 4-8-1993.
2007 AIR SCW 4108
9. The appeal is allowed to the aforesaid extent without any order as to costs.
Order accordingly.
AIR 2008 SUPREME COURT 1988 "B. S. N. L. Ltd. v. Bhupender Minhas"
(From : 2003 (2) Shim LC 228 (Him Pra))
Civil Appeal No. 2283 with 2284, 2287 and 2286 of 2008 (arising out of SLP (C) No.
4778 with 3232, 6225 and 6307 of 2004), D/- 31 -3 -2008.
B. S. N. L. Ltd. and Anr. v. Bhupender Minhas and Ors.
Constitution of India, Art.14, Art.19(1)(g) - EQUALITY - FREEDOM OF TRADE -
TENDER - Tender - Disqualification clause - Attaching disqualification to near relatives
of all employees of Principal, irrespective of status - Restriction irrational -
Disqualification clause can provide for preference to those, whose near relatives are not
working with Principal.
1996 (37) DRJ 446, Foll. (Paras 11, 12)
2004 AIR SCW 1505 : AIR 2004 SC 1962 10
2000 AIR SCW 351 : AIR 2000 SC 801 9
1996 (37) DRJ 446 (Del.) (Foll.) 6
1994 AIR SCW 3344 : AIR 1996 SC 11 10
Ajit Singh Bawa, Arjun Singh Bawa and S. Thananjayan, for Appellants; Ms. Madhu
Moolchandani, Ashok K. Mahajan and T. Raja, for Respondents.
Judgement
2. These appeals involved identical issues. While two appeals are against the judgment of
the Himachal Pradesh High Court, the other two are against the judgments of the Punjab
and Haryana High Court.
3. The controversy lies in a very narrow compass. Writ petitions were filed by the
respondents in each case questioning correctness of a stipulation in the "Notice Inviting
Tender" (in short 'NIT') containing a disqualification clause which disentitled an
intending tenderer to submit tender whose near relative is working in any of the units of
the appellant-BSNL. According to the writ-petitioners such a prohibition was
impermissible. It was submitted that if the ultimate intention was to ensure that a person
working in the unit will not be able to influence the decision-making process in respect
@page-SC1989
of the tender, the same is irrelevant if the person concerned is holding a post of Class III
or Class IV. The Himachal Pradesh High Court referred to an earlier order passed by a
Division Bench of the High Court in Narinder Kumar v. Union of India and Anr. (C.W.P.
No. 33 of 1995), where a similar stipulation was struck down. Accordingly, the High
Court held that the stand of the respondents in the writ petition with reference to the
communication issued by the Bharat Sanchar Nigam Limited bearing No. 151-08/2002
Oand M/38, dated 11-9-2002 cannot be sustained. It was observed that Rule 4 of
Government of India's CCS (Conduct) Rules, 1964 had no relevance. Accordingly, the
writ petition was allowed by order dated 24-5-2003 in Civil Writ Petition No. 122/2003.
The said decision was followed in Civil Writ Petition No.269(M/B) of 2003 by order
dated 13-8-2003. The Punjab and Haryana High Court has expressed a similar view in
Civil Writ Petition No. 12799 of 2003 by order dated 4-11-2003 and Civil Writ Petition
No. 18439 of 2003 by order dated 9-1-2004.
4. The appellants' stand is that the stipulation is essentially a policy-decision that too in a
contractual matter and the High Court should not have interfered.
5. Respondents submitted that in view of the irrationality, the High Court in each case
was justified in its view.
6. It appears that the Delhi High Court had occasion to deal with a similar issue in S.N.
Engineering Works v. Mahanagar Telephone Nigam Ltd., 1996 (37) DRJ 446. The
conditions which were under consideration of the Delhi High Court were clauses (J) and
(K) of NIT providing as follows :
"(J) The contractor shall not be permitted to tender for works in MTNL (responsible for
award and execution of contracts) in which his near relative is posted as JAO/ AAO/AO
or an officer in any capacity between the grades of S.E. and A.E. both inclusive. He shall
also intimate the names of the persons, who are working with him in any capacity or are
subsequently employed by him, and who are near relatives to any officer in MTNL. Any
breach of this condition by the Contractor would render him liable to be removed from
the approved list of contractors of this department.
(K) The contractor shall give a list of MTNL employees related to him."
9.2 Every tender has to be accompanied by a declaration to be signed by the contractor in
the following pro forma which has a footnote defining the term "near-relative :-
APPENDIX-V (DECLARATION)
I/WE hereby declare that none of my/our relatives are employed in any capacity in any of
the units of M.T.N.L./D.O.T. I/We shall also intimate the names of persons who are
working with us in any capacity or are subsequently employed by us and who are near
relatives to any officer in the M.T.N.L./D.O.T. I/We am/are aware that any breach of this
condition would result in immediate termination of contract/cancellation of the existing
contract/contracts and also forfeiting of my/our security deposit held by MTNL, Delhi.
NOTE : "The term 'near relatives' means wife/husband/parents and grand parents/
children/grand children/brothers/sisters/ uncles/ aunts/cousin and their corresponding
inlaws."
Name of The CONTRACTOR
(CAPACITY in which signing)
Station
Date"
7. It is to be noted that the aforesaid conditions specified the category of the employees to
whom the restrictions applied. Two conditions were stipulated. One is a ban on the
category of officers, while there was a necessity of intimation so far relatives in respect of
other posts. Para 9.2 deals with an undertaking which refers to "any capacity". In para 18
of the judgment it was noted as follows :
"It is pertinent to note that the petitioners are not prohibited from carrying on business
activity of the nature involved in the contracts which they wish to enter with the MTNL.
All that has been said is that MTNL would not deal with such contractors as have their
relations of a defined category serving in the MTNL. The fundamental right to trade or
business of the petitioners is not at all affected. The validity of the restriction so imposed
has to be tested not with reference to clause (6) of Article 19 of the Constitution but on
the anvil of Article 14 of the Constitution. Since entering into the contract is not an
employment the applicability of Article 16 of the Constitution is also not attracted."
The stress was on a defined category.
@page-SC1990
8. The judgment of the Delhi High Court did not relate to BSNL and related to
department of telecommunication. The concerned officials were Junior telecom officers.
9
. In Air India Ltd. v. Cochin International Airport Ltd. and Ors. (AIR 2000 SC 801) it was
observed at para 7 as follows : 2000 AIR SCW 351
"There can be no compulsion or the authority to award the contract in favour of the
private party."
10
. In Directorate of Education and Ors. v. Educomp Datamatics Ltd. and Ors. (AIR 2004
SC 1962) after referring to the decision in Tata Cellular v. Union of India (1994 (6) SCC
651), it was observed as follows : 2004 AIR SCW 1505
1994 AIR SCW 3344, Para 113
"9. It is well settled now that the courts can scrutinise the award of the contracts by the
Government or its agencies in exercise of their powers of judicial review to prevent
arbitrariness or favouritism. However, there are inherent limitations in the exercise of the
power of judicial review in such matters. The point as to the extent of judicial review
permissible in contractual matters while inviting bids by issuing tenders has been
examined in depth by this Court in Tata Cellular v. Union of India1. After examining the
entire case-law the following principles have been deduced (SCC pp. 687-88, para 94) :
"94. The principles deducible from the above are :
(1) The modern trend points to judicial restraint in administrative action.
(2) The court does not sit as a court of appeal but merely reviews the manner in which the
decision was made.
(3) The court does not have the expertise to correct the administrative decision. If a
review of the administrative decision is permitted it will be substituting its own decision,
without the necessary expertise which itself may be fallible.
(4) The terms of the invitation to tender cannot be open to judicial scrutiny because the
invitation to tender is in the realm of contract. Normally speaking, the decision to accept
the tender or award the contract is reached by process of negotiations through several
tiers. More often than not, such decisions are made qualitatively by experts.
(5) The Government must have freedom of contract. In other words, a fair play in the
joints is a necessary concomitant for an administrative body functioning in an
administrative sphere or quasi-administrative sphere. However, the decision must not
only be tested by the application of Wednesbury principle of reasonableness (including its
other facts pointed out above) but must be free from arbitrariness not affected by bias or
actuated by mala fides.
(6) Quashing decisions may impose heavy administrative burden on the administration
and lead to increased and unbudgeted expenditure."
(Emphasis supplied)"
xxx xxx xxx
12. It has clearly been held in these decisions that the terms of the invitation to tender are
not open to judicial scrutiny, the same being in the realm of contract. That the
Government must have a free hand in setting the terms of the tender. It must have
reasonable play in its joints as a necessary concomitant for an administrative body in an
administrative sphere. The courts would interfere with the administrative policy- decision
only if it is arbitrary, discriminatory, mala fide or actuated by bias. It is entitled to
pragmatic adjustments which may be called for by the particular circumstances. The
courts cannot strike down the terms of the tender prescribed by the Government because
it feels that some other terms in the tender would have been fair, wiser or logical. The
courts can interfere only if the policy-decision is arbitrary, discriminatory or mala fide."
11. The ultimate objective appears to be that the official concerned should not be in a
position to influence the decision-making process. Then the question would be whether a
person belonging to Class III or Class IV can be in a position to do so. It can certainly be
provided that other things being equal, preference will be given to those whose relatives
are not in employment in any unit. In the instant case the period for contract is stated to
be over. The conditions as noted in the Delhi High Court judgment appear to be rational.
12. The authorities can certainly consider the methodology indicated above in future. So
far as the present appeals are concerned, the High Court's decisions cannot be sustained
as correct principles have
@page-SC1991
not been kept in view. But in the absence of any order of stay, the appeals have become
infructuous by passage of time.
13. The appeals are accordingly disposed of. No costs.
Order accordingly.
AIR 2008 SUPREME COURT 1991 "Kanagavalliammal v. R. Balasubramanian"
(From : Madras)*
-2008.
Kanagavalliammal and Ors. v. R. Balasubramanian.
Civil P.C. (5 of 1908), S.47 - Pondicherry Limitation (Repeal of Local Laws) Act (15 of
1994), S.4(b)(i) - EXECUTION - LIMITATION - REPEAL AND SAVINGS - Execution
petition - Limitation - Saving of petitions filed earlier to 1994 Act - Earlier execution
petition dismissed for default - Petition filed for restoration dismissed as not pressed - As
such no execution petition was pending on date of commencement of 1994 Act -
Execution petition filed beyond prescribed period of limitation under said Act was not
maintainable.
C. R. P. No. 1110 of 2003, D/- 15-11-2006 (Mad.), Reversed. (Para 10)
V. Krishnamurthy, Sr. Advocate, Senthil Jagadeesan, for Appellants.

* CRP No. 1110 of 2003, D/- 15-11-2006 (Mad)
Judgement
2. Challenge in this appeal is to the order passed by a learned Single Judge of the Madras
High Court dismissing the Revision Petition filed by the appellants under Section 115 of
the Code of Civil Procedure, 1908 (in short the CPC). Challenge in the Revision Petition
was to the order of learned Additional Sub Judge, Pondicherry dated 7-7-2003 in
Execution Petition No. 177 of 1995 in OS No. 40 of 1981 ordering attachment of
Execution Petition schedule mentioned properties. Appellants, who were the petitioners
before the High Court, are the judgment debtors.
Decree was passed on 22-4-1983 in OS No. 40 of 1981. EP No. 19 of 1984 was filed
which was dismissed as not pressed on 16-4-1984. E.P.No. 101 of 1984 was closed on
10-8-1984. E.P. No. 369 of 1986 was filed on 24-10-1986 but the same was dismissed for
default on 28-3-1994. E.A. No. 238 of 1994 was filed on 29-4-1994 to restore the E.P.
The said E.A. was dismissed as not pressed on 31-10-1994. Subsequently, EP No. 177 of
1995 was filed on 10-11-1995. Appellants took the stand that the Execution Petition is
barred by limitation. The respondent took the stand that the petition was within time
permitted under Pondicherry Limitation (Repeal of Local Law) Act, 1994 (in short the
Act). Reference was made under Section 4(b)(i) of the Act. The executing court accepted
the stand. The Revision Petition as noted above was filed before the High Court which
dismissed the same. The High Court took the view that the E.P. No. 177 of 1995 which
was filed on 10-11-1995 was continuation of earlier E.P. No. 369 of 1986 and other
Execution Petitions. Therefore Section 4 of the Act is not applicable to EP No. 177 of
1995.
4. Learned counsel for the appellants submitted that the date of commencement of the Act
was 1-3-1995 and 90 days time was permitted to file the Execution Petition. E.P.No. 177
of 1995 was filed on 10-11-1995 which is beyond the period of 90 days.
5. The controversy lies within a very narrow compass.
6. Section 4(b)(i) reads as follows :
"(4) Notwithstanding anything contained in this Savings Act-
(b) any appeal or application for which the period of limitation prescribed under the
Limitation Act is shorter than the period of limitation prescribed by the local laws may be
preferred or made,
(i) within such shorter period or within a period of ninety days next after the
commencement of this Act, whichever is longer"
7. Section 5(b) of the Act also has relevance and reads as follows :
"(5) Nothing in this Act shall,
(a) x x x x
(b) enable any suit, appeal or application to be instituted, preferred or made, for which the
period of limitation prescribed by the
@page-SC1992
local laws expired before the commencement of this Act"
8. The High Court itself has noted in para 10 as follows :
"10. It is appropriate to refer to the following dates :
Longer Limitation French Law = 30 years

Shorter Limitation in Indian Limitation Act = 12 years
As per the amended Act, time limit under French Law (22-4-1983 + 30 years) =
22-4-2013
Shorter Limitation of Indian Limitation Act (22-4-1983 + 12 years)= 22-4-1995
90 days from 1-3-95 or 3 months application ought to have been filed = 01-6-
1995"
9. The High Court is not correct in its view that E.P. No. 177 of 1995 was a continuation
of earlier EP No. 369 of 1986 and other Execution Petitions. In fact EP No.369 of 1986
was dismissed for default on 28-3-1994 and the E.P. No. 238 of 1994, filed to restore it,
was dismissed as not pressed. Therefore, there was no Execution Petition. For that matter
no application for recalling, or restoration of any EP was pending on the date of
commencement of the Act.
10. That being so, the High Court was not justified in its view. The impugned order of the
High Court is set aside. The E.P. No. 177 of 1995 having been filed beyond the
prescribed period of limitation was not maintainable and deserves to be dismissed.
11. The appeal is allowed without any order as to costs.
Appeal allowed.
AIR 2008 SUPREME COURT 1992 "Anjani Kumar v. State of Bihar"
(From : Patna)*
Anjani Kumar v. State of Bihar and Anr.
(A) Criminal P.C. (2 of 1974), S.197 - SANCTION FOR PROSECUTION -
APPLICABILITY OF AN ACT - Sanction for prosecution - Act or omission for which
accused was charged - Had reasonable connection with discharge of his duty - Would be
'official' to which S.197 would be applicable.
Under the colour of office, official duty implies that the act or omission must have been
done by the public servant in course of his service and such act or omission must have
been performed as part of duty which further must have been official in nature. The
Section has, thus, to be construed strictly, while determining its applicability to any act or
omission in course of service. Its operation has to be limited to those duties which are
discharged in course of duty. But once any act or omission has been found to have been
committed by a public servant in discharge of his duty then it must be given liberal and
wide construction so far its official nature is concerned. For instance a public servant is
not entitled to indulge in criminal activities. To that extent the Section has to be construed
narrowly and in a restricted manner. But once it is established that act or omission was
done by the public servant while discharging his duty then the scope of its being official
should be construed so as to advance the objective of the Section in favour of the public
servant. Otherwise the entire purpose of affording protection to a public servant without
sanction shall stand frustrated. For instance a police officer in discharge of duty may have
to use force which may be an offence for the prosecution of which the sanction may be
necessary. But if the same officer commits an act in course of service but not in discharge
of his duty and without any justification therefor then the bar under S. 197 is not
attracted. Thus if on facts, it is prima facie found that the act or omission for which the
accused was charged had reasonable connection with discharge of his duty then it must
be held to be official to which applicability of S. 197 cannot be disputed. (Paras 15, 16)
(B) Criminal P.C. (2 of 1974), S.482 - INHERENT POWERS - SANCTION FOR

PROSECUTION - Quashing of proceedings - Abuse of process of law - Appellant in
discharge of official duty conducted raid in medical shop - Shopowner filed complaint
against appellant for various offences under Penal Code - Mala fides were involved apart
from question as to applicability of S.197, Criminal P.C. to facts - Case falls in category
of rare cases - Thus continuance of proceedings against appellant by prosecution - Would
amount to abuse of process of law.
@page-SC1993
1992 AIR SCW 237, Foll. (Para 20)

2006 AIR SCW 189 : AIR 2006 SC 820 : 2006 Cri LJ 808 : 2006 (1) AIR Jhar R 670
(Ref.) 19
2004 AIR SCW 1926 : AIR 2004 SC 2179 : 2004 Cri LJ 2011 (Ref) 19
2003 AIR SCW 6887 : AIR 2004 SC 730 (Ref) 19
1996 AIR SCW 293 : AIR 1996 SC 901 (Ref.) 19
1992 AIR SCW 237 : AIR 1992 SC 604 : 1992 Cri LJ 527 (Foll.) 20
AIR 1988 SC 257 : 1988 Cri LJ 419 (Ref.) 10
AIR 1979 SC 1841 : 1979 Cri LJ 1367 (Ref.) 14
AIR 1967 SC 776 : 1967 Cri LJ 665 (Ref.) 12
AIR 1956 SC 44 : 1956 Cri LJ 140 (Ref.) 15
S.B. Sanyal, Sr. Advocate, Akhilesh Kumar Pandey, Sudhanshu Saran, for Appellant;
Anukul Raj, Gopal Singh for the State, Rituraj Biswas, Chandra Prakash, Lakshmi
Raman Singh, for Respondents.
* Cri. Misc. No. 18238 of 1993, D/- 1-7-1999 (Pat)
Judgement
Dr. ARIJIT PASAYAT, J. :- Challenge in this appeal is to the judgment of a learned Single
Judge of the Patna High Court dismissing the petition filed by the appellant in terms of
Section 482 of the Code of Criminal Procedure, 1973 (in short the 'Code'). The appellant
in the said petition had prayed for quashing the order dated 2-12-1993 taking cognizance
of offences punishable under Sections 465, 466, 468, 469 and 471 of Indian Penal Code,
1860 (in short the 'IPC') in Begusarai Town P.S. Case No.63 of 1993.
2. Background facts as projected by the appellant are essentially as follows :
On 29-8-1992 an application by respondent No.2 (hereinafter referred to as the
'complainant') was filed for cancellation of Form 19 filed relating to the license of M/s.
Arun Medical Hall. On the said date, appellant sent a report for cancellation of the
application form for license. On the same date, as per the directions of District
Magistrate, appellant conducted raid at the medical shop of respondent No.2 around 5.15
p.m. in the presence of two Executive Magistrates and certain medicines were seized. On
8-9-1992 appellant filed FIR (P.S. Case No.258/92) and a case was registered against
respondent No.2 for alleged commission of offences punishable under Sections 420, 467,
468, IPC and Sections 27(b)(ii) and 28 of the Drugs and Cosmetics Act, 1940 (in short
'Drugs Act'). On 15-9-1992 respondent No.2 filed an application for bail. Significantly
there was no averment in the bail petition that the appellant demanded bribe or made any
interpolation of records. On 10-10-1992 respondent No. 2 moved the Civil Surgeon for
release of the seized medicines. Here again there was no allegation of demand of bribe
and interpolation. On 7-11-1992 appellant informed the authorities about the threats
received from respondent No.2 and others. On 16-11-1992 respondent No.2 moved the
learned Chief Judicial Magistrate for release of seized medicines. Here again, there was
no allegation of demand of bribe or interpolation of records. On 16-12-1992 appellant
informed the police officials about the threat received from respondent No.2 and others
and requested to protect his life. On 4-2-1993 a complaint was made by respondent No.2
alleging that appellant had committed offences punishable under Sections 161, 167, 465,
466, 469 and 471, IPC and on the basis of the complaint, FIR was registered.
3. According to the appellant, there was no explanation offered as to why there was delay
in filing the complaint and there was no grievance that the police officials had refused to
register any FIR. On 31-7-1993 an order purported to have been passed under Section
196 of the Code was passed by District Magistrate according sanction for prosecution of
the appellant. On 4-8-1993 charge sheet was filed against the appellant for alleged
commission of offences under Sections 465, 466, 469 and 471 IPC. Here again, there was
no allegation of alleged commission of offence relating to demand of bribe which is
punishable under the Prevention of Corruption Act, 1988 (in short 'PC Act'). On 2-12-
1993 cognizance was taken.
4. It is submitted that the District Magistrate had no authority to grant sanction
purportedly under Section 196 of the Code. Further in the petition before the High Court
it was categorically stated as follows :
"15. That it is stated that the Incharge of the Peon Book or the Issue Register is not the
petitioner. It is in the hands of the clerk of the office and the concerned clerk was the
appointee of Dr. A.A. Mallick whose services has been terminated as his appointment
itself was illegal and during his termination
@page-SC1994
process from service, he connived with the informant and have done all the mischiefs
against the petitioner."
5. As noted above, a petition under Section 482 was filed, which was rejected by the High
Court primarily on the ground that no sanction was required. No other question was
decided. It is pointed out by learned counsel for the appellant that on the basis of the FIR
given by the appellant, respondent No.2 has been convicted under Sections 18A and 28 of
the Drugs Act and Sections 420 and 468, IPC.
6. In support of the appeal, learned counsel for the appellant submitted that the factual
scenario as noted above goes to show the allegations were made as a counter blast by
respondent No.2 for the action taken against him. With a view to harass and humiliate the
appellant a complaint was filed. The appellant had acted in course of his official duty and
the High Court should not have dismissed the petition on the ground that no sanction was
necessary, without considering the mala fides.
7. Learned counsel for the respondent-State on the other hand supported the judgment of
the High Court.
8. There is no appearance on behalf of respondent No.2 in spite of service of notice.
9. As the factual scenario goes to show the complaint filed on 4-2-1993 appears to be a
counter blast by respondent No.2 for the action taken by the appellant against him.
10
. The pivotal issue i.e. applicability of Section 197 of the Code needs careful
consideration. In Bakhshish Singh Brarv. Smt. Gurmej Kaur and Anr. (AIR 1988 SC
257), this Court while emphasizing on the balance between protection to the officers and
the protection to the citizens observed as follows :- (Para 6)
"It is necessary to protect the public servants in the discharge of their duties. In the facts
and circumstances of each case protection of public officers and public servants
functioning in discharge of official duties and protection of private citizens have to be
balanced by finding out as to what extent and how far is a public servant working in
discharge of his duties or purported discharge of his duties, and whether the public
servant has exceeded his limit. It is true that Section 196 states that no cognizance can be
taken and even after cognizance having been taken if facts come to light that the acts
complained of were done in the discharge of the official duties then the trial may have to
be stayed unless sanction is obtained. But at the same time it has to be emphasised that
criminal trials should not be stayed in all cases at the preliminary stage because that will
cause great damage to the evidence."
11. The protection given under Section 197 is to protect responsible public servants
against the institution of possibly vexatious criminal proceedings for offences alleged to
have been committed by them while they are acting or purporting to act as public
servants. The policy of the legislature is to afford adequate protection to public servants
to ensure that they are not prosecuted for anything done by them in the discharge of their
official duties without reasonable cause, and if sanction is granted, to confer on the
Government, if they choose to exercise it, complete control of the prosecution. This
protection has certain limits and is available only when the alleged act done by the public
servant is reasonably connected with the discharge of his official duty and is not merely a
cloak for doing the objectionable act. If in doing his official duty, he acted in excess of
his duty, but there is a reasonable connection between the act and the performance of the
official duty, the excess will not be a sufficient ground to deprive the public servant from
the protection. The question is not as to the nature of the offence such as whether the
alleged offence contained an element necessarily dependent upon the offender being a
public servant, but whether it was committed by a public servant acting or purporting to
act as such in the discharge of his official capacity. Before Section 197 can be invoked, it
must be shown that the official concerned was accused of an offence alleged to have been
committed by him while acting or purporting to act in the discharge of his official duties.
It is not the duty which requires examination so much as the act, because the official act
can be performed both in the discharge of the official duty as well as in dereliction of it.
The act must fall within the scope and range of the official duties of the public servant
concerned. It is the quality of the act which is important and the protection of this section
is available if the act falls within the scope and range of his official duty. There cannot be
any universal rule to determine
@page-SC1995
whether there is a reasonable connection between the act done and the official duty, nor is
it possible to lay down any such rule. One safe and sure test in this regard would be to
consider if the omission or neglect on the part of the public servant to commit the act
complained of could have made him answerable for a charge of dereliction of his official
duty, if the answer to his question is in the affirmative, it may be said that such act was
committed by the public servant while acting in the discharge of his official duty and
there was every connection with the act complained of and the official duty of the public
servant. This aspect makes it clear that the concept of Section 197 does not get
immediately attracted on institution of the complaint case.
12
. At this juncture, we may refer to P. Arulswami v. State of Madras (AIR 1967 SC 776),
wherein this Court held as under : (Para 6)
"... It is not therefore every offence committed by a public servant that requires sanction
for prosecution under Section 197(1) of the Criminal Procedure Code; nor even every act
done by him while he is actually engaged in the performance of his official duties; but if
the act complained of is directly concerned with his official duties so that, if questioned,
it could be claimed to have been done by virtue of the office, then sanction would be
necessary. It is quality of the act that is important and if it falls within the scope and range
of his official duties the protection contemplated by Section 197 of the Criminal
Procedure Code will be attracted. An offence may be entirely unconnected with the
official duty as such or it may be committed within the scope of the official duty. Where
it is unconnected with the official duty there can be no protection. It is only when it is
either within the scope of the official duty or in excess of it that the protection is
claimable."
13. Prior to examining if the Courts below committed any error of law in discharging the
accused it may not be out of place to examine the nature of power exercised by the Court
under Section 197 of the Code and the extent of protection it affords to public servant,
who apart, from various hazards in discharge of their duties, in absence of a provision
like the one may be exposed to vexatious prosecutions. Section 197(1) and (2) of the
Code reads as under :
"197. (1) When any person who is or was a Judge or Magistrate or a public servant not
removable from his office save by or with the sanction of the Government is accused of
any offence alleged to have been committed by him while acting or purporting to act in
the discharge of his official duty, no Court shall take cognizance of such offence except
with the previous sanction -
(a) in the case of person who is employed or, as the case may be, was at the time of
commission of the alleged offence employed, in connection with the affairs of the Union,
of the Central Government;
(b) in the case of a person who is employed or, as the case may be, was at the time of
commission of the alleged offence employed, in connection with the affairs of a State, of
the State Government.
***
(2) No Court shall take cognizance of any offence alleged to have been committed by any
member of the Armed Forces of the Union while acting or purporting to act in the
discharge of his official duty, except with the previous sanction of the Central
Government."
The section falls in the chapter dealing with conditions requisite for initiation of
proceedings. That is if the conditions mentioned are not made out or are absent then no
prosecution can be set in motion. For instance no prosecution can be initiated in a Court
of Sessions under Section 193, as it cannot take cognizance, as a court of original
jurisdiction, of any offence unless the case has been committed to it by a Magistrate or
the Code expressly provides for it. And the jurisdiction of a Magistrate to take cognizance
of any offence is provided by Section 190 of the Code, either on receipt of a complaint, or
upon a police report or upon information received from any person other than police
officer, or upon his knowledge that such offence has been committed. So far public
servants are concerned the cognizance of any offence, by any court, is barred by Section
197 of the Code unless sanction is obtained from the appropriate authority, if the offence,
alleged to have been committed, was in discharge of the official duty. The section not
only specifies the persons to whom the protection is afforded but it also specifies the
conditions and circumstances in which it shall be available and the effect in law if the
conditions are satisfied. The mandatory character of the protection afforded to a
@page-SC1996
public servant is brought out by the expression, 'no court shall take cognizance of such
offence except with the previous sanction'. Use of the words, 'no' and 'shall' make it
abundantly clear that the bar on the exercise of power by the court to take cognizance of
any offence is absolute and complete. Very cognizance is barred. That is the complaint,
cannot be taken notice of. According to Black's Law Dictionary the word 'cognizance'
means 'jurisdiction' or 'the exercise of jurisdiction' or 'power to try and determine causes'.
In common parlance it means taking notice of. A court, therefore, is precluded from
entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect
of a public servant who is accused of an offence alleged to have committed during
discharge of his official duty.
14
. Such being the nature of the provision the question is how should the expression, 'any
offence alleged to have been committed by him while acting or purporting to act in the
discharge of his official duty', be understood? What does it mean? 'Official' according to
dictionary, means pertaining to an office, and official act or official duty means an act or
duty done by an officer in his official capacity. In B. Saha and Ors. v. M. S. Kochar (1979
(4) SCC 177), it was held (SCC pp. 184-85, para 17) : AIR 1979 SC 1841, (Para 18)
"The words 'any offence alleged to have been committed by him while acting or
purporting to act in the discharge of his official duty' employed in Section 197(1) of the
Code, are capable of a narrow as well as a wide interpretation. If these words are
construed too narrowly, the section will be rendered altogether sterile, for, 'it is no part of
an official duty to commit an offence, and never can be'. In the wider sense, these words
will take under their umbrella every act constituting an offence, committed in the course
of the same transaction in which the official duty is performed or purports to be
performed. The right approach to the import of these words lies between two extremes.
While on the one hand, it is not every offence committed by a public servant while
engaged in the performance of his official duty, which is entitled to the protection of
Section 197 (1), an Act constituting an offence, directly and reasonably connected with
his official duty will require sanction for prosecution and the said provision." Use of the
expression, 'official duty' implies that the act or omission must have been done by the
public officer in the course of his service and that it should have been in discharge of his
duty. The Section does not extend its protective cover to every act or omission done by a
public servant in service but restricts its scope of operation to only those acts or
omissions which are done by a public servant in discharge of official duty.
15. It has been widened further by extending protection to even those acts or omissions
which are done in purported exercise of official duty. That is under the colour of office.
Official duty therefore implies that the act or omission must have been done by the public
servant in course of his service and such act or omission must have been performed as
part of duty which further must have been official in nature. The Section has, thus, to be
construed strictly, while determining its applicability to any act or omission in course of
service. Its operation has to be limited to those duties which are discharged in course of
duty. But once any act or omission has been found to have been committed by a public
servant in discharge of his duty then it must be given liberal and wide construction so far
its official nature is concerned. For instance a public servant is not entitled to indulge in
criminal activities. To that extent the Section has to be construed narrowly and in a
restricted manner. But once it is established that act or omission was done by the public
servant while discharging his duty then the scope of its being official should be construed
so as to advance the objective of the Section in favour of the public servant. Otherwise
the entire purpose of affording protection to a public servant without sanction shall stand
frustrated. For instance a police officer in discharge of duty may have to use force which
may be an offence for the prosecution of which the sanction may be necessary. But if the
same officer commits an act in course of service but not in discharge of his duty and
without any justification therefor then the bar under Section 197 of the Code is not
attracted. To what extent an act or omission performed by a public servant in discharge of
his duty can be deemed to be official was explained by this Court in Matajog Dobey v. H.
C. Bhari (AIR 1956 SC 44) thus :
"The offence alleged to have been committed (by the accused) must have something
@page-SC1997
to do, or must be related in some manner with the discharge of official duty ... there must
be a reasonable connection between the act and the discharge of official duty; the act
must bear such relation to the duty that the accused could lay a reasonable (claim) but not
a pretended or fanciful claim, that he did it in the course of the performance of his duty."
16. If on facts, therefore, it is prima facie found that the act or omission for which the
accused was charged had reasonable connection with discharge of his duty then it must
be held to be official to which applicability of Section 197 of the Code cannot be
disputed.
17. Section 197(1) provides that when any person who is or was a public servant not
removable from his office save by or with the sanction of the Government is accused of
any offence alleged to have been committed by him while acting or purporting to act in
the discharge of his official duty, no Court shall take cognizance of such offence except
with the previous sanction (a) in the case of a person who is employed or, as the case may
be, was at the time of commission of the alleged offence employed, in connection with
the affairs of the Union, of the Central Government and (b) in the case of a person who is
employed or, as the case may be, was at the time of commission of the alleged offence
employed, in connection with the affairs of a State, of the State Government.
18. We may mention that the Law Commission in its 41st Report in paragraph 15.123
while dealing with Section 197, as it then stood, observed "it appears to us that protection
under the section is needed as much after retirement of the public servant as before
retirement. The protection afforded by the section would be rendered illusory if it were
open to a private person harbouring a grievance to wait until the public servant ceased to
hold his official position, and then to lodge a complaint. The ultimate justification for the
protection conferred by Section 197 is the public interest in seeing that official acts do not
lead to needless or vexatious prosecution. It should be left to the Government to
determine from that point of view the question of the expediency of prosecuting any
public servant". It was in pursuance of this observation that the expression 'was' come to
be employed after the expression 'is' to make the sanction applicable even in cases where
a retired public servant is sought to be prosecuted.
19
. The above position was highlighted in R. Balakrishna Pillai v. State of Kerala and Ann
(1996 (1) SCC 478), State of H.P. v. M.P.Gupta (2004 (2) SCC 349), State of Orissa
through Kumar Raghvendra Singh and Ors. v. Ganesh Chandra Jew (2004 (8) SCC 40)
and Rakesh Kumar Mishra v. State of Bihar and Ors. (2006 (1) SCC 557). 1996 AIR
SCW 293
2003 AIR SCW 6887
2004 AIR SCW 1926
2006 AIR SCW 189
20
. When the factual background as noted above is considered on the touchstone of legal
principles set out above the inevitable conclusion is that certainly mala fides were
involved apart from the applicability of Section 197 of the Code. It is no doubt true that at
the threshold interference by exercise of Section 482 of the Code has to be in rare cases.
The present case appears to be of that nature and falls under category (7) indicated in
State of Haryana and Ors. v. Bhajan Lal and Ors. (1992 Supp (1) SCC 335). The
continuance of the proceedings by the prosecution would amount to abuse of the process
of law. The criminal proceedings in the Court of learned Chief Judicial Magistrate,
Begusarai in PS Case No.63/1993 are quashed. The appeal is allowed. 1992 AIR
SCW 237
Appeal allowed.
AIR 2008 SUPREME COURT 1997 "Usha Sinha v. Dina Ram"
(From : Patna)
Coram : 2 C. K. THAKKER AND MARKANDEY KATJU, JJ.
-2008.
Usha Sinha v. Dina Ram and Ors.
Civil P.C. (5 of 1908), O.21, R.102, R.2, R.98, R.29 - POSSESSION - EXECUTION -
SALE - DECREE - Obstruction to execution of decree - Purchaser pendente lite - Cannot
raise - Execution cannot also be stayed under R.29.
The doctrine of 'lis pendens' prohibits a party from dealing with the property which is the
subject matter of suit. 'Lis pendens' itself is treated as constructive notice to a purchaser
that he is bound by a decree to be entered in the pending suit. R. 102, therefore, clarifies
that there should not be resistance or obstruction by a transferee pendente lite. The person
purchasing property
@page-SC1998
from the judgment debtor during the pendency of the suit has no independent right to
property to resist, obstruct or object execution of a decree. Resistance at the instance of
transfree of a judgment debtor during the pendency of the proceedings cannot be said to
be resistance or obstruction by a person in his own right and, therefore, is not entitled to
get his claim adjudicated. (Paras 18, 21)
Rule 29 of Order 21 deals with cases wherein a suit has been instituted by the judgment
debtor against the decree-holder and has no relevance to cases of lis pendens wherein
transfer of property has been effected by the judgment debtor to a third party during the
pendency of proceedings. As such merely because the suit filed by the purchaser
pendente lite to declare the decree under execution as void and illegal is pending
adjudication, the execution could not be stayed under R. 29. Moreover if the purchaser
succeeds in the suit and decree is passed in his favour, he can take appropriate
proceedings in accordance with law and apply for restitution. (Paras 23, 24)
AIR 2003 Mad 203 14, 15
1998 AIR SCW 1544 : AIR 1998 SC 1754 (Rel. on) 19, 20, 21, 24
(1996) 5 SCC 539 (Rel. on) 20
(1857) 1 DG and J 566 : 44 ER 847 13, 24
S.B. Sanyal, Sr. Advocate, Dr. K.D. Prasad, D.K. Sinha, A.K. Sinha, Satish Vig, for
Appellant; S.B. Upadhyay, Sr. Advocate, Santosh Mishra, Prabhas Chandra Yadav, Shiv
Mangal Sharma, Ms. Sharmila Upadhyay, for Respondents.
Judgement
C. K. THAKKER, J. :- Leave granted.
2. The present appeal is filed by the appellant herein obstructionist ('appellant' for short)
against the judgment and order dated July 4, 2006 passed by the High Court of Judicature
at Patna in Civil Revision No. 113 of 2004. By the said order, the High Court allowed the
Revision filed by respondent No. 1 herein decree-holder ('respondent' for short) and set
aside the order passed by the Sub-Judge VI, Purnia.
3. Short facts of the case are that the respondent filed a suit being Title Suit No. 140 of
1999 on April 10, 1999 against (1) Arun Choudhary, (2) Poonam Choudhary, (3) Sukhdeo
Singh, (4) Shambhu Prasad, and (5) Binod Kumar in the Court of Sub-Judge VI, Purnia.
During the pendency of the said suit, defendant No. 4-Shambhu Prasad and defendant
No.5-Binod Kumar sold their share in the property in respect of which the suit was
pending, to the appellant by a registered sale deed dated February 15, 2000. On May 24,
2001, ex parte decree was passed against the defendants in Title Suit No. 140 of 1991. In
the judgment rendered by Sub-Judge VI, Purnia, it was observed that though the
defendants were duly served with the summons and there was publication of summons
also in daily newspaper, the defendants did not appear. The case was fixed for ex parte
hearing vide an order dated April 10, 2001. The plaintiff and his witnesses were
examined and on the basis of the said evidence, the suit was decreed. It was held that
plaintiff had right and title over the suit land and he was entitled for recovery of
possession of land shown in Schedule B.
4. The appellant, Binay Kumar Sinha, Pawan Kumar Choudhary and Ratandeo Prasad
Choudhary filed Title Suit No. 226 of 2001 in the Court of Sub-Judge 1, Purnia against
respondent-Dina Ram and others. It was asserted in the plaint that the appellant (Usha
Sinha) had purchased the property and was the absolute owner thereof. It was further
stated that the respondent (plaintiff of Title Suit No. 140 of 1999) had wrongfully and
illegally filed a suit for recovery of possession of property. No notice was served to the
defendants, or to the appellant (purchaser of property) and the decree was illegal,
inexecutable and null and void. It was also fraudulent, collusive and was obtained by
suppressing true and real facts. It was, therefore, prayed that the decree passed in Title
Suit No. 140 of 1999 be declared as null and void, being fraudulent, collusive and
without jurisdiction holding that the plaintiff of Title Suit No. 140 of 1999 had no right,
title or interest in the property.
5. A written statement was filed by the respondent contending that the suit was not
maintainable, there was no cause of action against the defendant-respondent and the
decree passed in the Title Suit No. 140 of 1999 was legal and valid.
6. It may be stated that for execution of decree passed in Title Suit No. 140 of 1999, a
petition, being Execution Case No. 10 of 2002 was filed by the respondent-plaintiff who
was the decree holder. The present appellant
@page-SC1999
filed an application for injunction under Order 39, Rules 1 and 2, Order 21, Rule 29 read
with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the
Code) against the respondent-decree holder, inter alia, contending that the ex parte decree
passed in Title Suit No. 140 of 1999 was not legal and valid and could not be executed
against her. It was further stated that a substantive suit was filed by the appellant being
Title Suit No. 226 of 2001 and till that suit is finally decided, execution should be stayed
and the decree-holder should be restrained from interfering with the possession of the
appellant (plaintiff of Title Suit No. 226 of 2001). The respondent contested the
application contending that no such application could lie under Order XXI, Rule 29 of the
Code. The application came to be rejected by the Court on August 16, 2003. In view of
rejection of the application, the appellant moved the Executing Court in which Execution
Case No. 10 of 2002 was pending. The application was registered as Misc. Case No. 13
of 2003. In the application, it was stated by the appellant that she had purchased the
property by a registered sale deed dated February 15, 2000; that she had also filed Title
Suit No. 226 of 2001 for setting aside ex parte decree in Title Suit No. 140 of 1999 which
was pending; if during the pendency of the substantive suit filed by her, ex parte decree is
executed, irreparable loss and injury would be caused to her. The Executing Court, vide
an order dated November 20, 2003, allowed the application and stayed further
proceedings in Execution Case No. 10 of 2002 till the disposal of Misc. Case No. 13 of
2003. Being aggrieved by the said order, the respondent approached the High Court by
filing Revision Petition. The High Court allowed the Revision and set aside the order of
the Executing Court which has been challenged by the appellant by invoking Article 136
8. The learned counsel for the appellant contended that the High Court was wholly in
error in allowing the revision filed by the respondent and in setting aside the order passed
by the Executing Court granting stay of proceedings in Execution Case. It was submitted
that the Executing Court was right in relying on the circumstance that when a substantive
suit is filed by the appellant to set aside ex parte decree passed in favour of the
respondent in Title Suit No. 140 of 1999, during the pendency of such suit, execution
proceedings ought to be stayed. The Executing Court passed an order in the light of the
fact that a suit filed by the appellant was pending final disposal which was a relevant
consideration and the said order should not have been interfered with by the High Court.
It was also submitted that the High Court was wrong in invoking Rule 102 of Order XXI
of the Code and in holding that the appellant had no right to seek protection. The counsel
also relied upon Rule 29 of Order XXI of the Code which deals with the situation where a
substantive suit is filed by the judgment-debtor against the decree-holder and execution
proceedings are pending before a Court. Till the suit is finally decided, execution
proceedings should not be allowed to continue further resulting in virtual dismissal of the
suit. It was, therefore, submitted that the order passed by the High Court deserves to be
set aside by restoring the order passed by the Executing Court.
9. The learned counsel for the respondent, on the other hand, supported the order passed
by the High Court. It was submitted that the Executing Court was wholly wrong in
entertaining application filed by the appellant particularly after rejection of similar
application under Order XXI, Rule 29 of the Code and by granting relief of injunction till
the disposal of Title Suit No. 226 of 2001 filed by her. It was submitted that admittedly
Title Suit No. 140 of 1999 was filed by the respondent on April 10, 1999 and so called
registered sale deed was entered into between defendant Nos. 4 and 5 on one hand and
the appellant on the other hand on February 15, 2000 i.e. during the pendency of the suit.
The doctrine of lis pendens, hence, applies to such sale. Rule 102 of Order XXI of the
Code immediately gets attracted to such sale. The said provision expressly enacts that
nothing in Rules 98 and 100 of Order XXI shall apply to resistance or obstruction in
execution of a decree for the possession of immovable property by a person to whom the
judgment-debtor has transferred the property after the institution of the suit in which the
decree was passed. It was, therefore, submitted that the appeal deserves to be dismissed.
10. Before we consider the legality or otherwise of the decision impugned in the
@page-SC2000
present appeal, it may be appropriate if we note the relevant provisions of law. Rules 97
to 106 of Order XXI of the Code deal with "Resistance or obstruction to delivery of
possession to decree holder or purchaser". Rule 97 enables the decree holder or auction
purchaser to complain to Executing Court if he/ she is resisted or obstructed in obtaining
possession of such property by 'any person'. The Court on receipt of such application will
proceed to adjudicate it. Rule 101 requires the Court to make full-fledged inquiry and
determine all questions relating to right, title and interest in the property arising between
the parties to the proceeding or their representatives. The Court will then pass an order
upon such adjudication (Rule 98). Rule 99 permits any person other than the judgment
debtor who is dispossessed by the decree holder or auction purchaser to make an
application to Executing Court complaining such dispossession. The Court, on receipt of
such application, will proceed to adjudicate it (Rule 100). Rule 103 declares that an order
made under Rule 98 or Rule 100 shall have the same force and be subject to the same
conditions as to appeal or otherwise as if it were a decree.
11. Rule 102 clarifies that Rules 98 and 100 of Order XXI of the Code do not apply to
transferee pendente lite. That rule is relevant and material and may be quoted in extenso;
102. Rules not applicable to transferee pendente lite
Nothing in Rules 98 and 100 shall apply to resistance or obstruction in execution of a
decree for the possession of immovable property by a person to whom the judgment-
debtor has transferred the property after the institution of the suit in which the decree was
passed or to the dispossession of any such person.
12. Bare reading of the rule makes it clear that it is based on justice, equity and good
conscience. A transferee from a judgment debtor is presumed to be aware of the
proceedings before a Court of law. He should be careful before he purchases the property
which is the subject matter of litigation. It recognizes the doctrine of lis pendens
recognized by Section 52 of the Transfer of Property Act, 1882*. Rule 102 of Order XXI
of the Code thus takes into account the ground reality and refuses to extend helping hand
to purchasers of property in respect of which litigation is pending. If unfair, inequitable or
undeserved protection is afforded to a transferee pendente lite, a decree holder will never
be able to realize the fruits of his decree. Every time the decree holder seeks a direction
from a Court to execute the decree, the judgment debtor or his transferee will transfer the
property and the new transferee will offer resistance or cause obstruction. To avoid such a
situation, the rule has been enacted.
Section 52- Transfer of property pending suit relating theretoDuring the pendency in any
Court having authority within the limits of India (excluding the State of Jammu and
Kashmir) or established beyond such limits by the Central Government of any suit or
proceeding which is not collusive and in which any right to immoveable property is
directly and specifically in question, the property cannot be transferred or otherwise dealt
with by any party to the suit or proceeding so as to affect the rights of any other party
thereto under any decree or order which may be made therein, except under the authority
of the Court and on such terms as it may impose.
Explanation.- For the purposes of this section, the pendency of a suit or proceeding shall
be deemed to commence from the date of the presentation of the plaint or the institution
of the proceeding in a Court of competent jurisdiction, and to continue until the suit or
proceeding has been disposed of by a final decree or order and complete satisfaction or
discharge of such decree or order has been obtained, or has become unobtainable by
reason of the expiration of any period of limitation prescribed for the execution thereof
by any law for the time being in force.
13. Before one and half century, in Bellamy v. Sabine, (1857) 1 DG and J 566 : 44 ER
847, Lord Cranwoth, L.C. proclaimed that where a litigation is pending between a
plaintiff and a defendant as to the right to a particular estate, the necessities of mankind
require that the decision of the Court in the suit shall be binding not only on the litigating
parties, but also on those who derive title under them by alienations made pending the
@page-SC2001
suit, whether such alienees had or had not notice of the pending proceedings. If this were
not so, there could be no certainty that the litigation would ever come to an end,
14. Keeping in view the avowed object, the expression 'transferee from the judgment
debtor' has been interpreted to mean the 'transferee from a transferee from the judgment-
debtor' [vide Vijayalakshmi Leather Industries (P) Ltd. vs. K. Narayanan, Lalitha, AIR
2003 Mad 203].
15. In Vijayalakshmi Leather Industries, It was urged that the provisions of Rules 98 and
100 of Order XXI of the Code had limited application to the transferee of the judgment-
debtor and could not extend to 'a chain of transactions' where the transferee of the
judgment-debtor had transferred his interest.
16. Referring to statutory provisions and case law, the Court negatived the contention,
stating -
If such contention of the learned senior counsel for the appellant is to be accepted, then
we are closing our eyes regarding the intention of the statute. It is obvious while
interpreting the provisions of the statute, the court must give due weight to the intention
of the statute in order to give effect to the provisions. If any narrow interpretation is given
and thereby the purpose of the statute is being defeated, the courts must be careful to
avoid such interpretations. If we look at Section 52 of the Transfer of Property Act and
Rule 102 of Order 21 C.P.C, it is very clear that the intention of the Parliament with
which the statute had been enacted is that the rights of one of the parties to the
proceeding pending before the court cannot be prejudiced or taken away or adversely
affected by the action of the other party to the same proceeding. In the absence of such
restriction one party to the proceeding, just to prejudice the other party, may dispose of
the properties which is the subject matter of the litigation or put any third party in
possession and keep away from the court. By such actions of the party to the litigation the
other party will be put to more hardship and only to avoid such prejudicial acts by a party
to the litigation these provisions are in existence. When in spite of such statutory
restrictions, for the transfer of the properties, which are the subject matter of litigation by
a party to the proceeding, the courts are duty bound to give effect to the provisions of the
statute.
17. The above observations, in our opinion, lay down correct proposition of law.
18. It is thus settled law that a purchaser of suit property during the pendency of litigation
has no right to resist or obstruct execution of decree passed by a competent Court. The
doctrine of 'lis pendens' prohibits a party from dealing with the property which is the
subject matter of suit, 'Lis pendens' itself is treated as constructive notice to a purchaser
that he is bound by a decree to be entered in the pending suit. Rule 102, therefore,
clarifies that there should not be resistance or obstruction by a transferee pendente lite. It
declares that if the resistance is caused or obstruction is offered by a transferee pendente
lite of the judgment debtor, he cannot seek benefit of Rule 98 or 100 of Order XXI.
19
. In Silverline Forum Pvt. Ltd. v. Rajiv Trust, (1998) 3 SCC 723, this Court held that
where the resistance is caused or obstruction is offered by a transferee pendente lite, the
scope of adjudication is confined to a question whether he was a transferee during the
pendency of a suit in which the decree was passed. Once the finding is in the affirmative,
the Executing Court must hold that he had no right to resist or obstruct and such person
cannot seek protection from the Executing Court. 1998 AIR SCW 1544
20. The Court stated;
"It is true that Rule 99 of Order 21 is not available to any person until he is dispossessed
of immovable property by the decree-holder. Rule 101 stipulates that all questions
"arising between the parties to a proceeding on an application under Rule 97 or Rule 99"
shall be determined by the executing court, if such questions are "relevant to the
adjudication of the application". A third party to the decree who offers resistance would
thus fall within the ambit of Rule 101 if an adjudication is warranted as a consequence of
the resistance or obstruction made by him to the execution of the decree. No doubt if the
resistance was made by a transferee pendente lite of the judgment debtor, the scope of the
adjudication would be shrunk to the limited question whether he is such transferee and on
a finding in the affirmative regarding that point the execution court has to hold that he has
no right to resist in view of the clear language contained in Rule 102. Exclusion of such a
1998 AIR SCW 1544, Para 10
@page-SC2002
transferee from raising furthercontentions is based on the salutary principle adumbrated
in Section 52 of the Transfer of Property Act."
(Emphasis supplied)
[See also Sarvinder Singh v. Dalip Singh, (1996) 5 SCC 539]
21
. We are in respectful agreement with the proposition of law laid down by this Court in
Silverline Forum. In our opinion, the doctrine is based on the principle that the person
purchasing property from the judgment debtor during the pendency of the suit has no
independent right to property to resist, obstruct or object execution of a decree.
Resistance at the instance of transferee of a judgment debtor during the pendency of the
proceedings cannot be said to be resistance or obstruction by a person in his own right
and, therefore, is not entitled to get his claim adjudicated. 1998 AIR SCW 1544
22. For invoking Rule 102, it is enough for the decree holder to show that the person
resisting the possession or offering obstruction is claiming his title to the property after
the institution of the suit in which decree was passed and sought to be executed against
the judgment debtor. If the said condition is fulfilled, the case falls within the mischief of
Rule 102 and such applicant cannot place reliance either on Rule 98 or Rule 100 of Order
XXI.
23. So far as the present case is concerned, the facts are no more in dispute. As already
noted earlier, Title Suit No. 140 of 1999 was instituted by the respondent-plaintiff on
April 10, 1999. Thus, the litigation was pending in respect of the property and the matter
was sub-judice. The appellant thereafter purchased the property from original defendant
Nos. 4 and 5 by a registered sale deed on February 15, 2000 i.e. during the pendency of
the suit. It is also not in dispute that ex-parte decree came to be passed against the
defendants on May 24, 2001. In the situation, in our considered opinion, the doctrine of
lis pendens would apply to the transaction in question, and the High Court was wholly
right in holding that the case was covered by Rule 102 of Order XXI of the Code. The
appellant could not seek protection of pendency of suit instituted by her. The Executing
Court was not justified in granting stay of execution proceedings. The High Court was,
hence, right in setting aside the order of the Executing Court.
24
. Rule 29 of Order XXI of the Code deals with cases wherein a suit has been instituted by
the judgment-debtor against the decree-holder and has no relevance to cases of lis
pendens wherein transfer of property has been/effected by the judgment debtor to a third
party during the pendency of proceedings. The High Court, in our opinion, rightly held
that the appellant could not be said to be a 'stranger' to the suit inasmuch as she was
claiming right, title and interest through defendant Nos. 4 and 5 against whom the suit
was pending. She must, therefore, be presumed to be aware of the litigation which was
before a competent Court in the form of Title Suit No. 140 of 1999 instituted by the
present respondent against the predecessor of the appellant. As held inBellamy, the fact
that the purchaser of the property during the pendency of the proceedings had no
knowledge about the suit, appeal or other proceeding is wholly immaterial and he/she
cannot resist execution of decree on that ground. As observed in Silverline Forum, a
limited inquiry in such cases is whether the transferee is claiming his right through the
judgment-debtor. In our judgment, the High Court was also right in observing that if the
appellant succeeds in the suit and decree is passed in her favour, she can take appropriate
proceedings in accordance with law and apply for restitution. That, however, does not
preclude the decree holder from executing the decree obtained by him. Since the
appellant is a purchaser pendente liteand as she has no right to offer resistance or cause
obstruction and as her rights have not been crystallized in a decree, Rule 102 of Order 21
of the Code conies into operation. Hence, she cannot resist execution during the
pendency of the suit instituted by her. The order passed by the High Court, therefore,
cannot be said to be illegal, unlawful or otherwise contrary to law. 1998 AIR SCW 1544
25. For the aforesaid reasons, the appeal deserves to be dismissed and is accordingly
dismissed. On the facts and in the circumstances of the case, however, there shall be no
order as to costs.
Appeal dismissed.
@page-SC2003
AIR 2008 SUPREME COURT 2003 "Bollepanda P. Poonacha v. K. M. Madapa"
(From : Karnataka)*
-2008.
Bollepanda P. Poonacha and Anr. v. K.M. Madapa.
(A) Civil P.C. (5 of 1908), O.8, R.6A - COUNTER-CLAIM - DECLARATION OF
TITLE - POSSESSION - TRESPASS - Counter claim - Tenability - Suit for declaration
of title and possession - Defendant filed W.S. - W.S. subsequently amended claiming
recovery of possession - Amendment alleged to be necessitated because of tresspass by
plaintiff - Subsequent filing of counter claim on basis of tresspass - Not tenable -
Tresspass as cause of action for filing counter claim - Cannot be said to have arisen prior
to filing of W.S.
W. A. No.68 of 2007 (GM-CPC), D/-14-02-2007 (Kant.), Reversed. (Para 10)
(B) Civil P.C. (5 of 1908), O.6, R.17, O.8, R.6A - AMENDMENT - PLEADINGS -
COUNTER-CLAIM - Amendment of Written Statement - Court has wide discretion -
Amendment enabling defendant to elaborate his defence or to take additional pleas may
be allowed - Court, however, must exercise discretionary jurisdiction in a judicious
manner - Cannot be used contrary to statutory interdict in O.8, R.6A. (Paras 12, 13,
16)
2008 AIR SCW 1165 : 2008 (2) ALJ 785 (Ref.) 13
2006 AIR SCW 3956 : AIR 2006 SC 2832 (Expln.) 10
2006 AIR SCW 5439 : AIR 2007 SC 113 (Ref.) 13
2003 AIR SCW 2590 : AIR 2003 SC 2508 (Ref.) 11
1996 AIR SCW 613 : AIR 1996 SC 1087 (Ref.) 11
AIR 1987 SC 1395 (Rel. on) 10
AIR 1964 SC 11 (Ref.) 15
Dayan Krishnan, Nikhil Nayyar, Gautam Narayan, Samrat Singh, Ankit Singhal and
T.V.S. Raghavendra Sayas, for Appellants; Girish Ananthamurthy, Ms. Vaijayanthi Girish
and P.P. Singh, for Respondent.
Judgement
2. Whether a counter claim is permissible to be filed after filing of a written statement, is
the core question involved herein.
3. Appellant filed a suit against the respondent claiming title and possession over the
property in suit. Their names were mutated in the revenue record of rights. Respondents
had filed a suit against the appellant which was marked as O.S. No. 67 of 1996. An order
of interim injunction was passed therein on the premise that he under the garb of ex-parte
interim injunction started making attempts to interfere with the possession of the
appellant in the scheduled properties.
4. O.S. No. 54 of 1997 was filed in the Court of Civil Judge, Senior Division at Virajpet
on 19-2-1997. Respondent filed a written statement on 21-3-1997 contending that he had
purchased the said properties in terms of an order passed by the Assistant Registrar of
Co-operative Societies, Kodagu, Madikeri.
5. On or about 4-1-2006, inter alia on the premise that the plaintiffs have dis-possessed
the respondents in the year 1998, an application for leave to file counter claim was filed.
In the said counter claim, it was contended that the land bearing Survey No. 61/1 had
fallen to his share in a partition of the family properties in 1980 and 1986 and the
remaining land was purchased by him in a public auction. The cause of action for filing
the said counter claim was said to have arisen on 19-2-1997, when the suit was filed and
in the end of summer of 1998 when the plaintiff tresspassed and encroached upon the
lands belonging to them. In the application for amendment of the written statement, a
prayer was made for passing a decree of recovery of possession of the suit land stating;
"Pass a judgment and decree against the plaintiffs declaring that the defendant is the
absolute owner of the written statement schedule 'A' properties and direct the plaintiffs to
vacate and deliver possession of the schedule 'B' properties to the defendant and the same
be ordered to be delivered by a fixed date and on default; the same shall be delivered to
the defendant by the due process of the court........."
The said application has been allowed by the learned Civil Judge by an order dated
@page-SC2004
12-10-2006, opining that the cause of action for filing the said counter claim arose prior
to filing of the written statement.
Revision application filed by the appellant has been dismissed by the High Court by
reason of the impugned judgment.
6. Mr. Dayan Krishnan, learned counsel appearing on behalf of the appellant submitted
that filing of a counter claim where cause of action arose after filing of the written
statement is impermissible under Order 8 Rule 6A of the Code of Civil Procedure.
7. Mr. Girish Ananthamurthy, the learned counsel appearing on behalf of the respondent,
however, urged that with a view to avoid unnecessary litigation, the view taken by the
learned Civil Judge as also the High Court cannot be said to be wholly impermissible in
law.
8. Order VIII Rule 6A of the Code of Civil Procedure reads as under :
6A. Counter-claim by defendant - (1) A defendant in a suit may, in addition to his right of
pleading a set-off under Rule 6, set up, by way of counter-claim against the claim of the
plaintiff, any right or claim in respect of a cause of action accruing to the defendant
against the plaintiff either before or after the filing of the suit but before the defendant has
delivered his defence or before the time limited for delivering his defence has expired,
whether such counter-claim is in the nature of a claim for damages or not :
(Emphasis supplied)
9. Order VI Rule 17 of the Code provides for amendment of pleadings. Subject of course
to the applicability of the proviso appended thereto (which is not applicable in the instant
case), such applications ordinarily are required to be considered liberally. It is also not
much in doubt or dispute that amendment of written statement deserves more liberal
consideration than an application for amendment of plaint. Order VIII Rule 9 again,
subject to the statutory interdict enables a defendant to file additional pleadings.
10
. The provision of Order VIII, Rule 6A must be considered having regard to the
aforementioned provisions. A right to file counter claim is an additional right. It may be
filed in respect of any right or claim, the cause of action therefor, however, must accrue
either before or after the filing of the suit but before the defendant has raised his defence.
Respondent in his application for amendment of written statement categorically raised the
plea that the appellants had trespassed on the lands, in question, in the summer of 1908.
Cause of action for filing the counter claim inter alia was said to have arisen at that time.
It was so explicitly stated in the said application. The said application, in our opinion,
was, thus, clearly not maintainable. The decision of Sri Ryaz Ahmed (supra) is based on
the decision of this Court in Baldev Singh and Others vs. Manohar Singh and Another
[(2006) 6 SCC 498]. 2006 AIR SCW 3956
Further, the facts of the instant case are distinguishable from those of the Sri Ryaz Ahmed
(supra). In that case, the proposed amendment by the defendant was allowed to be filed as
he wanted to make a counterclaim by way of a decree for grant of mandatory injunction
to remove the built up area on the disputed portion of land. It was therein held that
instead of driving the defendant to file a separate suit therefor, it was more appropriate to
allow the counter-claim keeping in mind the prayer of a negative declaration in the plaint.
However, in the instant case, the counter-claim was purported to have been filed for
passing of a decree for recovery of possession of the disputed land after the suit had been
filed.
Baldev Singh (supra) is not an authority for the proposition that the Court while allowing
an application for amendment will permit the defendant to raise a counter claim although
the same would run counter to the statutory interdicts contained in Order 8, Rule 6A.
Some of the decisions of this Court in no uncertain terms held it to be impermissible.
2006 AIR SCW 3956
See Mahendra Kumar vs. State of Madhya Pradesh [(1987) 3 SCC 265], Shanti Rani Das
Dewanjee (Smt.) vs. Dinesh Chandra Day (Dead) by LRs. [(1997) 8 SCC 174]. AIR
1987 SC 1395
1997 AIR SCW 3922
11
. In Gurbachan Singh vs. Bhag Singh and Ors. [(1996) 1 SCC 770], this Court clearly
held; 1996 AIR SCW 613
".............the limitation was that the counter-claim or set-off must be pleaded by way of
defence in the written statement before the defendant filed his written statement or before
the time limit for delivering the written statement has expired, whether such
@page-SC2005
counter claim is in the nature of a claim for damages or not."
A belated counter claim must be discouraged by this Court. See Ramesh Chand vs. Anil
Panjwani [(2003) 7 SCC 350]. 2003 AIR SCW 2590
12. We are, however, not unmindful of the decisions of this Court where a defendant has
been allowed to amend his written statement so as to enable him to elaborate his defence
or to take additional pleas in support of his case.
13. The Court in such matters has a wide discretion. It must, however, subserve the
ultimate cause of justice. It may be true that further litigation should be endeavoured to
be avoided. It may also be true that joinder of several causes of action in a suit is
permissible.
The Court, must, however, exercise the discretionary jurisdiction in a judicious manner.
While considering that subservance of justice is the ultimate goal, the statutory limitation
shall not be overstepped. Grant of relief will depend upon the factual background
involved in each case. The Court, while undoubtedly would take into consideration the
questions of serious injustice or irreparable loss, but nevertheless should bear in mind that
a provision for amendment of pleadings are not available as a matter of right under all
circumstances. (2006 AIR SCW 5439) 2006 AIR SCW 5439
2006 AIR SCW 4959
2008 AIR SCW 1165
One cause of action, cannot be allowed to be substituted by another. Ordinarily, effect of

an admission made in earlier pleadings shall not be permitted to be taken away. See State
of A.P and Ors. vs. M/s. Pioneer Builders, A.P. [(2006) 9 SCALE 520] and Steel
Authority of India Ltd. vs. Union of India andOrs. [2006 (9) SCALE 597] and Himmat
Singh and Ors. vs. I.C.I. India Ltd. and Ors., [2008 (2) SCALE 152].
14. We, for the reasons stated hereinbefore, are of the opinion that the learned Civil Judge
was not correct in allowing the application for amendment of the written statement.
15. Even prior to coming into force of the Code of Civil Procedure (Amendment) Act,
1976, the Court could treat a counter claim or a cross suit.
This Court in Laxmidas Dayabhai Kabrawala vs. Nanabhai Chunilal Kabrawala and
Others [AIR 1964 SC 11] held;
"11. The question has therefore to be considered on principle as to whether there is
anything in law - statutory or otherwise - which precludes a court from treating a counter-
claim as a plaint in a cross suit. We are unable to see any. No doubt, the Civil Procedure
Code prescribes the contents of a plaint and it might very well be that a counter-claim
which is to be treated as a cross-suit might not conform to all these requirements but this
by itself is not sufficient to deny to the Court the power and the jurisdiction to read and
construe the pleadings in a reasonable manner. If, for instance, what is really a plaint in a
cross-suit is made part of a Written Statement either by being made an annexure to it or
as part and parcel thereof, though described as a counter-claim, there could be no legal
objection to the Court treating the same as a plaint and granting such relief to the
defendant as would have been open if the pleading had taken the form of a plaint. Mr.
Desai had to concede that in such a case the Court was not prevented from separating the
Written Statement proper from what was described as a counter-claim and treating the
latter as a cross-suit. If so much is conceded it would then become merely a matter of
degree as to whether the counterclaim contains all the necessary requisites sufficient to be
treated as a plaint making a claim for the relief sought and if it did it would seem proper
to hold that it would be open to a Court to covert or treat the counter-claim as a plaint in a
cross suit. To hold otherwise would be to erect what in substance is a mere defect in the
form of pleading into an instrument for denying what justice manifestly demands. We
need only add that it was not suggested that there was anything in O. VIII, R. 6 or in any
other provision of the Code which laid an embargo on a Court adopting such a course."
16. Parliament, however, has placed an embargo while giving effect to the decision of this
Court in inserting Order VIII, Rule 6A of the Code of Civil Procedure. While there exists
a statutory bar, the court's jurisdiction cannot be exercised.
17. For the reasons aforementioned, the impugned judgments cannot be sustained which
are set aside accordingly. The appeal is allowed.
18. The defendant, however, would be entitled to file a suit or an application to amend the
plaints to such extent, which may
@page-SC2006
be held to be permissible in law. Respondent shall bear the costs of the appellant.
Counsel's fee assessed at Rs. 10,000/-.
Appeal allowed.
AIR 2008 SUPREME COURT 2006 "Narain Singh v. State of Haryana"
Civil Appeal No.632 of 2008 (arising out of SLP (Cri.) No.5071 of 2007), D/- 9 -4 -2008.
Narain Singh and Ors. v. State of Haryana.
(A) Penal Code (45 of 1860), S.96 - PRIVATE DEFENCE - Right of private defence -
Burden of proof - Is on accused - Proof beyond reasonable doubt - Not however
necessary. (Para 8)
(B) Penal Code (45 of 1860), S.96 - PRIVATE DEFENCE - Right of private defence -
Raising of specific plea to that effect - Not necessary - If circumstances point towards its
legitimate use - Court can consider such plea. (Para 7)
(C) Penal Code (45 of 1860), S.96 - PRIVATE DEFENCE - Right of private defence -
Availability - Factors to be considered.
In order to find whether right of private defence is available or not, the injuries received
by the accused, the imminence of threat to his safety, the injuries caused by the accused
and the circumstances whether the accused had time to have recourse to public authorities
are all relevant factors to be considered. (Para 11)
(D) Penal Code (45 of 1860), S.96 - PRIVATE DEFENCE - Right of private defence -
Whether exceed - Pragmatic view of situation has to be taken - Situation not to be tested
by detached objectivity. (Paras 12, 13)
(E) Penal Code (45 of 1860), S.96 - PRIVATE DEFENCE - Right of private defence -
Nature - Defensive right - Not a right of retribution. (Para 15)
(F) Penal Code (45 of 1860), S.96 - PRIVATE DEFENCE - Right of private defence -
Availability - Accused persons going armed with gun and jailies to plough field of
deceased - Incident of firing and assault taking place when deceased tried to prevail them
not to sow Jawar in their field - Accused in circumstance had no right of private defence.
(Paras 3, 16)
(G) Penal Code (45 of 1860), S.304, Part II - CULPABLE HOMICIDE - SENTENCE
REDUCTION - Sentence - Accused armed with gun along with others trying to sow
seeds in field of deceased - Objection by deceased who was armed with lathi - Accused
firing at him - Sentence of ten years imprisonment imposed for offence u/S.304, Part II -
Reduced to 7 years in circumstances of case. (Para 17)
AIR 1979 SC 391 : 1979 Cri LJ 323 (Ref) 7
AIR 1979 SC 577 : 1979 Cri LJ 584 (Ref) 7
AIR 1977 SC 2226 : 1977 Cri LJ 1897 (Ref) 7
AIR 1976 SC 2263 : 1976 Cri LJ 1736 9
AIR 1975 SC 1478 : 1975 Cri LJ 1079 (Ref) 7
AIR 1971 SC 1857 : 1971 Cri LJ 1296 (Ref) 13
AIR 1968 SC 702 : 1968 Cri LJ 806 (Ref) 7
AIR 1963 SC 612 : 1963 (1) Cri LJ 495 (Ref) 10
D.B. Goswami, Khwairakpam Nobin Singh, for Appellants; Ameet Singh, Ms. Pareena
Swarup, Harendra Singh, for Respondent.
* Cri. A. No. 613-DB OF 1997, D/- 14-5-2007 (P and H)
Judgement
1. Dr. ARIJIT PASATAT, J. Leave granted.
2. Challenge in this appeal is to the judgment of the Division Bench of the Punjab and
Haryana High Court partly allowing the appeal filed by the appellants. Learned
Additional Sessions Judge, Sonepat by judgment dated 8-8-1997 had convicted
appellants Narain Singh, Ramesh, Naresh and one Suresh Kumar for offences punishable
under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short 'IPC').
They were sentenced to undergo imprisonment for life and to pay a fine of Rs. 20,000/-
@page-SC2007
each with default stipulation. They were also convicted under Section 323 read with
Section 34 IPC and sentenced to undergo three months RI. Accused-appellant Narain
Singh was convicted for offence punishable under Section 27 of the Arms Act, 1959 (in
short 'Arms Act') and sentenced to undergo one year RI. It is to be noted that the
appellant-Narain Singh is the father of the other accused persons.
3. Prosecution version in a nutshell is as follows :
One Smt. Raj Bala (PW.3) set the law into motion. Smt. Bala lodged report with police
stating that her husband Balbir (hereinafter referred to as the 'deceased') was employed as
a driver in the Department of Electricity at Sonepat. She along with her husband and
children lived in Mohalla Sham Nagar, Sonepat. Her husband had three brothers and five
sisters. Her father-in-law Charan Dass had 10 acres of land. Out of this, four acres were
given to them, while four acres were given to her brother-in-law Raghbir Singh. Charan
Dass kept two acres for himself. No share of land was given to Narain, because he did not
have good relation with his brothers and sisters, Narain filed a Civil Suit against them.
On 28-5-1995 Om Parkash son of Raghbir Singh came to their house at Sonepat. He told
them that his uncle Narain Singh had gone to their field along with his son Ramesh,
Suresh and Naresh in a tractor, to sow Jawar. Smt. Bala along with Om Parkash and her
husband Balbir Singh went to the field. They reached there at about 11/11 ½ a.m. They
found Naresh ploughing the field with his tractor and sowing Jawar. Narain Singh
standing there having a bandolier around his neck. He was holding his licensed gun in his
hands. His both sons Ramesh and Suresh were armed with Jailies. When they tried to
prevail them not to sow Jawar in their field, Naresh stopped the tractor and picked up a
Jaily. All of them raised a "lalkara" not to spare them. Narain then fired a shot at her
husband Balbir Singh, which hit him on his chest. Ramesh gave a Jaily blow lathiwise on
Smt. Bala's head. Two or three more Jaily blows were given by Suresh. Naresh gave 3-4
Jaily blows to Om Parkash. On the basis of this statement, FIR Ex PA/1 was recorded on
28-5-1995 at 1.00 p.m. The special report reached the Illaqa Magistrate, Sonepat on the
same day at 4.30 p.m. After completion of investigation, charge sheet was filed. Since
they pleaded innocence, trial was held. The prosecution to prove its case brought into the
witness box ASI Mahinder Singh (PW1), Virender Singh (PW2), Raj Bala (PW3), Om
Parkash (PW4), ASI Pirthi Singh (PW5), Ramesh Kumar (PW6), C. Rajinder Singh
(PW7), Dr. O.P Gujaria (PW8), Dr. Subhash Mathur (PW 9), HC Anil Kumar (PW10),
Rajbir (PW11) and ASI Rameshwar Dutt (PW12). PWs. 3 and 4 were stated to be eye
witnesses. Trial Court recorded conviction and imposed sentences as noted above. All the
accused persons filed appeal before the High Court.
4. Appellants took the plea of right of private defence. The High Court held that the
appellant Narain fired a shot from his gun. He certainly exceeded the right of private
defence, as the deceased and the witnesses were only armed with lathies. Therefore, it
was held that the appropriate conviction would be under Section 304 Part II IPC.
Appellant Narain Singh was sentenced to undergo imprisonment for ten years for offence
punishable under Section 304 Part II read with Section 34 IPC. Though other accused
persons were similarly convicted they were each sentenced to undergo RI for five years.
For the offence punishable under Section 323 IPC appellant Narain Singh was sentenced
to undergo imprisonment for three months. The fine awarded by the Trial Court was
maintained with default stipulation. Appeal by Suresh Kumar was held to have abated
because he died during the pendency of the appeal.
5. In support of the appeal learned counsel for the appellant submitted that the Trial Court
and the High Court erroneously held that the right of private defence was not available. In
any event, it was submitted that the sentence as imposed is high.
6. Learned counsel for the State on the other hand supported the judgment of the Trial
Court and the High Court.
7. Only question which needs to be considered, is the alleged exercise of right of private
defence. Section 96, IPC provides that nothing is an offence which is done in the exercise
of the right of private defence. The Section does not define the expression 'right of private
defence'. It merely indicates that nothing is an offence which is done in the exercise of
such right. Whether in a particular set of circumstances, a person legitimately acted in the
exercise of the right of private defence is a question of fact to be
@page-SC2008
determined on the facts and circumstances of each case. No test in the abstract for
determining such a question can be laid down. In determining this question of fact, the
Court must consider all the surrounding circumstances. It is not necessary for the accused
to plead in so many words that he acted in self-defence. If the circumstances show that
the right of private defence was legitimately exercised, it is open to the Court to consider
such a plea. In a given case the Court can consider it even if the accused has not taken it,
if the same is available to be considered from the material on record. Under Section 105
of the Indian Evidence Act, 1872 (in short 'the Evidence Act'), the burden of proof is on
the accused, who sets up the plea of self-defence, and, in the absence of proof, it is not
possible for the Court to presume the truth of the plea of self-defence. The Court shall
presume the absence of such circumstances. It is for the accused to place necessary
material on record either by himself adducing positive evidence or by eliciting necessary
facts from the witnesses examined for the prosecution. An accused taking the plea of the
right of private defence is not necessarily required to call evidence; he can establish his
plea by reference to circumstances transpiring from the prosecution evidence itself. The
question in such a case would be a question of assessing the true effect of the prosecution
evidence, and not a question of the accused discharging any burden. Where the right of
private defence is pleaded, the defence must be a reasonable and probable version
satisfying the Court that the harm caused by the accused was necessary for either warding
off the attack or for forestalling the further reasonable apprehension from the side of the
accused. The burden of establishing the plea of self-defence is on the accused and the
burden stands discharged by showing preponderance of probabilities in favour of that
plea on the basis of the material on record. (See Munshi Ram and Ors. v. Delhi
Administration (AIR 1968 SC 702). State of Gujarat v. Bai Fatima (AIR 1975 SC 1478),
State of U.P. v. Mohd. Musheer Khan (AIR 1977 SC 2226), and Mohinder Pal Jolly v.
State of Punjab (AIR 1979 SC 577). Sections 100 to 101 define the extent of the right of
private defence of body. If a person has a right of private defence of body under Section
97, that right extends under Section 100 to causing death if there is reasonable
apprehension that death or grievous hurt would be the consequence of the assault. The oft
quoted observation of this Court in Salim Zia v. State of U.P. (AIR 1979 SC 391), runs as
follows :
"It is true that the burden on an accused person to establish the plea of self-defence is not
as onerous as the one which lies on the prosecution and that, while the prosecution is
required to prove its case beyond reasonable doubt, the accused need not establish the
plea to the hilt and may discharge his onus by establishing a mere preponderance of
probabilities either by laying basis for that plea in the cross-examination of the
prosecution witnesses or by adducing defence evidence."
8. The accused need not prove the existence of the right of private defence beyond
reasonable doubt. It is enough for him to show as in a civil case that the preponderance of
probabilities is in favour of his plea.
9. The number of injuries is not always a safe criterion for determining who the aggressor
was. It cannot be stated as a universal rule that whenever the injuries are on the body of
the accused persons, a presumption must necessarily be raised that the accused persons
had caused injuries in exercise of the right of private defence. The defence has to further
establish that the injuries so caused on the accused probabilise the version of the right of
private defence. Non-explanation of the injuries sustained by the accused at about the
time of occurrence or in the course of altercation is a very important circumstance. But
mere non-explanation of the injuries by the prosecution may not affect the prosecution
case in all cases. This principle applies to cases where the injuries sustained by the
accused are minor and superficial or where the evidence is so clear and cogent, so
independent and disinterested, so probable, consistent and credit-worthy, that it far
outweighs the effect of the omission on the part of the prosecution to explain the injuries.
[See Lakshmi Singh v. State of Bihar (AIR 1976 SC 2263)]. A plea of right of private
defence cannot be based on surmises and speculation. While considering whether the
right of private defence is available to an accused, it is not relevant whether he may have
a chance to inflict severe and mortal injury on the aggressor. In order to find whether the
right of private defence is available to an accused, the entire incident must be examined
with care and viewed in its
@page-SC2009
proper setting. Section 97 deals with the subject matter of right of private defence. The
plea of right comprises the body or property (i) of the person exercising the right; or (ii)
of any other person; and the right may be exercised in the case of any offence against the
body, and in the case of offences of theft, robbery, mischief or criminal trespass, and
attempts at such offences in relation to property. Section 99 lays down the limits of the
right of private defence. Sections 96 and 98 give a right of private defence against certain
offences and acts. The right given under Sections 96 to 98 and 100 to 106 is controlled by
Section 99. To claim a right of private defence extending to voluntary causing of death,
the accused must show that there were circumstances giving rise to reasonable grounds
for apprehending that either death or grievous hurt would be caused to him. The burden is
on the accused to show that he had a right of private defence which extended to causing
of death. Sections 100 and 101, IPC define the limit and extent of right of private
defence.
10. Sections 102 and 105, IPC deal with commencement and continuance of the right of
private defence of body and property respectively. The right commences, as soon as a
reasonable apprehension of danger to the body arises from an attempt, or threat, or
commit the offence, although the offence may not have been committed but not until
there is that reasonable apprehension. The right lasts so long as the reasonable
apprehension of the danger to the body continues. In Jai Dew. State of Punjab (AIR 1963
SC 612), it was observed that as soon as the cause for reasonable apprehension
disappears and the threat has either been destroyed or has been put to route, there can be
no occasion to exercise the right of private defence.
11
. In order to find whether right of private defence is available or not, the injuries received
by the accused, the imminence of threat to his safety, the injuries caused by the accused
and the circumstances whether the accused had time to have recourse to public authorities
are all relevant factors to be considered. Similar view was expressed by this Court in
Biran Singh v. State of Bihar (AIR 1975 SC 87). (See: Wassan Singh v. State of Punjab
(1996) 1 SCC 458, Sekar alias Raja Sekharan v. State represented by Inspector of Police,
T.N. (2002 (8) SCC 354). 1995 AIR SCW 4625
2000 AIR SCW 4315
12
. As noted in Butta Singh v. The State of Punjab (AIR 1991 SC 1316), a person who is
apprehending death or bodily injury cannot weigh in golden scales in the spur of moment
and in the heat of circumstances, the number of injuries required to disarm the assailants
who were armed with weapons. In moments of excitement and disturbed mental
equilibrium it is often difficult to expect the parties to preserve composure and use
exactly only so much force in retaliation commensurate with the danger apprehended to
him where assault is imminent by use of force, it would be lawful to repel the force in
self-defence and the right of private-defence commences, as soon as the threat becomes
so imminent. Suchsituations have to be pragmatically viewed and not with high-powered
spectacles or microscopes to detect slight or even marginal overstepping. Due weightage
has to be given to, and hyper technical approach has to be avoided in considering what
happens on the spur of the moment on the spot and keeping in view normal human
reaction and conduct, where self-preservation is the paramount consideration. But, if the
fact situation shows that in the guise of self-preservation, what really has been done is to
assault the original aggressor, even after the cause of reasonable apprehension has
disappeared, the plea of right of private-defence can legitimately be negatived. The Court
dealing with the plea has to weigh the material toconclude whether the plea is acceptable.
It is essentially, as noted above, a finding of fact. 1991 AIR SCW 1072
13. The right of self-defence is a very valuable right, serving a social purpose and should
not be construed narrowly. (See Vidhya Singh v. State of M.P. (AIR 1971 SC 1857).
Situations have to be judged from the subjective point of view of the accused concerned
in the surrounding excitement and confusion of the moment, confronted with a situation
of peril and not by any microscopic and pedantic scrutiny. In adjudging the question as to
whether more force than was necessary was used in the prevailing circumstances on the
spot it would be inappropriate, as held by this Court, to adopt tests by detached
objectivity which would be so natural in a Court room, or that which would seem
absolutely necessary to a perfectly cool bystander. The person facing a reasonable
apprehension of threat to himself cannot be expected to modulate his defence step by step
with any arithmetical exactitude of only that much which is required in the thinking of a
man in ordinary
@page-SC2010
times or under normal circumstances.
14. In the illuminating words of Russel (Russel on Crime, 11th Edition Volume I at page
49) :
"....a man is justified in resisting by force anyone who manifestly intends and endeavours
by violence or surprise to commit a known felony against either his person, habitation or
property. In these cases, he is not obliged to retreat, and may not merely resist the attack
where he stands but may indeed pursue his adversary until the danger is ended and if in a
conflict between them he happens to kill his attacker, such killing is justifiable."
15. The right of private defence is essentially a defensive right circumscribed by the
governing statute i.e. the IPC, available only when the circumstances clearly justify it. It
should not be allowed to be pleaded or availed as a pretext for a vindictive, aggressive or
retributive purpose of offence. It is a right of defence, not or retribution, expected to repel
unlawful aggression and not as retaliatory measure. While providing for exercise of the
right, care has been taken in IPC not to provide and has not devised a mechanism
whereby an attack may be a pretence for killing. A right to defend does not include a right
to launch an offensive, particularly when the need to defend no longer survived.
16. The Trial Court and the High Court rightly held that the appellants are not protected
by the right of private defence.
17. Other question is that of sentence. Considering the factual scenario, the sentence of
appellant Narain is reduced to seven years. In respect of others no interference is called
for. Amount of fine imposed remain and default stipulation needs no interference.
18. The appeal by appellant Narain Singh is allowed to the aforesaid extent, while the
appeal by the others stands dismissed.
Order accordingly.
AIR 2008 SUPREME COURT 2010 "T. Nagappa v. Y. R. Muralidhar"
(From : Karnataka)*
-2008.
T. Nagappa v. Y.R. Muralidhar.
(A) Negotiable Instruments Act (26 of 1881), S.20, S.138, S.139 - Criminal P.C. (2 of
1974), S.243(2) - Constitution of India, Art.21 - NEGOTIABLE INSTRUMENT -
DISHONOUR OF CHEQUE - WARRANT CASE - RIGHT TO LIFE - Dishonour of
cheque - Defence of misuse of cheque by complainant - Application to call for expert
opinion - Rejection of by lower Courts, in light of presumption raised u/S.20 and u/S.139
of Act of 1881 - Improper - Opportunity must be granted to accused for adducing
evidence.
Cri. Petn. No.108 of 2007, D/-24-01-2007 (Kant.) Revers.
(2007) 2 SCC 258, Rel. on. (Paras 7, 8, 9)
(B) Criminal P.C. (2 of 1974), S.243(2) - WARRANT CASE - EVIDENCE - Evidence
for defence - Application for calling in expert opinion - Inadvertently mentioned as
u/S.293 - Not of much relevance - So long as Court has requisite jurisdiction to pass an
order. (Para 11)
(2007) 2 SCC 258 (Rel. on) 9
S.B. Sanyal, Sr. Advocate, Rajesh Mahale, for Appellant; Ms. Kiran Suri, S.J. Amith, Ms.
Aparna Bhat, for Respondent.
* Cri. Petn. No.108 of 2007, D/- 24-1-2007
Judgement
S. B SINHA, J. :- Leave granted.
2. Appellant is facing criminal charges before the Court of XV Additional Chief
Metropolitan Magistrate, Bangalore in C.C. No.6835 of 2005 purported to be under
Section 138 of the Negotiable Instruments Act. He is said to have issued a cheque in
favour of the respondent for a sum of Rs. 7,50,000/-on 8-10-2004 which on depositing in
the Bank was allegedly returned unpaid. A complaint petition was filed by the respondent
contending that the appellant had committed an offence under Section 138 of the
Negotiable Instruments Act.
3. On or about 1-8-2006, the appellant filed an application under Section 243 of the Code
of Criminal Procedure wrongly mentioned as Section 293 of the Code of Criminal
Procedure, 1973 for referring the cheque in question for examination by the Director of
Forensic Science Laboratory for determining the age of his signature, contending that the
respondent had obtained a signed cheque from him in the year 1999 as a security for a
hand loan of Rs. 50,000/- which had been paid back, but instead of returning the cheque,
the same has been misused by entering a huge amount, which he did not owe to the
appellant.
4. By reason of an order dated 29-11-2006, the learned Magistrate dismissed the said
application, opining :
"Another main contention of the accused
@page-SC2011
is that the cheque was signed in the year 1999 and the writing appearing on the cheque
has been filled up in the month of August, October and December 2004. The accused is at
liberty to prove the said aspect by leading a cogent evidence. In my opinion, to prove the
age of the writing on Exp-2 it is not necessary to send the Exp-2 to the handwriting
expert. Thus, viewing from any angle, I do not find any good reason to refer the Exp-2 to
the handwriting expert as prayed in the petition. Hence I answer the above said point in
the negative."
5. A revision application filed there-against has also been dismissed by the High Court,
stating :
"It is the case of the accused/petitioner herein that the signed cheque of the accused is
misused by the petitioner by filling contents therein after about 5 years. According to the
petitioner the cheque is of the year 1999 and the complainant has filled up the cheque by
dating the said as 9-10-2004. Hence to ascertain the age of the cheque, the application
came to be filed by the petitioner which is rejected.
The evidence of DW-2, the Assistant Manager of UCO Bank, Jayanagar Branch,
Bangalore coupled with the recital of Ex.D-11 i.e. the register pertaining to issuance of
cheque book disclosed that the cheque containing Ex.P-2 (cheque leaf) was issued by the
UCO Bank to the accused on 6-5-1997. If it is so, ascertaining the age of the cheque does
not arise for consideration.
In this matter, the signature on the cheque is admitted. If it is so the petitioner cannot
dispute the contents of the cheque in view of the provisions of Section 20 of Negotiable
Instruments Act. Hence there is no need to refer the cheque for Hand Writing Expert."
6. The learned Trial Judge, as also the High Court, in support of their respective orders,
have relied upon Section 20 of the Negotiable Instruments Act, which reads as under :
"Section 20 - Inchoate stamped instruments. - Where one person signs and delivers to
another a paper stamped in accordance with the law relating to negotiable instruments
then in force in [India), and either wholly blank or having written thereon an incomplete
negotiable instrument, he thereby gives prima facie authority to the holder thereof to
make or complete, as the case may be, upon it a negotiable instrument, for any amount
specified therein and not exceeding the amount covered by the stamp. The person so
signing shall be liable upon such instrument, in the capacity in which he signed the same,
to any holder in due course for such amount; provided that no person other than a holder
in due course shall recover from the person delivering the instrument anything in excess
of the amount intended by him to be paid thereunder."
By reason of the aforementioned provision only a right has been created in the holder of
the cheque subject to the conditions mentioned therein. Thereby only a prima facie
authority is granted, inter alia, to complete an incomplete negotiable instrument.
The provision has a rider, namely, no person other than a holder in due course shall
recover from the person delivering the instrument anything in excess of the amount
intended by him to be paid therein.
7. When a contention has been raised that the complainant has misused the cheque, even
in a case where a presumption can be raised under Section 118(a) or 139 of the said Act,
an opportunity must be granted to the accused for adducing evidence in rebuttal thereof.
As the law places the burden on the accused, he must be given an opportunity to
discharge it.
An accused has a right to fair trial. He has a right to defend himself as a part of his human
as also fundamental right as enshrined under Article 21 of the Constitution of India. The
right to defend oneself and for that purpose to adduce evidence is recognized by the
Parliament in terms of sub-section (2) of Section 243 of the Code of Criminal Procedure,
which reads as under :
"Section 243 - Evidence for defence. - (1)
(2) If the accused, after he had entered upon his defence, applies to the Magistrate to
issue any process for compelling the attendance of any witness for the purpose of
examination or cross-examination, or the production of any document or other thing, the
Magistrate shall issue such process unless he considers that such application should be
refused on the ground that it is made for the purpose of vexation or delay or for defeating
the ends of justice and such ground shall be recorded by him in writing :
Provided that, when the accused has cross-examined or had the opportunity of cross-
examining any witness before entering on his defence, the attendance of such witness
shall not be compelled under this section, unless the Magistrate is satisfied that it is
necessary for the ends of justice."
8. What should be the nature of evidence is not a matter which should be left only to the
discretion of the Court. It is the accused who knows how to prove his defence. It is
@page-SC2012
true that the court being the master of the proceedings must determine as to whether the
application filed by the accused in terms of sub-section (2) of Section 243 of the Code is
bona fide or not or whether thereby he intends to bring on record a relevant material. But
ordinarily an accused should be allowed to approach the court for obtaining its assistance
with regard to summoning of witnesses etc. If permitted to do so, steps therefor, however,
must be taken within a limited time. There cannot be any doubt whatsoever that the
accused should not be allowed to unnecessarily protracting the trial or summon witnesses
whose evidence would not be at all relevant.
9. The learned Trial Judge as also the High Court rejected the contention of the appellant
only having regard to the provisions of Section 20 of the Negotiable Instruments Act. The
very fact that by reason thereof, only a prima facie right had been conferred upon the
holder of the negotiable instrument and the same being subject to the conditions as
noticed hereinbefore, we are of the opinion that the application filed by the appellant was
bona fide.
The issue now almost stands concluded by a decision of this Court in Kalyani Baskar
(Mrs.) v. M.S. Sampoornam (Mrs.) [(2007) 2 SCC 258] (in which one of us, L.S. Panta,
J., was a member) wherein it was held :
"12. Section 243(2) is clear that a Magistrate holding an inquiry under Cr PC in respect of
an offence triable by him does not exceed his powers under Section 243(2) if, in the
interest of justice, he directs to send the document for enabling the same to be compared
by a handwriting expert to compare the disputed signature or writing with the admitted
writing or signature of the accused and to reach his own conclusion with the assistance of
the expert. The appellant is entitled to rebut the case of the respondent and if the
document viz. the cheque on which the respondent has relied upon for initiating criminal
proceedings against the appellant would furnish good material for rebutting that case, the
Magistrate having declined to send the document for the examination and opinion of the
handwriting expert has deprived the appellant of an opportunity of rebutting it. The
appellant cannot be convicted without an opportunity being given to her to present her
evidence and if it is denied to her, there is no fair trial. "Fair trial" includes fair and proper
opportunities allowed by law to prove her innocence. Adducing evidence in support of
the defence is a valuable right. Denial of that right means denial of fair trial. It is essential
that rules of procedure designed to ensure justice should be scrupulously followed, and
the courts should be jealous in seeing that there is no breach of them."
10. However, it is not necessary to have any expert opinion on the question other than the
following :
"Whether the writings appearing in the said cheque on the front page is written on the
same day and time when the said cheque was signed as "T. Nagappa" on the front page as
well as on the reverse, or in other words, whether the age of the writing on Ex.P2 on the
front page is the same as that of the signature "T.Nagappa" appearing on the front as well
as on the reverse of the Cheque Ex.P2?"
11. Ms. Suri, however, pointed out that the application of the appellant being one under
Section 293 of the Code of Criminal Procedure was rightly rejected. It is now a well
settled principle of law that non-mentioning or wrong mentioning of provision of law
would not be of any relevance, if the Court had the requisite jurisdiction to pass an order.
12. For the aforementioned reasons, the impugned judgment cannot be sustained. It is set
aside accordingly with the aforementioned directions. Appeal is allowed.
Appeal allowed.
AIR 2008 SUPREME COURT 2012 "Parakh Foods Ltd., M/s. v. State of A. P."
PANTA, JJ.
Criminal Appeal No.559 of 2008 (arising out of S.L.P. (Cri) No.5972 of 2007), D/- 27 -3
-2008.
M/s. Parakh Foods Ltd. v. State of A.P. and Anr.
Prevention of Food Adulteration Act (37 of 1954), S.23 - Prevention of Food Adulteration
Rules (1955), R.37D - FOOD ADULTERATION - WORDS AND PHRASES -
INTERPRETATION OF STATUTES - Labelling of edible oils and fats - Prohibition to
use of expression like 'Super Refined'; 'Anti-Cholesterol' etc. etc. and such other
expressions exaggerating quality of product - Words "such other" would apply to
expressions exaggerating quality - Not to pictures given on labels - Appellant using
pictures of vegetables on label of his edible oil - Cannot be sued to have misbranded his
product.
Interpretation of Statutes - Residuary clause - Rules of ejusdem generis applies. (Paras
9, 10)
@page-SC2013
Ashok H. Desai, Sr. Advocate, M/s. Amit Dhingra and Aman Leekha (for M/s. Dua
Associates), for Appellant; Mrs. D. Bharathi Reddy, for Respondents.
* Cri. P. No.2841 of 2007, D/- 20-7-2007 (AP)
Judgement
1. P. P. NAOLEKAR, J. :-Leave granted.
2. This appeal arises from the judgment and order of the Andhra Pradesh High Court
whereby the High Court has held that from the evidence on record the article of food in
question, is soyabean oil. The label contains pictures of vegetables like cabbage, carrot,
brinjal, capsicum, cauliflower, tomato and onions which are in no way connected with
soyabean oil. Although the prosecution of the appellant is quashed, a clear case of
misbranding is made out.
3. The relevant facts of the case are that the appellant M/s. Parakh Foods Ltd. (now
Cargill Foods India Limited) is a company registered under the Companies Act, 1956.
The appellant is engaged in manufacture and sale of "Shaktimaan Refined Soyabean Oil",
a food product covered under the Prevention of Food Adulteration Act, 1954 (hereinafter
referred to as "the Act") and it sells and markets the said product throughout the country.
On 23-12-2003, respondent No.2, the Food Inspector, District Mahboob Nagar, Andhra
Pradesh visited the shop of M/s. Md. Dilawar General and Oil Shop No.2-10-4, Old
Gunj, Mahboob Nagar, being accused No. 1 vendor in the complaint. Respondent No.2
found a carton containing 20 packets of "Shaktimaan Refined Soyabean Oil" kept for sale
for human consumption. Respondent No.2 suspected the quality of oil to be adulterated
and purchased three packets each containing 1 litre oil and obtained cash receipt from the
vendor. Thereafter, the packets were sent to the Public Analyst, State Food Laboratory,
Nacharam, Hyderabad. The Public Analyst furnished his report on 31-01-2004 and
opined that the label contains pictures of vegetables like cabbage, carrot, brinjal,
capsicum, cauliflower, tomato and onions, which are in no way connected with soyabean
oil and said that the pictures of vegetables on the label is an exaggeration of the quality of
the product and hence violates Rule 37D of the Prevention of Food Adulteration Rules,
1955 (hereinafter referred to as the "PFA Rules") and, therefore, is misbranded.
4. Accordingly, the Food Inspector filed a complaint under the provisions of the Act
before the Magistrate. A case was registered under Section 16(1)(a)(i) of the Act for
alleged contravention of Section 2(ix)(k) and under Section 7(ii) of the Act read with
Rule 37D of the PFA Rules.
5. The prosecution initiated against the appellant was challenged by filing a petition
under Section 482 of the Code of. Criminal Procedure, 1973. The High Court decided the
criminal proceedings on 20-07-2007. The High Court came to the conclusion that the
vendor did not produce any warranty, thus the manufacturer or the dealer cannot be
prosecuted. When there is no allegation in the complaint alleging that the vendor
produced any warranty or bill with regard to the purchase of the food item in question
from accused No.2, that is the appellant herein, merely basing on the label declaration the
appellant cannot be prosecuted. However, me order of quashing will not preclude the
concerned Magistrate in arraying the appellant as an accused during the trial, if there is
any offence.
6. The High Court has also observed that it is clear that the article of food in question was
misbranded since none of the pictures contained on the label has nothing to do with the
article of food in question. Therefore, it is held to be a clear case of violation of Rule 37D
of the PFA Rules. Aggrieved by these findings, the present appeal is filed.
7. It is contended by Shri Ashok H. Desai, learned senior counsel for the appellant that
the article of food can be considered to be misbranded only when false claims are made
with respect to such article of food upon the label or otherwise and there is no statutory
prohibition under the Act in printing pictures of vegetables on the label of article of food
on which the said article of food may be used in the preparation/cooking of such
vegetables. Whereas it is submitted by the learned counsel for the State that the pictures
on the brand does not relate to the article which the appellant manufactures and sells and,
therefore, it would fall within the violation of Rule 37D of the PFA Rules as misbranded.
The relevant provision reads as under :-
RULE 37D - "Labelling of edible oils and fats : The package, label or the advertisement
of edible oils and fats shall not use the expressions "Super-Refined", "Extra-Refined",
"Micro-Refined", "Double-Refined", "Ultra-Refined", "Anti-Cholesterol", "Cholesterol-
Fighter", "Soothing to Heart", "Cholesterol-Friendly", "Saturated Fat Free" or such other
expressions which are an exaggeration of the quality of the product."
8. The provision for labelling of edible oils and fats is under Rule 37D of the PFA Rules
which specifies labelling of edible oils and fats. The Rule clearly states that package/
labelling or advertisement of edible oils and fats shall not use the expressions such as (i)
super-refined; (ii) extra-refined; (iii) micro-refined;
@page-SC2014
(iv) double-refined; (v) ultra-refined; (vi) anti-cholesterol; (vii) cholesterol fighter; (viii)
soothing to heart; (ix) cholesterol friendly; (x) saturated fat free, etc. It would be pertinent
to say that all these expressions from (i) to (x) are prohibited because if they are
mentioned on the labelling of the product they will tend to exaggerate the quality of the
product. The Rule further states that all such other expressions are also prohibited which
tend to exaggerate the quality of the product. For the purposes of interpretation of this
Rule the principle of ejusdem generis can be applied; ejusdem generis is a latin
expression which means "of the same kind", for example where a law lists specific
classes of persons or things and then refers to them in general, the general statements
only apply to the same kind of persons or things specifically listed. In other words, it
means words of similar class. According to Black's Law Dictionary (8th Edn. 2004), the
principle of ejusdem generis is where general words follow an enumeration of persons or
things, by words of a particular and specific meaning, such general words are not to be
construed in their widest extent, but are to be held as applying only to persons or things
of the same kind or class as those specifically mentioned. It is a cannon of statutory
construction that where general words follow the enumeration of particular classes of
things, the general words will be construed as applying only to things of the same general
class as those enumerated.
9. Keeping the above principle in mind, the words "such other" as used in Rule 37D is to
be read along with the subject matter in which they have been used. The residuary clause
of the rule has to be read in light of the ten prohibited expressions, and it becomes clear
that what is prohibited are only the expressions which are an exaggeration of the quality
of the product.
10. In the present case, it is true that the appellant has used pictures of vegetables on the
label of the product which is refined soyabean oil, which according to the appellant is to
depict the purpose for which the oil can be used, viz., preparation of the vegetables
depicted thereon. Unless the picture depicted on a label of edible oils and fats exaggerates
the quality of the product, it would not fall within the mischief of Rule 37D. In the
present case, the vegetables shown on the label of soyabean oil does not in any way
indicate that the quality of soyabean oil is 'super-refined', 'extra-refined', 'micro-refined',
'double-refined', 'ultra-refined', 'anti-cholesterol', 'cholesterol fighter', 'soothing to heart',
'cholesterol friendly', 'saturated fat free' etc., nor it indicates the exaggeration towards the
quality of the product to come within the mischief of Rule 37D of the PFA Rules. In our
opinion the High Court has committed a serious error in arriving at a finding that the
article of food (soyabean oil) was misbranded since the picture contained on the label has
nothing to do with the article of food in question, completely ignoring the fact that the
article of food can be used for cooking the vegetables shown in the picture which cannot
be said to be exaggerating the quality of the food in question.
11. For the aforesaid reasons, the appeal is allowed and the impugned finding of the High
Court as regards misbranding and violation of Rule 37D of the PFA Rules is set aside.
Appeal allowed.
AIR 2008 SUPREME COURT 2014 "Ponnumany v. V.A. Mohanan"
(From : Kerala)*
Coram : 2 S. B. SINHA AND PRAKASH PRABHAKAR NAOLEKAR, JJ.
Civil Appeal No.2151 of 2008 (arising out of S.L.P.(C) No. 5207 of 2006), D/- 27 -3
-2008.
Ponnumany alias Krishnan and Anr. v. V.A. Mohanan and Ors.
Motor Vehicles Act (59 of 1988), S.168, S.163A, Sch.2 - MOTOR VEHICLES -
Compensation - Determination - Claimant was paralysed due to head injury in accident -
Owned agricultural lands - But there is no convincing evidence to prove the income out
of that - That apart, since he owned the land it cannot be said that there is total loss of
income due to injury suffered by him - Thus calculation of amount of compensation on
basis of notional income - Not liable to be interfered with. (Paras 6, 7)
Ms. Hetu Arora (Naveen R. Nath), for Ap pellants; P.V. Yogeswaran, for Respondents.
* M.F.A. No. 780 of 1999, D/- 15-7-2005 (Ker).
Judgement
1. P. P. NAOLEKAR, J. :- Leave granted.
2. The first appellant met with a motor accident and as a result thereof he was pa ralysed
due to head injury. It was found by the Motor Accident Claims Tribunal that he was
having 100% disability and that he was an agriculturist having five acres of land. The
Tribunal on assessment of the evidence led by the parties fixed a sum of Rs. 10,000/-
@page-SC2015
as yearly income from agriculture and taking into consideration the age of the appellant,
multiplier of 13 was applied and was awarded an amount of Rs. 1,30,000/- towards loss
of earning capacity; Rs. 20,000/- towards the pain and suffering suffered by him; Rs.
3,000/- towards the cost of hospitalization; and Rs. 50,000/- towards continued loss of
amenities, totalling to a compensation of Rs. 2,03,000/-. Aggrieved by the quantum of
compensation awarded by the Tribunal, the appellant approached the High Court of
Kerala. The High Court partly allowed the appeal and modified the award. The High
Court was of the view that the income of the appellant should have been assessed on the
basis of notional income of a non-earning person as fixed in the Second Schedule to the
Motor Vehicles Act. Considering that the appellant would be entitled to Rs. 1,95,000/- as
loss in earning capacity, the High Court thus enhanced the amount of compensation under
that head by an amount of Rs. 65,000/-. The High Court was further of the view that the
appellant would require the life-long attention and for that he would be requiring
bystanders/nursing expenses and awarded Rs. 20,000/- on that account. Considering the
long term treatment from 1-7-1996 to 30-7-1996 in hospital and the nature of the injury
sustained, the compensation towards medical expenses was enhanced by an additional
amount of Rs. 10,000/-.
3. Thus, in the appeal the High Court has enhanced the amount of compensation by an
amount of Rs. 95,000/- with 7% interest per annum from the date of application till the
date of deposit. Aggrieved by the said order on account of inadequate compensation
under the headings of loss of income, pain and suffering and continuous loss of
amenities, the present appeal has been filed.
4. It is contended by the learned counsel for the appellants that the assessment of
compensation on the basis of notional income of a non-earning person according to the
Second Schedule to the Motor Vehicles Act, 1988, of Rs. 15,000/- as notional yearly
income of the accident victim applying the special provisions of Section 163A of the Act
was not correct when the evidence has been led to show that the appellant was an
agriculturist and holding 5 acres of land.
5. The assessment of damages to compensate the claimants is beset with difficulties
because from the nature of the things, it depends on many factors such as the amount that
the deceased would have earned during the remainder of his life, the chances that the
deceased may not have lived to their life expectancy, the chances that the deceased might
get more or less income.
6. In the present case, although the first appellant has placed material before the Court to
show that he owned the agricultural lands but there is no convincing evidence to prove
the income out of that. That apart, since he owned the land it cannot be said that there is a
total loss of income due to the injury suffered by the appellant: thus, the calculation of the
amount of compensation on the basis of the notional income cannot be faulted with.
7. For the aforesaid reasons, we do not find any good or sufficient reason to interfere with
the order passed by the High Court.
8. The appeal is dismissed.
Appeal dismissed.
AIR 2008 SUPREME COURT 2015 "Rama Devi v. Dilip Singh"
(From : Allahabad)*
Smt. Rama Devi v. Dilip Singh.
U.P. Zamindari Abolition and Land Reforms Act (1 of 1951), S.164, S.166, S.155 -
LAND REFORMS - APPLICABILITY OF AN ACT - MORTGAGE - SUPREME
COURT - Applicability - Mortgage with condition of sale - Refusal for retransfer of land
- Finding of fact that document was deed of sale and not mortgage - And respondent
continues to be in possession - Supreme Court declined to interfere with - Even assuming
said transaction was mortgage, yet in view of deeming provisions of S.164, it would be
deemed sale - As such appellant had lost all her rights in land in question.
1982 All LJ 29, Approved.
Transfer of Property Act (4 of 1882), S.58. (Paras 6, 8, 10)
1997 (29) All LR 627 (SC) 8
1983 All LJ 331 8
1982 All LJ 29 (Approved) 8, 9
AIR 1954 SC 345 (Ref.) 6
Manoj Swarup, Ms. Lalita Kohli, Ms. Charu Singhal (M/s. Manoj Swarup and Co.), for
Appellant; T.N. Singh, V.K. Singh, S.N. Singh, for Respondent.
@page-SC2016
* S.A. No. 1043 of 1999, D/- 25-1-2001 (All).

Judgement
HARJIT SINGH BEDI, J. :- In this appeal by special leave the facts have been taken
from the Judgment of the first appellate Court as they have not been detailed in the
judgment of the High Court.
2. The plaintiff-appellant Rama Devi executed a mortgage/sale deed dated 15th May
1974 for 6 Bigha and 10 Biswas out of her total land area of 12 Bigha 1 Biswa for Rs.
13,000/- as she needed funds for her business. In the document aforesaid, it was recited
that in case the amount of Rs. 13,000/- plus interest at the rate of 24% per annum was
returned to her within a period of 5 years the land would be re-conveyed to her. It is the
case of the appellant that she had made a request to the respondent within the aforesaid
period for retransfer but the respondent had refused to accede thereto. This refusal
prompted the appellant to issue two notices dated 27th April 1979 and 9th April 1981 to
the respondent but he refused to accept the same but under the influence of the local
people he returned the possession of the land to her in June 1984. As the necessary
reconveyance had not been executed by the respondent, the appellant filed a suit praying
that :
(1) A decree for redemption of the conditional mortgage deed dated 15-4-1974, registered
on 24th May 1974 be passed in favour of the plaintiff and against the defendant in respect
of the property as detailed below :
Property in dispute situated in Village Pokhrain, Tehsil Bhognipur, District Kanpur Dehat
- Area 6 Bighas 10 Biswas share out of 12 Bighas 1 Biswa of Plot No. 958.
(2) Relief of permanent injunction claimed restraining the defendant from interfering in
plaintiffs possession.
3. The defendant respondent admitted the execution of the document dated 15th May
1974 but contested the suit on various grounds. On the pleading of the parties the
following issues were framed :
1. Whether the document dated 15-5-74 executed between the parties is a conditional
Benama, as has been stated by the plaintiff in para 1 of the petition or it is of the nature of
complete sale (out and out sale with a condition of repurchase) as has been strated by the
defendant, its effect in both the circumstances.
2. Whether the defendant in the month of June 1984 has returned the possession to the
plaintiff and the plaintiff is in possession of the land in dispute. If yes, then its effect.
3. Whether the suit for amendment (redemption) is not maintainable in law.
4. Whether the deal in suit is a complete sale with the effect of Zamindari Abolition Act.
5. Whether the plaintiff has not got done the resale within the prescribed time as has been
stated by the defendant.
6. To what relief the plaintiff is entitled to.
7. What the defendant was in possession of the agricultural land in dispute as a cultivator
up to the year 1984, as is the submission of the plaintiff.
8. Whether the defendant had got the document dated 15-5-1974 in question executed in
place of mortgage on interest, as conditional sale, by way of conspiracy and
fraud...................in case yes, then its effect.
4. The trial court in its judgment dated 20th March 1996 decided issue Nos. 1 and 4
together and held that the document dated 15th May 1974 was not a mortgage but was in
fact a sale and that the respondent continued to be in possession of the land in dispute. On
issue Nos. 3 and 5, the learned trial Judge came to the conclusion that the appellant did
not have any right to get the property redeemed and on issue No. 7 reiterated that the
document dated 15th May 1974 constituted a sale. On issue No. 8, the trial court held that
there was no evidence of fraud etc. and accordingly dismissed the suit vide judgment
dated 20th May 1996. An appeal was thereafter filed by the unsuccessful plaintiff. The
first appellate court framed two points for consideration and after examining the contents
of the document dated 15th May 1974 and the evidence of the parties, endorsed the
findings of the trial court that the document aforesaid was in fact a deed of sale and not a
mortgage and would also be deemed to be a sale under section 164 of the U.P. Zamindari
Abolition and Land Reforms Act, 1950 (hereinafter called the Act) and as this was a
special Act, it would supersede all others and as such the provisions of the Transfer of
Property Act would not be applicable. It was further concluded that as the appellant had
not sought the reconveyance within 5 years, as stipulated in the agreement of 15th May
@page-SC2017
1974 she had in any case lost her right to the reconveyance. The argument of the learned
counsel for the appellant that as section 155 of the Act placed an embargo on the transfer
of agricultural land by a Bhumidhar which made the transaction of 15th May 1974 non
est in view of the provisions of section 166 of the Act, was also repelled by observing that
section 155 would have no applicability in such a case. The first appellate court
accordingly dismissed the appeal leading to a second appeal in the Allahabad High Court.
The learned Judge by his order dated 25th January 2001 accepted the findings recorded
by the two subordinate courts and dismissed the appeal. The present matter is here at the
instance of the plaintiff.
5. The learned counsel for the appellant has raised several arguments in the course of the
hearing. He has pointed out that the transaction of 15th May 1974 was a mortgage by
way of conditional sale as envisaged under Section 58-C of the Transfer of Property Act
and as such the appellant was entitled to seek its redemption within a period of 30 years
and the findings of the courts below to the contrary limiting the period to 5 years was
erroneous. It has also been reiterated that Section 164 of the Act was not applicable in
view of the specific bar under Section 155 read with Section 166 on the transfer of
possession of land by a Bhumidhar in order to secure a debt. The learned counsel for the
respondent has, however, pointed out that there was a concurrent finding of fact that the
transaction of 15th May 1974 was in fact a sale outright and as such the question of re-
conveyance within 5 years or 30 years had to be ruled out. It has also been argued that
even assuming that the aforesaid document constituted a mortgage, yet by the deeming
provisions of Section 164, such mortgage would be deemed to be a sale in the hands of
the transferee and as such the appellant had lost all her rights in the land in question.
6. We have heard the learned counsel for the parties and gone through the record. The
three courts below have examined the document dated 15th May 1974 and concluded that
it was in fact a sale and not a mortgage, as understood under section 58-C. In Chunchun
Jha vs. Ebadat Ali and Anr. AIR 1954 SC 345, this Court has held that a document has to
be construed and interpreted as a whole in order to arrive at a conclusion as to its true
meaning and import and to determine whether it was a mortgage by way of conditional
sale or a sale outright. We also find from the evidence on record that the possession had
been transferred to the respondent herein at the time of the execution of the document on
15th May 1974 and the respondent continues to be in possession as of today as per the
findings of the three courts below. We are, therefore, disinclined to interfere with the
findings of fact for these reasons.
7. Even otherwise assuming for a moment that the transaction was in fact a mortgage, the
appellant has lost all her rights in the property by virtue of the deeming provisions in
section 164 of the Act. We reproduce Sections 155, 164 and 166 of the Act herein below :
"Sec. 155. Mortgage of land by a bhumidhar.- No bhumidhar shall have the right to
mortgage any land belonging to him as such where possession of the mortgaged land is
transferred or is agreed to be transferred in future to the mortgagee as security for the
money advanced or to be advanced.
Sec. 164. Transfer with possession by a bhumidhar to be deemed a sale. Any transfer of
any holding or part thereof made by a bhumidhar by which possession is transferred to
the transferee for the purpose of securing any payment of money advanced or to be
advanced by way of loan, and existing or future debt or the performance of an
engagement which may give rise to a pecuniary liability, shall, notwithstanding anything
contained in the document of transfer or any law for the time being in force, be deemed at
all times and for all purposes to be a sale to the transferee and to every such sale the
provisions of sections 154 and 163 shall apply.
Sec. 166. Transfer made in contravention of the Act to be void. [Every transfer made in
contravention of the provisions of this Act shall be void.]"
8. Relying on the express embargo placed by Section 155, Mr. Swarup has argued that as
the land had been mortgaged by a Bhumidhar contrary to the provisions of Section 155,
the said transaction was deemed to be void in terms of section 166. In this connection, the
learned counsel has placed reliance on P.B.Maganbhai and Anr. vs. P.K.Ambaram and
Ors. 1997 Allahabad L.R.
@page-SC2018
Vol. 29, P.627. It has also been submitted that the very wording of section 164 showed
that certain kinds of transactions would be deemed to be sales and as the finding of the
courts below was that the agreement of 15th May 1974 was in fact a sale, the question of
any deeming provision identifying a sale transaction as a deemed sale would not arise.
The learned counsel for the respondent has, however placed reliance on Smt. Bhagwatia
vs. Dy. Director of Consolidation at Deoria and Ors. 1982 Allahabad L.J. 29 and Sati
Prasad and Anr. Vs. The Dy. Director of Consolidation, Kanpur and Ors. 1983 Allahabad
L.J. 331 to contend that a mortgage by conditional sale would be deemed to be a sale by
fiction of law and that section 155 of the Act would not be applicable in the present case
as interest in the property had also been transferred and possession handed over to the
respondent whereas section 155 talked only about possession.
9
. We have considered the arguments advanced by the learned counsel for the parties. A
bare perusal of section 155 would reveal that it would apply to a mortgage where the
possession of land has been transferred or is agreed to be transferred in the future as
security for the money advanced or to be advanced and it is such a transaction which is
held to be void under section 166. Section 164 however talks about transfer of a holding
or part thereof made by a bhumidhar by which possession has been transferred for the
purpose of securing any payment of money etc. and it says that notwithstanding anything
contained in the document of transfer or any law for the time being in force, such a
transaction would be deemed to be a sale to the transferee and to every such sale the
provisions of Section 155 and section 166 would not apply. We find that the respondents
stand is supported by the judgments that have been cited. In Bhagwatias case (supra), the
petitioners husband executed a usufructuary mortgage deed and possession had also been
transferred to the mortgagee for securing repayment of the loan. The learned Judge held
that this mortgage would be deemed to be a sale under section 164 ofthe Act. While
dealing with an identical situation and to Section 164 this is what the learned Single
Judge had to say : 1982 All LJ 29
"It is apparent from the aforesaid section that the usufructuary mortgage of Bhumidhari
land, where possession is transferred as security for payment of loan, would be covered
by the provisions of S. 164 and notwithstanding anything contained in the document of
transfer or any law for the time being in force, it would be deemed to be sale to the
transferee itself. It, therefore, follows that the covenant contained in the usufructuary
mortgage deed in question that the mortgagor would be entitled to redeem the property by
making payment of loan and within a period of three years is of no consequence as the
transfer by way of usufructuary mortgage in question would be deemed to be sale under
S. 164 of the U.P. Zamindari Abolition and Land Reforms Act.
In the aforesaid case the question regarding legal status of the person who was put in
possession in lieu of the interest was considered in the light of provisions of the U.P.
Tenancy Act which was then in force when the possession was transferred to the creditor
and his possession was considered to be on behalf of the owner himself. In the above
mentioned case the interpretation of the S.164 of the U.P. Zamindari Abolition and Land
Reforms Act was not involved nor was it dealt with. The provisions of S. 164 of the said
Act were not attracted to the facts of the aforesaid case. The aforesaid case is thus clearly
distinguishable and is not applicable to the facts of the present case, where the question
involved is whether usufructuary mortgage would or would not be deemed to be a sale as
provided under S.164 of the said Act.
Under S. 164 of the U.P. Zamindari Abolition and Land Reforms Act it is provided that
such a transaction would be deemed at all times and for all purposes to be sale to the
transferee. It thus follows that it would be deemed to be sale from the very inception i.e.
from the date of execution of the usufructuary mortgage and transfer of possession in
pursuance thereof to the mortgagee. The provisions of S.60 of the Transfer of Property
Act would, therefore, not be applicable to such mortgage and the mortgagor will have no
right to redeem the mortgage and to claim possession from the mortgagee by offering to
make payment of loan amount. The aforesaid statutory right of redemption as provided
under section 60 of the Transfer of Property Act would not be available to the mortgagor
Bhumidhar in view of the provisions of S.164 of the U.P. Zamindari Abolition and Land
Reforms Act according to which for all times and for all purposes it
@page-SC2019
would be deemed sale to the transferee. If the transfer amounts to sale by legal fiction
under the aforesaid deeming provision, the transferor would be left with no right to
redeem the property in question. The provisions with regard to the rights of mortgagor
and mortgagee contained in the Chapter IV of the Transfer of Property Act would not
apply to such mortgages which are hit by the provisions of S. 164 of the U.P. Zamindari
Abolition and Land Reforms Act.
A deeming provision in a statute postulates that a thing deemed to be something else is
not, in fact, the thing which it is deemed to be something else, it is to be treated as if it is
that thing, though in fact it is not."
10. We respectfully agree with the observations aforesaid and find them to be fully
applicable to the facts of the present case. The argument of the learned counsel for the
appellant that there could be no deemed sale under Section 164 of the Act, has also to be
repelled in the light of the aforesaid observations. The judgment cited by the learned
counsel for the appellant also has no relevance to the facts of this case. In view of the
above findings, we are of the opinion that no further issue arises. We accordingly dismiss
the appeal.
Appeal dismissed.
AIR 2008 SUPREME COURT 2019 "Gurdial Kaur v. Piara Singh"
(From : 2006 (3) Pun LR 431)
-2008.
Gurdial Kaur (D) by L.Rs. v. Piara Singh (D) by L.Rs.
(A) Specific Relief Act (47 of 1963), S.12, S.16 - CONTRACT - AGREEMENT TO
SELL - DECREE - Specific performance of part of contract - Agreement to sell land -
Suit for specific performance - Plaint subsequently amended to change description of suit
property - Despite amendment substantial portion of suit land remained same - Decree for
specific performance can be granted as regards part of suit property - Additional
averment/proof of readiness, willingness - Not necessary since substantial parts of suit
property remained same. (Para 19)
(B) Specific Relief Act (47 of 1963), S.16(c) - CONTRACT - AGREEMENT TO SELL -
EXECUTION - SALE DEED - Suit for specific performance - Readiness and willingness
of plaintiff - Agreement to sell land - Plaintiff paying part of sale consideration on
execution of agreement - Averment in plaint that he had gone to Registration Office for
getting sale deed executed and registered but vendor did not turn up - Balance
consideration deposited on date of filing of suit - Readiness and willingness of plantiff
stands proved. (Para 20)
2008 AIR SCW 1774 (Ref.) 22
L. Nageswara Rao, Sr. Adv., Amit Sharma, Suchit Mohanty, Anupam Lal Das, for
Appellants; Paramjit Singh Patwalia, Sr. Adv., Aman Preet Singh Rahi, Devash Stripathi,
Ms. Tania Walia, Ashok K. Mahajan, for Respondents.
Judgement
S. B. SINHA, J.Leave granted.
1. Defendants in the Court below are the appellants before us. They are heirs and legal
representatives of one Gurcharan Singh. He was the owner of the lands bearing Survey
Nos. 101, 102, 159, 38, 85, Khatauni Nos. 118, 119, 224, 228, 45, 100 admeasuring 98
canals 19 marlas situated in Village Bora Walli, Tehsil Zira in the State of Punjab. He
entered into an agreement for sale of the aforementioned lands on or about 5-10-1964
with the plaintiff-respondent. A registered deed of sale was to be executed in terms
thereof on or before 15-6-1965. Indisputably, the respondent paid a sum of Rs. 7,000/-
out of a total consideration of Rs. 15,000/- to the said Gurcharan Singh on 5-10-1964. He
died on 13-3-1965.
2. Allegedly, prior thereto, the said Gurcharan Singh despite having been called upon to
execute and register the document did not come to the Registration Office. A suit for
specific performance of the agreement was filed against the appellants on 25-3-1966. In
the alternative, it was prayed that a sum of Rs. 7,000/- be paid to the respondent together
with interest.
3. Appellants herein in their written statement denied and disputed execution of the said
agreement by Gurcharan Singh alleging that he was a drunkard. It was also alleged that
Gurcharan Singh had executed a Will in their favour. In terms of a stipulation contained
in the said agreement dated 5-10-1964 the possession of the lands was delivered to the
vendee.
@page-SC2020
The said suit was decreed on 31-5-1966.
4. Appellants preferred an appeal thereagainst. By a Judgment and order dated 20-10-
1976, the said appeal was allowed and the suit was remanded to the Trial Court for a
fresh decision.
5. First respondent filed an application for amendment of plaint changing the area of the
land from 98 canals, 19 marlas to 89 canals, 17 marlas. Appellant in response to the said
application, although admitted the relationship between the parties, but without making
any specific averments stated that as to why the said application should not be allowed
merely "other amendments are opposed".
Appellants also filed a suit against the first respondent for recovery of possession on 19-
12-1977.
6. Respondent No. 1 filed another application for amendment whereby the area of the suit
land was amended to 94 canals 3 marlas.
7. Both the suits were heard together. The learned Trial Judge, refused to grant a decree
for specific performance of the agreement of sale, but decreed the suit in favour of
respondent No. 1 granting his alternative prayer for recovery for a sum of Rs. 8,260/-
from the appellants herein. In arriving at the said conclusion, the learned Trial Judge
noticed the averments made in the plaint which are as under :-
"The plaintiff has been and is ready to perform his part of the contract. The plaintiff
served a notice on Shrimati Prithpal Kaur for herself on behalf of her minor sons and
daughter who are defendants through his counsel on 8-6-65 intimating her about the
above contract. Defendant No. 2 Shrimati Prithpal Kaur refused to take delivery of the
notice. The notice is attached therewith."
Opining that the requirements to make averments in regard to readiness and willingness
on the part of vendee to perform his part of contract as contained in clause (c) of Section
16 of the Specific Relief Act, had not been satisfied, it was held :-
"The language of paras Nos. 3 and 5 of plaint will show that the plaintiff has averred that
he is ready to perform his part of the contract, but he has failed to aver that he has always
been also willing to perform his part of the contract."
8. An appeal was preferred thereagainst by the respondent No. 1 which was marked as
Civil Appeal No. 32 of 1978.
9. The First Appellate Court disagreed with the findings of the learned Trial Judge as
regards readiness and willingness on the part of the first respondent to perform his part of
contract holding that such a strict construction of the pleading are not warranted.
It was opined :-
"The appellant stated that he had always been ready to perform his part of the contract. It
was contended that it was not necessary to allege in the plaint that the plaintiff was ready
and willing to perform his part of the contract but it is to be seen from the circumstances
of the case whether he was so ready and willing to get the sale deed executed. The
conduct of the appellant from the very beginning was that he made all efforts to get the
sale deed executed and he had the required money with him. It was contended that the
word readiness denotes the capacity of a purchaser to purchase the land while the word
willingness denotes his conduct. In the plaint it was mentioned that the appellant was
ready to perform his part of the contract and his willingness was to be inferred from his
conduct and even if the word willingness was missing in the plaint that would not
disentitle the plaintiff from the specific performance of the contract because in case all
immoveable property damages do not furnish adequate relief....."
The Court of First Appeal was of the opinion that as the plaintiff/respondent failed to
show his readiness and willingness to perform his part of contract as contained in the said
agreement of sale dated 5-10-1964, so far as the new khasra Nos. are concerned, he was
not entitled to a decree for specific performance of contract stating :
"In the present case by adding two khasra numbers regarding which there was no contract
of sale the plaintiff-appellant made a change in the essential conditions of the contract
and thus he was not entitled to specific performance of the contract just as willingness of
a purchaser can be inferred from his conduct. Similarly his willingness in words is not
necessary. Where a purchaser includes land in the plaint seeking its sale by way of
specific performance of the contract which was not originally the
@page-SC2021
subject matter of the agreement he cannot be considered to be a person who is willing to
perform his part of the contract. The plaintiff should be ready and willing to perform his
part of the contract throughout the proceedings till the date of the decree and if prior to
that he negatives his readiness and willingness to perform his part of the contract by his
conduct he cannot claim specific relief of the contract."
".....In a suit for specific performance of the contract of sale the distinction between the
conduct which would disentitle the plaintiff from specific performance and the conduct
which would not so disentitle him is that the plaintiff's conduct shows that he was really
unwilling to buy the property then he is disqualified from specific performance but he
was always willing to buy the property but in doing so made a mistake in insisting on
something which he was not entitled to get from the defendant then such mistake would
not disqualify him from specific performance if the mistake was corrected in time and the
plaintiff had made it clear that he had withdrawn the mistaken demand and the mistake
did not detract his essential willingness to purchase the property."
10. Two second appeals were filed by the first respondent before the High Court. A
learned Single Judge of the Punjab and Haryana High Court did not frame any substantial
question of law at the outset and recorded as under :-
"After going through the record, I find that the application for amendment was filed on
the basis that in the Revenue papers the ownership of Gurcharan Singh vendor was
changed which must be due to Consolidation and the application was not opposed by the
opposite side except claim in costs which were allowed by the order of the Trial Court
dated 1st January, 1977. It is further clear from the record that in the written statement no
plea was taken that because of amendment there has been negation of contract. On this
basis it is urged by the learned counsel that the first appellate court had made out a new
case in deciding the relief to the appellant on the ground of negation of contract.
The other finding in the end of para is to the effect that the appellant had been ready and
willing to perform his part of the contract. Admitted stay to continue."
However, it appears that at a later stage, three substantial questions of law were
formulated namely :
1. Whether there is negation of contract on account of change of khasra No. pleaded by
the plaintiff by way of amendment in the plaint?
2. Whether the plaintiff was ready and willing to perform his part of the contract?
3. Whether the plaintiff is entitled to a decree for specific performance of agreement in
the facts and circumstances of the case?
The said appeals were allowed.
11. Mr. L. Nageswara Rao, the learned senior counsel appearing on behalf of the
appellant would submit that none of the questions aforementioned give rise to any
substantial question of law. The third purported question according to the learned counsel
is not at all a substantial question of law.
The first question according to the learned counsel is essentially a question of fact. In
regard to the second question, it was submitted that although this Court in some decisions
opined that it would be essentially a question of fact but in some decisions point out that
it would be a mixed question of law and fact and thus, in any event, the same being not a
substantial question of law, the impugned judgment cannot be sustained.
It was furthermore urged that the High Court committed a serious error as a decree could
not have been passed in favour of the first respondent as the subject matter of the
agreement had altered.
12. Mr. Paramjit Singh Patwalia, the learned senior counsel appearing on behalf of the
respondent, on the other hand, submitted that in view of the change in the Khasra Nos. or
Khewat Nos. in the revenue records, an amendment had to be brought about. The
amendment having taken effect from the date of the institution of the suit, the judgment
of the High Court should not be interfered with. It was urged that the learned Trial Judge
as also the first Appellate Court having rejected the plea of the appellants as regards the
genuineness of the agreement dated 5-10-1964 and/or purported execution of the Will by
Gurcharan Singh, it is not a fit case where this Court
@page-SC2022
should exercise its discretionary jurisdiction under Article 136 of the Constitution of
India.
It was submitted that escalation in price by itself may also not be a sufficient ground for
interfering with the impugned judgment particularly when the respondent had been in
possession of the said land for a long time and had made improvements thereupon.
13. A suit for specific performance of contract provides for a discretionary remedy. The
Court in terms of Section 20 of the said Act may for sufficient and cogent reasons refuse
to grant a decree for specific performance of contract. In a case of this nature, the Court
essentially would be concerned with the identity of the land which was the subject matter
of agreement. Like any other suit, the Court in terms of Order 7, Rule 7 of the Code of
Civil Procedure may, however, take into consideration the subsequent events including
the change in the revenue survey numbers in respect of a particular land. In other words,
if the land in suit remains the same which was the subject matter of an Agreement of
Sale, a decree for specific performance can be granted.
The matter, however, would be different where having regard to the consolidation or any
other proceedings, the subject matter of land itself changes resulting in substantive
change in the original agreement. In terms of Section 16(c) of the Specific Relief Act, the
Court must arrive at a finding that the plaintiff had not only averred, but also established
readiness and willingness on his part to perform his part of the contract. In this case, the
appellant paid a sum of Rs. 7,000/- on the date of the execution of the agreement. It has
been stated before us which has not been denied or disputed that at the time of filing of
the suit itself, the first respondent deposited the balance amount of Rs. 8,000/- in the
Court.
The original description of the suit land was as under :-
"Suit for specific performance of contract of sale in respect of the land measuring 98 Kls
19 marlas, Khewat No. 101, 102, 159, 38, 85, Khatauni Nos. 118, 119, 224, 220, 228, 45,
100, Khasra Nos.
63
7(8-0) 8(8-0) 9(8-0)
63
13/1(1-2) 14(8-0) 17/1(7-7) 6/3(0-16) 5/1 (5-0) 6/2 (5-0)
62
14(8-0) 7/2(0133/2(2-0) 4(8-0) 7/1 (77)
55 56 63
20/1(3-16) 13/1(1-10) 10(8-0) 18(8-,
However, upon amendment, the description of the suit lands as they stand now are as
under:- "Suit for specific performance of agreement of sale dated 5-10-64, that the
defendant Kirandip Kaur or in the alternative all the defendants should execute a sale
deed in respect of land measuring 94-kanals 3 marlas, khewat No. 47, khatoni Nos. 76
min, 76, 79, lilla Nos :
Rect. 58 Rect. 56 Rect. 62
13/1(0-16) 13/1(1-10), 7/1/2(2-0), 7/1/3(3-5)
Rect. 62
3/2(2-0) 4/1(2-8) 7/2(0-13) 14(8-0), 5/1(5-0) 6/2 (5-8)
Rect. 65
6/5(0-16) 7(8-0) 9(8-0) 10/1(6-12) 13/2 (6-10) 14(8-0) 17/1 (7-17) 18(8-0)"
14. We have noticed hereinbefore that the appellants did not spell out as to what were his
objections in regard to amendment of plaint. It was merely stated that "other amendments
are opposed". In response to the application for amendment it was stated;
"the application for amendments is opposed, it is belated and after thought"
15. It is therefore, evident that Gurcharan Singh was given two new plots which were not
the subject matter of the original agreement. The area also diminished. When the second
application for amendment of plaint was filed, no objection thereto was raised. Allegedly,
in the suit for recovery of possession, the appellants mentioned the same description of
land. How despite alteration in the description of the land in respect of a part of the suit
premises, the respondent came into possession, if at all, is not known.
16. We are not oblivious of the findings of the learned trial Court or the First Appellate
Court that the plaintiff/respondent did not bring on records any material to show that
owing to consolidation proceedings or
@page-SC2023
otherwise, there had been a change in the suit land in the sense that some other lands had
been allotted to Gurcharan Singh in stead and in place of the lands in suits.
17. We have noticed hereinbefore that the plaintiff/respondent was categorical in his
statement as to why the amendment had to be brought about, but neither the same was
opposed nor any amended written statement/additional written statement was filed.
Except the two plots, identity of the rest of the plots remained the same.
18. Mr. L. Nageshwar Rao, learned senior counsel may be right in his submission that
purported substantial questions of law as framed stricto sensu do not answer the
description as contained in sub-section (5) of Section 100 of the Code of Civil Procedure.
We, however, feel that the proper substantial question which should have been framed
having regard to the admitted position is as to whether the contract of sale came to an end
only on account of change of Khasra Nos., although the subject matter of the agreement
substantially remained the same.
19. If on the admitted fact, it is found that at least substantial portion of the land remained
the same, in our opinion, there does not exist any bar in granting a decree in respect of a
part of the suit property. For the said purpose, even Section 12 of the Specific Relief Act
would not stand as a bar. Section 12 of the Specific Relief Act reads thus;
"Section 12 - Specific performance of part of contract
(1) Except as otherwise hereinafter provided in this section the court shall not direct the
specific performance of a part of a contract.
(2) Where a party to a contract is unable to perform the whole of his part of it, but the part
which must be left unperformed be a only a small proportion to the whole in value and
admits of compensation in money, the court may, at the suit of either party, direct the
specific performance of so much of the contract as can be performed, and award
compensation in money for the deficiency.
(3) Where a party to a contract is unable to perform the whole of his part of it, and the
part which must be left unperformed either-
(a) forms a considerable part of the whole, though admitting of compensation in money;
or
(b) does not admit of compensation in money;
he is not entitled to obtain a decree for specific performance; but the court may, at the suit
of the other party, direct the party in default to perform specifically so much of his part of
the contract as he can perform, if the other party -
(i) in a case falling under clause (a), pays or has paid the agreed consideration for the
whole of the contract reduced by the consideration for the part which must be left
unperformed and a case falling under clause (b), 1[pays or had paid] the consideration for
the whole of the contract without any abatement; and
(ii) in either case, relinquishes all claims to the performance of the remaining part of the
contract and all right to compensation, either for the deficiency or for the loss or damage
sustained by him through the default of the defendant.
(4) When a part of a contract which, taken by itself, can and ought to be specifically
performed, stands on a separate and independent footing from another part of the same
contract which cannot or ought not to be specifically performed, the court may direct
specific performance of the former part."
Thus, for the reasons stated in the statutory provision, if a decree for specific performance
cannot be granted in respect of the entirety, an option in terms thereof has to be exercised.
The rigours of Section 16(c) of the Act, however, are not such which would for all intent
and purport to be strictly construed. Indisputably, it is necessary to make averments in
regard to the readiness and willingness as is required under Section 16(c) of the Act in
terms of Form 47 appended to the Code of Civil Procedure.
20. It is, however, trite that, even for the said purpose, the entirety of the plaint must be
taken into consideration. If upon reading the plaint in its entirety, the Court comes to the
conclusion that for all intent and purport, the requirements of Section 16(c) of the
Specific Relief Act stood complied with, no exception thereto can be taken. We have
noticed hereinbefore that the First Appellate Court inter alia opined that not only the
plaintiff has expressed his readiness to purchase the land, his willingness to do so can
@page-SC2024
be culled put from other averments made in the plaint as and in particular the one where
he had stated that he had gone to the Registration Office for getting the deed of sale
executed and registered but it was the defendant, who did not turn up thereafter. He has
also fulfilled the criteria of his readiness and willingness to perform his part of the
contract as not only he had paid a sum of Rs. 7,000/- on the date of the execution of the
agreement, he had deposited a balance sum of Rupees 8,000/- on the date of presentation
of the plaint. As a vendee what he could do was to offer the balance amount of
consideration to the vendor and make arrangements for getting the sale deed executed
and registered. If he has done all that, we are of the opinion that the Court of First Appeal
was right in holding that he was ready and willing to perform his part of the contract.
21. The Court of First Appeal, however, committed a serious error insofar as it failed to
take into consideration that the identity of a part of the land being the same, it was not
necessary to make any further averment or proof that he had been ready and willing to
perform his part of the contract in respect of the subject matter of the agreement.
Readiness and willingness to perform one's part of the contract must be confined to the
subject matter thereof. If subject matter of the suit remained the same only because
Khewat Nos. or Khatauni Nos. changed, the same ipso facto would not change. To the
extent the subject matter of the agreement remains the same, a suit for specific
performance of the contract can be decreed. Respondent, furthermore has all along been
in possession of the major portion of the land since a long time. He is said to have made
improvements on the land. It would be not, thus, equitable to deprive him from
possession at least from that portion of the land which was the subject matter of the
original agreement.
22
. We may at this stage also refer to a recent decision of this Court in Ramakrishna Pillai
and Anr. v. Muhammed Kunju and Ors. [2008 (2) SCALE 696]. The dispute before this
court was whether the High Court had erred in holding that the plea of readiness and
willingness was not raised by the plaintiffs. Allowing the appeal, it was held : 2008
AIR SCW 1774
"The High Court's judgment is clearly vulnerable. Firstly, there was no dispute ever
raised by the defendants about the readiness and willingness of the plaintiffs to fulfil their
obligations. The High Court was clearly in error in holding that no plea regarding
readiness and willingness was raised. As noted above, the trial court in its judgment has
referred to various portions of the averments in the plaint where the plaintiffs had
categorically stated that they were and are always willing to fulfil their part of the
obligations. The High Court also failed to notice that there was no plea either the written
statement or in the cross objections filed in the appeal before the High Court that the
plaintiffs were not ready and willing to fulfil their part of the obligation."
As regards the findings of the High Court it was further held :
"The conclusions are clearly contrary to the pleadings of the plaintiffs. It was
categorically stated in the plaint in both the suits that the plaintiffs are always ready and
willing to fulfil their part of the obligations and that defendants were evading the
execution for one reason or the other."
23. For the views we have taken, we are of the opinion that we in exercise of our
jurisdiction under Article 136 of the Constitution of India would refuse to interfere with
the judgment of the High Court, save and except to the extent the decree passed in respect
of two new Khasra Nos. namely 63-M/13/2(6-8) and 53M/13/KO-16).
24. However, having regard to the fact that the plaintiff/respondent No. 1 was denied the
decree for specific performance of contract by two courts, although he had been in
possession of the lands, in question from 1964, this Court in exercise of its discretionary
jurisdiction under Article 142 of the Constitution of India as also Sec. 28 of the Specific
Relief Act direct him to pay a further sum of Rs. 30,000/- to the appellant. The said sum
may be deposited within a period of six weeks from date.
On deposit of the said sum, the Court should draw up a decree in terms of this judgment.
This appeal is allowed to the aforementioned extent. There shall, however, in the facts
and circumstances of the case no order as to costs.
Order accordingly.
@page-SC2025
AIR 2008 SUPREME COURT 2025 "Chokalingaswami Idol v. Gnanapragasam"
(From : Madras)*
Coram : 2 TARUN CHATTERJEE AND H. S. BEDI, JJ.
Chokalingaswami Idol v. Gnanapragasam (Dead) by L.Rs.
Civil P.C. (5 of 1908), S.100 - APPEAL - DECLARATION OF TITLE - DECREE -
STATE - Appeal - Relief to non-appellant - Suit for declaration of title - Decree passed
against State Govt. - No appeal by State - Decree cannot be interfered with in appeal filed
by sub-defendant tenants.
S. A. No.899 of 1989, D/-10-01-2001 (Mad), Reversed. (Para 4)
Dr. A. Francis Julian, Sr. Adv., Sumit Kumar (M/s. T.T.K. Deepak and Co.), for
Appellant.
* S. A. No. 899 of 1989, D/- 10-1-2001 (Mad).
Judgement
HARJIT SINGH BEDI, J. :-The plaintiff is the appellant in this appeal. It arises out of the
following facts.
2. The appellant idol was installed by one Mirasu Nainar Pillai, the great grandfather of
the trustee R.Nambla Pillai in the year 1872. After the death of Mirasu Nainar Pillai his
son Sattanatha Pillai and after his demise his son Ramalingam Pillai was performing the
ritual pooja. Ramalingam Pillai executed a registered settlement deed dated 21st
September 1930 creating a charge over the property mentioned in the deed for meeting
the expenses of the pooja for the deity. In this settlement deed Ramalingam Pillai clearly
recited that the idol had been installed by his grandfather and that the family had been
carrying on the pooja as trustees. It also appears that Ramalingam Pillai had constructed
two houses in the land in question, one for his residence and the other for rent and that he
was maintaining the temple and idol as per requirement from the income received from
the properties. The appellant also claimed that as per the record, the land belonged to the
temple and that the respondents were taking steps to assign the vacant land to a society of
ex-service-men which was bent upon encroaching on the suit land. The appellant
accordingly filed a suit for declaration and permanent injunction claiming title to the
property as belonging to the idol and that the respondents were not justified in seeking to
encroach upon it.
The first defendant i.e. the State of Tamil Nadu represented by the District Collector in its
written statement controverted the plea of the appellant and alleged that the land did not
belong to the idol and that the appellant had no right to occupy the same as it was
poramboke land belonging to the Government. The plea of the appellant that it was in
possession of some of the vacant land was also controverted by the second and third
defendants Gnanapragasam Kombiah Thevar respectively whereas the fourth defendant,
Shanmugathammal, took the plea that he was in possession of the land in question on
payment. The Second Additional District Munsif, Thirunelveli decreed the suit as prayed.
Aggrieved thereby the second defendant Gnanapragasam alone preferred an appeal in the
sub-court, Tirunelvali. The appeal was allowed, and the suit dismissed holding that the
suit property was Government poramboke land and as such the idol had no right over the
suit property. Aggrieved thereby the plaintiff-appellant went before the High Court in
second appeal. The High Court in its judgment dated 10th January 2001 observed that the
finding of the first appellate court that the suit property was Government poramboke and
as such the plaintiff-appellant had no right over the suit property and that there was no
evidence to show that the land was indeed the land covered by the settlement deed and
concluded that the finding recorded by the appellate court was fully justified. The High
Court also noted the argument raised by the appellant that as defendant No. 1 i.e. the
State Government had not preferred any appeal against the order of the Munsif, the first
appellate court was not justified in interfering in the matter at the instance of the private
defendants and dealt with this apparent anomaly by observing :
"Even though the first defendant, the Government has not preferred any appeal, it is the
duty of the Court to find out, on analysis of oral as well as documentary evidence,
whether the plaintiff has got title to the suit property. The plaintiff has come forward with
the suit for declaration of title and injunction. So, the burden is heavily on the plaintiff to
establish the title. The documents produced prove that only the Government is the owner
of the suit property and the plaintiff has no manner of right. On analysis of such
documentary evidence, the first appellate court has come to the conclusion
@page-SC2026
that the plaintiff has no manner of right over the suit property. The Court is bound to
analyse the evidence and decide the case of the plaintiff when the plaintiff has sought for
the relief of declaration and injunction. So, it cannot be stated that since the first
defendant, Government did not prefer any appeal, the first appellate court was not bound
to decide the title in respect of the suit property. The first appellate court, on analysis of
the evidence has clearly found that the documents filed by the plaintiff did not establish
that the plaintiff is entitled to the suit property and as such the finding of fact on analysis
by the first appellate court is perfectly justified."
3. Having hold as above, the High Court then went on to consider the evidence on record
and concluded that the land in question was Government poramboke land and that the
other defendants were mere tenants thereon and that it had no hesitation in holding that
the "suit property is a Government poramboke land and the plaintiff has no manner of
right over the suit property and the finding of the first appellate court is perfectly
justified." The appeal was accordingly dismissed.
4. The only issue raised by the learned senior counsel for the appellant is that in view of
the findings of the trial court with regard to the ownership of the land against the
defendant No. 1 i.e. the State Government, no appeal had been filed by the State
Government and an appeal had been prepared by only one of the private co-defendants
who was allegedly a lessee of the land in question and in the light of this situation it was
not permissible for the first and second appellate courts to hold in favour of the State
Government and against the plaintiff-appellant. We find merit in this plea. In paragraph
16 of the judgment that we have quoted above, the High Court was cognizant of the fact
that it was perhaps over stepping its jurisdiction in the matter but chose to circumvent the
requirement of law in the belief that it was justified in doing so as the plaintiff-appellant
was attempting to swallow Government property. We are of the opinion, however, that
the State Government had accepted the judgment of the trial court as no appeal had been
filed by it. We accordingly allow the appeal, set aside the judgments of the first appellate
court and the High Court dated 21st November 1988 and 10th January 2001 respectively
and restore the judgment of the trial court. There will be no order as costs.
Appeal allowed.
AIR 2008 SUPREME COURT 2026 "State of Uttaranchal v. Sunil Kumar Singh Negi"
-2008.
State of Uttaranchal and Anr. v. Sunil Kumar Singh Negi.
Constitution of India, Art.226 - Industrial Disputes Act (14 of 1947), Sch.2, Item 6 -
WRITS - INDUSTRIAL DISPUTE - REINSTATEMENT - DAILY-WAGE WORKERS -
Writ Petition - Disposal by non-speaking order - Award of reinstatement in favour of
daily wager - Daily wager alleging non-compliance and demanding wages - Claim for
wages allowed - Petition against - Dismissal of petition by cryptic order despite stand
taken by department that daily wager had defaulted to join - Not sustainable.
W. P. (M/8.) No.820 of 2005, D/-26-07-2006. (Uttr.) Reversed. (Paras 8, 9)
2003 AIR SCW 5095 : AIR 2003 SC 4664 : 2003 Cri LJ 5040 (Rel. on.) 7
(2001) 10 SCC 607 (Rel. on) 6
AIR 1987 SC 724 : 1987 Cri LJ 698 (Ref.) 6
AIR 1982 SC 1215 : 1982 Cri LJ 1743 (1) (Rel. on) 6
Abhishek Attrey, Anuvrat Sharma, for Appellants; Puneet Aggrawal, Dr. Kailash Chand,
for Respondent.
Judgement
P. SATHASIVAM, J. :- Leave granted.
2. This appeal is directed against the judgment and final order dated 26-07-2006 passed
by the High Court of Uttaranchal at Nainital in Writ Petition (M/S) No.820 of 2005
whereby the High Court dismissed the same affirming the award of the Labour Court.
3. Brief facts :
The respondent was engaged by the appellant-Horticulture Department as daily wager on
07-09-1987 and thereafter when the work was available he was engaged from time to
time. However, he did not work for 240 days in any calendar year. He did not work as
daily wager w.e.f. 09-7-1992 of his own. In 2001, the respondent after about
@page-SC2027
nine years, raised an industrial dispute, which was referred to the Labour Court,
Dehradun and was registered as Adjudication Case No. 45 of 2001. On 23-07-2001, the
Labour Court directed the department to reinstate the respondent and to pay him Rs.
5,000/- by way of back wages and Rs. 1,000/- by way of expenses of the case. In
pursuance of the aforesaid award, Rs. 6,000/- was deposited and the respondent was
asked to work as daily wager in Government Fruit Preservation Centre, Pauri under the
Department of Horticulture and Food Processing, Pauri by letter dated 24-09-2002.
However, the respondent neither joined in the said Department for quite a long period of
one month nor gave any reply to the said letter. Instead of joining the work, the
respondent approached the Assistant Labour Commissioner by filing a petition under the
Industrial Disputes Act, 1947 and lodged a claim of Rs. 92,842/- on the ground that he
has not been provided the work and as such he is entitled to the salary w.e.f. February
2002 to January, 2005. In the said petition, an objection was filed by the appellant stating
therein that the respondent himself is guilty of disobedience and he himself did not come
to join the place of work despite the letter dated 24-09-2002. The Assistant Labour
Commissioner, Garhwal Mandal, Dehradun vide order dated 1-10-2003 directed the
appellant to send one more letter to the respondent by registered post calling upon him to
join the place of work. In compliance of the order, a letter was sent to the respondent on
08-10-2003. On 31-12-2004, the Assistant Labour Commissioner himself advised the
respondent to join the work. Instead of joining the work, the respondent filed his
rejoinder stating therein that the employer has provided the work at Pauri deliberately
with a view to harass him. On 27-05-2005, the Assistant Labour Commissioner, Garhwal
Mandal, Dehradun directed the appellant to pay Rs. 92,842/- to the respondent holding
that the appellant ought to have reinstated the respondent at the same place where he was
earlier working and from where his services were terminated and holding that the
respondent has been asked to work at Pauri to nullify the award passed by the Labour
Court. Aggrieved by the said order, the appellants filed Civil Writ Petition (M/S) No. 820
of 2005 in the High Court of Uttaranchal at Nainital and the same was dismissed on 26-
07-2006. Against the aforesaid order, the appellants preferred this appeal by way of
special leave.
4. Heard Mr. Abhishek Attrey, learned counsel appearing for the appellant and Mr. Puneet
Aggarwal, learned counsel appearing for the respondent.
5. In order to find an answer whether the impugned order of the High Court is
sustainable, it is relevant to refer to the assertion made by the State of Uttaranchal in their
petition before the High Court. It was stated that though respondent No 1 therein was
engaged as daily wager on 07-09-1987 and thereafter when the work was available, he
did not work for 240 days in any calendar year. Pursuant to the award of the Labour
Court dated 23-07-2001, the Horticulture Department deposited an amount of Rs. 6,000/-
and the workman was asked to work as daily wager in Government Food Preservation
Centre, Pauri under the Department of Horticulture and Food Processing. He did not join
the work as requested but he approached the Assistant Labour Commissioner by filing a
petition and lodged a claim of Rs. 92,842/-. The Assistant Labour Commissioner himself
advised the workman to join place of work at Pauri. However, the worker ignored the
advice of the Assistant Labour Commissioner. Thereafter, the very same officer directed
the Department to pay Rs. 92,842/- holding that the Department ought to have reinstated
the worker at the same place where his services were terminated. In several paragraphs,
the Department highlighted that the worker alone was guilty of not joining the place of
work despite repeated letters sent by them as such there was no justification to award a
claim of Rs. 92,842/-. With these particulars and other details, the Horticulture and Food
Processing Department filed a writ petition No. 820 of 2005 before the High Court,
Uttaranchal.
6. Now, let us see the impugned order passed by the High Court, which reads as under :
"I have perused the order dated 27-05-2005 passed by respondent No.2 and I do not find
any illegality in the order so as to interfere under Article 226/227 of the Constitution of
India. The writ petition lacks merit and is liable to be dismissed."
In view of the specific stand taken by the Department in the affidavit which we have
AIR 1982 SC 1215
AIR 1987 SC 724
@page-SC2028
referred above, the cryptic order passed by the High Court cannot be sustained. The
absence of reasons has rendered the High Court order not sustainable. Similar view was
expressed in State of U.P. vs. Battan and Ors. (2001) 10 SCC 607). About two decades
back in State of Maharashtra vs. Vithal Rao Pritirao Chawan, (1981) 4 SCC 129, the
desirability of a speaking order was highlighted. The requirement of indicating reasons
has been judicially recognized as imperative. The view was reiterated in Jawahar Lal
Singh vs. Naresh Singh and Ors. (1987) 2 SCC 222.
7
. In Raj Kishore Jha vs. State of Bihar and Ors. (2003) 11 SCC 519, this Court has held
that reason is the heartbeat of every conclusion and without the same, it becomes lifeless.
2003 AIR SCW 5095
8. Right to reason is an indispensable part of a sound judicial system; reasons at least

sufficient to indicate an application of mind to the matter before Court. Another rationale
is that the affected party can know why the decision has gone against him. One of the
salutary requirements of natural justice is spelling out reasons for the order made.
9. In the light of the factual details particularly with reference to the stand taken by the
Horticulture Department at length in the writ petition and in the light of the principles
enunciated by this Court, namely, right to reason is an indispensable part of sound
judicial system and reflect the application of mind on the part of the court, we are
satisfied that the impugned order of the High Court cannot be sustained.
10. Under these circumstances, the order of the High Court is set aside and we remit the
matter to it for fresh disposal in accordance with law by a reasoned order. The appeal is
disposed of. No costs. We make it clear that we have not expressed any opinion on the
merits of the case though we adverted to the grounds taken by the Department in their
writ petition.
Appeal allowed.
AIR 2008 SUPREME COURT 2028 "Bharat Coking Coal Ltd. v. M/s. Annapurna
Construction"
I. A. Nos. 1-2 of 2005 in Civ. Appeal Nos. 5647-5648 of 1997, D/- 5 -3 -2008.
Bharat Coking Coal Ltd. v. M/s. Annapurna Construction.
Arbitration Act (10 of 1940), S.14, S.2(e) - ARBITRATION - SUPREME COURT -
Making award rule of Court - Appropriate Court - Award passed by arbitrator appointed
by parties - Set aside by S.C. and matter referred to other arbitrator - Appropriate Court to
make second award rule would not be S.C. but Court having requisite jurisdiction
thereover.
While determining the question as to which Court would be the appropriate Court for the
purpose of filing of an award by the arbitrator a distinction has to be made in a case
where Supreme Court had no control over the proceedings and the case in which control
of proceedings of the arbitrator had been retained by Supreme court. In the former case,
having regard to the definition of the term 'Court' as contained in S. 2(c) award must be
filed before a Court which has the requisite jurisdiction thereover. While deciding such
question the principle that the right of appeal should not be taken away, should be
applied. There has to be strong reason to deny the suitor a right of appeal. (Paras 13, 16)
In the instant case, the matter came up before Supreme Court whence an arbitrator had
already been appointed and an award had been made. An arbitrator was appointed by
Supreme Court while setting aside the said award particularly in view of the fact that
construction of the contract was in question. The Court did not and could not retain any
control over the proceedings of the arbitrator. The appropriate Court for making award
rule of Court would not therefore be S. C. (Paras 12, 22)
(2007) I. A. No. 1 and 2 in SLP (C) No. 18344 of 2004, D/-24-01-2007 (SC) (Ref.)
19
2006 AIR SCW 5871 : AIR 2007 SC 465 : 2007 CLC 26 (Ref.) 8, 17
(2005) 10 SCC 353 (Ref.) 20
2004 AIR SCW 7104 (Ref.) 20
2003 AIR SCW 4146 : AIR 2003 SC 3660 3
2001 AIR SCW 5023 : AIR 2002 SC 302 (Ref.) 8
(1997) Civ. Appeal No. 3504 of 1992, D/-22-8-1997 (SC) (Ref.) 18
@page-SC2029
AIR 1981 SC 2075 (Disting) 11

AIR 1972 SC 1507 (Disting) 10
AIR 1960 SC 307 10
Ajit Kumar Sinha, Aabhas Parimal, for Appellant; S.B. Upadhyay, Sr. Adv., Santosh
Mishra, Paan Upadhyay, Shivmangal Sharma, Ms. Sharmila Upadhyay, for Respondent.
Judgement
S. B. SINHA, J. :- Which would be the appropriate court for the purpose of filing of an
award by the arbitrator is the question involved herein.
2. The said question arises in the following circumstances :
Respondent herein admittedly was a contractor of the appellant. Disputes and differences
having arisen between the parties, the arbitration agreement was invoked. An arbitrator
was appointed.
The parties hereto raised their claims and counter-claims before the arbitrator. He made
an award of Rs. 18,97,729.37 in favour of the respondent.
3
. A question of law was raised when the matter ultimately came up before the court
arising out of the proceedings for making the said award a rule of the court, and this
Court in its judgment dated 29-08-2003 [since reported in (2003) 8 SCC 154], while
setting aside the award, directed : 2003 AIR SCW 4146, Paras 39 and 40
"40. However, as noticed hereinbefore, this case stands on a different footing, namely,
that the arbitrator while passing the award in relation to some items failed and/ or
neglected to take into consideration the relevant clauses of the contract, nor did he take
into consideration the relevant materials for the purpose of arriving at a correct fact. Such
an order would amount to misdirection in law.
41. We are, therefore, of the opinion that the matter requires reconsideration. Having
regard to the facts and circumstances of this case and particularly keeping in view the fact
that the matter relates to pure interpretation of document which gives rise to question of
law and in stead and in place of remitting the matter to the named arbitrator, we would
direct that the disputes in relation to Claim Items 3, 7 and 11 be referred to the Hon'ble
Mr Justice D.N. Prasad, a retired Judge of the Jharkhand High Court on such terms and
conditions as may be mutually agreed upon by the parties. The learned arbitrator is
requested to consider the desirability of making his award as expeditiously as possible
keeping in view the fact that the matter has been pending for a long time."
4. Before the learned arbitrator, three claims were raised by the respondent, viz., Claim
Item Nos. 3, 7 and 11. Claim Item No. 3 related to extra items which has been rejected.
Claim Item No. 7 related to loss of profit. Respondent raised a claim of Rs. 27,77,714/-;
an award of Rs. 12,20,289/-was made. So far as Claim Item No. 11 is concerned, which
related to the escalation of materials, an award of Rs. 90,005/- was made. It appears that
before the arbitrator parties agreed that the award be filed before this Court.
However, an objection has been filed by the appellant wherein inter alia the jurisdiction
of this Court to entertain the objection filed under the Arbitration Act, 1940 (for short
"the 1940 Act") has been questioned.
5. Indisputably, the 1940 Act will apply in this case.
6. Section 2(c) of the 1940 Act read as under :
"2. In this Act, unless there is anything repugnant in the subject or context, -
*** *** ***
"Court" means a Civil Court having jurisdiction to decide the questions forming the
subject-matter of the reference if the same had been the subject-matter of a suit, but does
not except for the purpose of arbitration proceedings under Section 21 include a Small
Cause Court;"
7. Although strictly, it is not necessary but we may also notice the change in the definition
of the term "court" brought in by the Parliament in Arbitration and Conciliation Act, 1996
as contained in Section 2(1)(e) therein which reads as under :
"2. (1) In this Part, unless the context otherwise requires, -
*** *** ***
(e) "Court" means the Principal Civil Court of Original Jurisdiction in a district, and
includes the High Court in exercise of its ordinary original civil jurisdiction, having
jurisdiction to decide the questions forming the subject-matter of the arbitration if the
same had been the subject-matter of a suit, but does not include any civil court of a grade
inferior to such Principal Civil Court,
@page-SC2030
or any Court of Small Causes;"
8
. It is now a trite law that whenever a term has been defined under a statute, the same
should ordinarily be given effect to. There cannot, however, be any doubt whatsoever that
the interpretation clause being prefaced by the words "unless there is anything repugnant
in the subject and context" may in given situations lead this Court to opine that the
legislature intended a different meaning. [See State of Maharashtra v. Indian Medical
Association and Others (2002) 1 SCC 589 and Pandey and Co. Builders (P) Ltd. v. State
of Bihar and Another (2007) 1 SCC 467] 2001 AIR SCW 5023
2006 AIR SCW 5871
9. While determining such a question, the court ordinarily again must preserve the right
of a party to prefer an appeal. A right of appeal is a valuable right and unless there exist
cogent reasons, a litigant should not be deprived of the same. It is a statutory right.
10. With the aforementioned background, we may notice a few precedents operating in
the field.
In State of Madhya Pradesh v. M/s. Saith and Skelton (P) Ltd. [(1972) 1 SCC 702], apart
from appointing the arbitrator, this Court extended the time for making the award. It was
held that this Court would be entitled to entertain an application under Section 14(2) read
with Section 30 of the 1940 Act stating : AIR 1972 SC 1507, Paras 19 and 22
"18. According to Mr. Shroff the Award should have been filed, not in this Court, but in
the Court of the Addl. District Judge, Mandsaur, as that is the Court which will have
jurisdiction to entertain the suit regarding the subject-matter of the reference. We are not
inclined to accept this contention of Mr. Shroff. It should be noted that the opening words
of Section 2 are "In this Act, unless there is anything repugnant in the subject or context".
Therefore the expression "Court" will have to be understood as defined in Section 2(c) of
the Act, only if there is nothing repugnant in the subject or context. It is in that light that
the expression "Court" occurring in Section 14(2) of the Act will have to be understood
and interpreted. It was this Court that appointed Shri. V.S. Desai, on January 29, 1971, by
consent of parties as an arbitrator and to make his Award. It will be seen that no further
directions were given in the said order which will indicate that this Court had not
divested itself of its jurisdiction to deal with the Award or matters arising out of the
Award. In fact the indications are to the contrary. The direction in the order, dated January
29, 1971, is that the arbitrator is "to make his Award". Surely the law contemplates
further steps to be taken after the Award has been made, and quite naturally the forum for
taking the further action is only this Court. There was also direction to the effect that the
parties are at liberty to apply for extension of time for making the Award. In the absence
of any other court having been invested with such jurisdiction by the order, the only
conclusion that is possible is that such a request must be made only to the court which
passed that order, namely, this Court."
"21. in Ct A Ct. Nachiappa Chettiar v. Ct. A. Ct. Subramaniam Chettiar the question arose
whether the trial court had jurisdiction to refer the subject-matter of a suit to an arbitrator
when the decree passed in the suit was pending appeal before the High Court. Based upon
Section 21, it was urged before this Court that the reference made by the trial court, when
the appeal was pending, and the award made in consequence of such reference, were both
invalid as the trial court wasnot competent to make the order of reference. This Court
rejected the said contention and after a reference to Sections 2(c) and 21 of the Act held
that the expression "Court" occurring in Section 21 includes also the appellate court,
proceedings before which are a continuance of the suit. It was further held that the word
"suit" in Section 21 includes also appellate proceedings. In our opinion, applying the
analogy of the above decision, the expression "Court" occurring in Section 14(2) of the
Act will have to be understood in the context in which it occurs. So understood, it follows
that this Court is the Court under Section 14(2) where the arbitration Award could be
validly filed." AIR 1960 SC 307
11
. The said principle was reiterated in M/s. Guru Nanak Foundation v. M/s. Rattan Singh
and Sons [(1981) 4 SCC 634] wherein it was opined : AIR 1981 SC 2075
"18...By the decision of this Court in the appeal the 2nd respondent was removed as
arbitrator and the 3rd respondent was appointed as sole arbitrator. Indisputably,
@page-SC2031
therefore, the arbitrator was appointed by this Court. The order appointing the 3rd
respondent as arbitrator gave a further direction that the arbitrator shall enter upon the
reference within 15 days from the date of the Order of the Court and he should try to
dispose of the same as expeditiously as possible. The final Order was that the appeal was
disposed of in terms hereinabove indicated. A contention that thereafter this Court was
not in seisin of the matter was urged relying upon the fact that the appeal was disposed of
by the Order of the Court and that there was no further proceeding before this Court. This
contention has merely to be stated to be rejected, as will be presently pointed out. After
the disposal of the appeal, CMP No. 896 of 1977 was presented to this Court for
clarification and/or modification of the Order of the Court dated January 5, 1977. This
Court by its Order dated February 10, 1977, gave further directions and a specific time-
limit was fixed by this Court directing the 3rd respondent as arbitrator to conclude the
proceedings within four months from the date of Order of the Court. Even with regard to
the conduct of proceedings this Court directed that the 3rd respondent should proceed
with the reference from the stage where it was left by the 2nd respondent and that not
only that he may permit additional evidence to be led but he must consider the pleadings
and evidence already placed before the previous arbitrator. This will indisputably show
that this Court had complete control over the proceedings before the arbitrator."
12. Both the aforementioned decisions, therefore, proceed on the basis that the court had
complete control over the proceedings of the arbitrator. In the instant case, however, the
matter came up before this Court whence an arbitrator had already been appointed and an
award had been made. An arbitrator was appointed by this Court while setting aside the
said award particularly in view of the fact that construction of the contract was in
question. The court did not and could not retain any control over the proceedings of the
arbitrator.
13. Thus, a distinction must be borne in mind in a case where this Court had no control
over the proceedings and the case in which control of proceedings of the arbitrator had
been retained. In the former case, having regard to the definition of the term "court" as
contained in Section 2(c) of the 1940 Act, award must be filed before a court which has
the requisite jurisdiction thereover.
14
. We may notice that such a view has been taken by this Court in National Aluminium
Co. Ltd. v. Pressteel and Fabrications (P) Ltd. and Another [(2004) 1 SCC 540] stating :
2004 AIR SCW 7500
"9...In regard to the forum before which the application for modification or setting aside
the award is concerned, we find no difficulty in coming to the conclusion that in view of
the provisions of Section 34 read with Section 2(e) of the 1996 Act it is not this Court
which has the jurisdiction to entertain an application for modification of the award and it
could only be the principal civil court of original jurisdiction as contemplated under
Section 2(e) of the Act, therefore, in our opinion, this application is not maintainable
before this Court."
15
. Yet again in State of Goa v. Western Builders [(2006) 6 SCC 239], this Court opined :
2006 AIR SCW 3436, Para 20
"21. In National Aluminium Co. Ltd. v. Pressteel and Fabrications (P) Ltd. unilateral
appointment of the arbitrator under the Arbitration Act, 1940 was challenged. This Court
in the said appeal after hearing the parties appointed a sole arbitrator. Before the sole
arbitrator both the parties by consent agreed that the proceedings should be governed by
the provisions of the Arbitration and Conciliation Act, 1996. The arbitrator proceeded on
that basis and gave a final award. That final award was challenged. The question arose
whether the proceeding shall be governed by the 1940 Act or by the 1996 Act? And
which is the appropriate court. Thedispute prolonged for nearly 16 years. This Court
dismissed the appeal and held that in the present case proceedings should go on under the
provisions of the Act, 1996 though the dispute arose prior to coming into force of the Act,
1996, the appropriate forum for challenging the award under Section 34 was the Principal
Civil Court of original jurisdiction as contemplated under Section 2(e) of the Act, 1996."
2004 AIR SCW 7500
16. Ordinarily, although there may be cases to the contrary, the principle that the right of
appeal should not be taken away, should be applied. There might be strong reason to deny
the suitor a right of appeal.
@page-SC2032
17
. In Pandey and Co. Builders (P) Ltd. (supra), however, in the fact situation obtaining
therein, this Court held : 2006 AIR SCW 5871
"23. In this case, it is not necessary for us to go into the question as to whether subsection
(3) of Section 37 of the 1996 Act would debar an appeal from appellate order passed
under sub-section (2) of Section 37 thereof. The consequences of the statutory embargo
would ensue but then the question will have to be considered as and when occasion arises
therefor. Sub-section (2) of Section 37 of the 1996 Act prescribes for an appeal to a court.
We do not see any reason as to why having regard to its plain language, the definition of
"court" shall not be put into service. It may be true that the interpretation clause provides
for "unless the context otherwise requires". If application of the interpretation clause
contained in Section 2 of the 1996 Act shall lead to anomalous and absurd results, one
may not stick to the definition but we do not think that such a case has been made out."
18. Reliance has also been placed by Mr. Ajit Kumar Sinha, learned counsel appearing on
behalf of the appellant on an order of this Court dated 22-08-1997 in M/s. Bharat Coking
Coal Ltd. v. H.P. Biswas and Company [Civil Appeal No. 3504 of 1992] wherein it was
directed :
"In this civil appeal an award has been filed by the Arbitrator appointed by this Court in a
proceeding arising out of Section 8 of the Arbitration Act before the trial Court. However,
as the appeal arises out of the proceeding under the aforesaid section before the trial
court, the appointment of the arbitrator by this Court was in substitution of the earlier
order passed by the Trial Court. Hence the appropriate court in which the award is to be
filed will be the Court of First Sub-Judge, Dhanbad. Therefore, the Registry is directed to
send the original award as well as the entire records to the First Sub-Judge, Dhanbad,
Bihar. On receipt of copy of this Order, original award and the records by the trial court,
notice will be issued to the parties concerned by the trial court and within 30 days of
receipt of such notice objection, if any, under Section 30 of the Arbitration Act will be
filed by the concerned objector. Thereafter the trial court will proceed further in
accordance with law. The trial court shall decide the objections, if any, of the parties
concerned to the request for making the award a rule of the court. The trial court will
dispose of the proceedings at an early date preferably within a period of six months from
today.
19. A similar opinion was rendered yet recently by a Bench of this Court in Garhwal
Mandal Vikas Nigam Ltd. v. M/s. Krishna Travel Agency (IA 1 and 2 in SLP (C) No.
18344 of 2004 dated 24-01-2007] wherein it was held :
"Apart from these four cases, which have been brought to our notice, the position of law
is very clear that in case the argument of learned counsel is accepted, that would mean
that in every case where this court passes an order, be it on appeal, from the order passed
by the High Court under Section 11(6) of the Arbitration and Conciliation Act, 1996, this
court will become a Principal Civil Court of original jurisdiction. If the argument is
further taken to its logical conclusion that would mean that the parties will have to
approach this Court by making an application under Section 34 i.e. for setting aside the
award. The expression 'Court' used in Section 34 of the Act will also have to be
understood ignoring the definition of 'Court' in the Act. There is another facet of the
problem. The party will be deprived of the right to file an appeal under Section 37(i)(b) of
the Arbitration and Conciliation Act. This means that a valuable right of appeal will be
lost. Therefore, in the scheme of things, the submission of the learned counsel cannot be
accepted..."
[See also the comments in 'Arbitration, Conciliation and Mediation', Second edition by
Shri V.A. Mohta, page 82]
20
. It is also not a case where this Court has exercised its jurisdiction under sub-section (6)
of Section 11 of the Arbitration and Conciliation Act, 1996 as was done in McDermott
International Inc. v. Burn Standard Co. Ltd. and Others [(2005) 10 SCC 353]. A similar
view has been taken in ITC Ltd. v. George Joseph Fernandes and Another [(2005) 10
SCC 425]. 2004 AIR SCW 7104
21. As the question of jurisdiction of a Court is involved herein, we are of the opinion, by
consent of the parties also, jurisdiction cannot be assumed by this court.
22. We, therefore, for the foregoing reasons as also the binding precedents are of the
opinion that this Court has no jurisdiction to entertain these applications. The Registry,
therefore, is directed to send the
@page-SC2033
records to the Court of District Judge, Dhanbad who in turn is directed to transfer the
case to a court having appropriate jurisdiction. The court concerned is requested to
dispose of the objection filed by the appellant herein as expeditiously as possible and not
later than three months from the date of receipt of records.
23. The applications are disposed of with the aforementioned directions. No costs.
Order accordingly.
AIR 2008 SUPREME COURT 2033 "Anathula Sudhakar v. P. Buchi Reddy"
(From : AIR 1999 Andh. Pra. 188)
Coram : 2 R. V. RAVEENDRAN AND P. SATHASIVAM, JJ.
Anathula Sudhakar v. P. Buchi Reddy (Dead) by L. Rs. and Ors.
(A) Specific Relief Act (47 of 1963), S.38 - INJUNCTION - Prohibitory Injunction
relating to immovable property - Suit for - Scope of.
The position in regard to suits for prohibitory injunction relating to immovable property,
is summarised as under :
(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for
declaration and possession, with or without a consequential injunction, is the remedy.
Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he
has to sue for possession with a consequential injunction. Where there is merely an
interference with plaintiffs lawful possession or threat of dispossession, it is sufficient to
sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the
issue of title will not be directly and substantially in issue. The prayer for injunction will
be decided with reference to the finding on possession. But in cases where de jure
possession has to be established on the basis of title to the property, as in the case of
vacant sites, the issue of title may directly and substantially arise for consideration, as
without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are
necessary pleadings and appropriate issue regarding title (either specific, or implied).
Where the averments regarding title are absent in a plaint and where there is no issue
relating to title, the Court will not investigate or examine or render a finding on a
question of title, in a suit for injunction. Even where there are necessary pleadings and
issue, if the matter Involves complicated questions of fact and law relating to title, the
Court will relegate the parties to the remedy by way of comprehensive suit for declaration
of title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to
title on which parties lead evidence, if the matter involved is simple and straight forward,
the court may decide upon the issue regarding title, even in a suit for injunction. But such
cases, are the exception to the normal rule that question of title will not be decided in
suits for injunction. But persons having clear title and possession suing for injunction,
should not be driven to the costlier and more cumbersome remedy of a suit for
declaration, merely because some meddler vexatiously or wrongfully makes a claim or
tries to encroach upon his property. The Court should use its discretion carefully to
identify cases where it will enquire into title and cases where it will refer to plaintiff to a
more comprehensive declaratory suit, depending upon the facts of the case. (Para
17)
(B) Specific Relief Act (47 of 1963), S.34, S.38 - INJUNCTION - POSSESSION - Suit
for injunction simpliciter - Maintainability - Plaintiffs claim for possession purely based
on title through 'R' who claimed to be owner in pursuance of oral gift in year 1961
without property being mutated in her name - Whereas defendant claimed title from
original owner who was registered as owner in revenue records - Complicated question of
title involved - Could be examined only in a title suit, for declaration and consequential
reliefs, and not in a suit for injunction simpliciter. (Para 21)
(C) Civil P.C. (5 of 1908), S.100 - APPEAL - HIGH COURT - Second appeal - Powers of
Court - Pleas not made in plaint - Question of denying or traversing them by defendant
does not arise - Thus in absence of pleadings and issue, no question of law relating to
@page-SC2034
it could be formulated by High Court in second appeal. (Para 23)
(D) Civil P.C. (5 of 1908), S.100 - APPEAL - MIXED QUESTION OF FACT AND LAW
- EVIDENCE - Second appeal - Mixed question of law and fact - Firstly whether there
was oral gift and secondly whether alleged oral gift was valid - No averment in plaint in
respect of any gift, oral or otherwise or about its validity - Defendant had no opportunity
to deny oral gift in his written statement - There was no issue on said aspect - Thus said
question, which could not have been considered in suit, could not also have been
considered in second appeal - Further, no amount of evidence or arguments can be looked
into or considered in absence of pleadings and issues. (Paras 24, 25)
(E) Civil P.C. (5 of 1908), S.100 - APPEAL - INJUNCTION - HIGH COURT -
APPELLATE COURT - Second appeal - Arising from suit for injunction - High Court
while reversing decision of first appellate Court could not record findings relating to title
in absence of pleadings and issue regarding title. (Para 26)
(F) Civil P.C. (5 of 1908), S.100 - APPEAL - INJUNCTION - HIGH COURT - Second
appeal - Arising from suit for injunction - High Court re-examining questions of fact by
going into questions neither pleaded nor the subject matter of any issue - Formulating
questions of law which did not arise in second appeal - Therefore, interfering with well
reasoned judgment of first appellate Court which held that plaintiffs ought to have filed
suit for declaration - Held, was without jurisdiction.
AIR 1999 Andh Pra 188, Reversed. (Paras 27, 29)
2005 AIR SCW 3516 : AIR 2005 SC 4004 (Ref.) 15, 17
2000 AIR SCW 901 : AIR 2000 SC 1238 (Ref.) 16
1993 AIR SCW 3792 : AIR 1994 SC 152 (Ref.) 15, 16
AIR 1965 Mad 355 15, 16
D. Mahesh Babu, for Appellant; Mrs. K. Amareswari, Sr. Advocate, P. Venkat Reddy and
Guntur Prabhakar, for Respondents.
Judgement
R. V. RAVEENDRAN, J. :- This appeal by special leave is by the defendant in a suit for
permanent injunction. Puli Chandra Reddy and Puli Buchi Reddy were the plaintiffs in
the said suit. Both are now no more. The Legal Representatives of Puli Chandra Reddy
are respondents 2 to 5 and Legal Representatives of Puli Buchi Reddy are respondent 1
(i) to (iii). The suit related to two sites bearing No. 13/776/B and 13/776/C measuring 110
sq. yards and 187 sq. yards in Matwada, Warangal town, together referred to as the 'suit
property'.
2. Plaintiffs 1 and 2 claimed to be the respective owners in possession of the said two
sites having purchased them under two registered sale deeds dated 9-12-1968 (Exs.A1
and A2) from Rukminibai. The plaintiffs further claimed that the said two sites were
mutated in their names in the municipal records. They alleged that on 3-5-1978, when
they were digging trenches in order to commence construction, the defendant interfered
with the said work. The plaintiffs, therefore, filed suit OS No.279 of 1978 in the file of
Principal District Munsiff, Warangal, for a permanent injunction to restrain the defendant
from interfering with their possession.
3. Defendant resisted the suit. He claimed that suit property measuring 300 sq. yards in
Premises No. 13/776 was purchased by him from K.V. Damodar Rao (brother of
plaintiffs' vendor Rukminibai) under registered sale deed dated 7-11-1977 (Ex.B1); that
he was put in possession of the suit property by Damodar Rao; that the suit property had
been transferred to his name in the municipal records; that he applied for and obtained
sanction of a plan for construction of a building thereon; and that he had also obtained a
loan for such construction from the Central Government by mortgaging the said property.
According to him, when he commenced construction in the suit property, the plaintiffs
tried to interfere with his possession and filed a false suit claiming to be in possession.
4. The trial court framed the following issues - (i) whether the plaintiffs are in exclusive
possession of the suit sites (house plots)? (ii) whether the defendant has interfered with
the possession of the plaintiffs over the suit plots? (iii) whether the plaintiffs are entitled
to permanent injunction; and (iv) to what relief. The plaintiffs examined themselves as
PW1 and PW2. They examined their vendor Rukminibai as PW4. Puli Malla Reddy and
Vadula Ramachandram examined as PW3 and PW5. were the purchasers of two adjacent
sites from
@page-SC2035
Rukminibai. One of them (PW3) was the cousin of plaintiffs and was also the scribe and
attestor in respect of the two sale deeds in favour of plaintiffs. Plaintiffs exhibited the two
sale deeds dated 9-12-1968 in their favour as Ex.A1 and A2 and municipal demand
notices and tax receipts, all of the year 1978 onwards, as Ex.A3 to A11. A plan showing
the sites was marked as Ex.A12. Two letters said to have written by Damodar Rao were
marked as Ex.A13 and A14. The sale deed executed by Rukminibai in favour of PW3
was marked as Ex.X1 and sale agreement in favour of PW5 was marked as Ex.X2. The
defendant gave evidence as DW1 and examined his vendor Damodar Rao as DW2. He
exhibited the certified copy of the sale deed dated 7-11-1977 in his favour as Ex.B1, a
certified copy of mortgage deed executed by him in favour of Central Government as
Ex.B2, the licence and sanctioned plan for construction of a house in the suit plot as
Ex.B3 and B4 and the loan sanction proceedings as Ex.B5. He also exhibited a property
tax receipt dated 12-2-1978 issued to Damodar Rao (Ex.B6), water charge bill dated 20-
9-1978 for house No. 13/775 and 13/776 issued to Damodar Rao (Ex.B7), and property
tax receipts dated 19-2-1972, 14-10-1973, 28-3-1970 and 13-11-1968 in the name of
Damodar Rao (Ex. B8 to B11).
5. There was no dispute that the site purchased by the defendant from Damodar Rao
under deed dated 7-11-1977 is the same as the two sites purchased by plaintiffs from
Rukminibai under sale deeds dated 9-1-1968. There is also no dispute that the suit
property is a vacant plot and it was originally portion of the backyard of the property
bearing nos. 13/775 and 13/776, belonging to Damodar Rao, and that he was shown as
registered owner of the said properties No. 13/775 and 13/776 in the municipal records.
6. The plaintiffs led evidence to the effect that Damador Rao orally gifted the backyard
portion of No. 13/775 and 13/776, (separated from the main building by a dividing wall)
to his sister Rukminibai in the year 1961, by way of 'Pasupu Kumkumam' (a gift made to
a daughter or sister, conferring absolute title, out of love and affection, with a view to
provide for her); that Rukminibai sold three portions of the gifted site to PW3, plaintiff
No. 1, plaintiff No.2 in the year 1968 and they were in possession ever since 1968; and
that an agreement of sale was also entered in regard to another portion with PW5 as per
Ex.X2. On the other hand, defendant led evidence denying that the suit property was
given to Rukminibai by way of 'Pasupu Kumkumam'. His vendor Damodar Rao gave
evidence that he was the owner of the suit property and he sold it to the defendant under
deed dated 7-11-1977 and put him in possession thereof. While plaintiffs alleged that
plots were mutated in their names after their purchase, defendant alleged that the suit
property purchased by him was a part of plot No. 13/776 which stood in the name of
Damodar Rao in the municipal records. Neither party produced the order of mutation or
any certificate from the municipal authorities, certifying or showing mutation to their
names. They only produced tax receipts. The tax receipts produced by plaintiffs showed
that they had paid taxes from 1978 onwards, that is for a period subsequent to the sale by
Damodar Rao in favour of defendant. Plaintiffs did not produce any tax paid receipt to
show that the property stood in the name of Rukminibai. Nor did they produce any tax
receipt for the period 9-12-1968 (date of purchase by plaintiffs) to 7-11-1977 (date of
purchase by defendant). The defendant produced tax receipts to show that the suit
property stood in the name of his vendor Damodar Rao till the date of sale in his favour.
7. The trial court decreed the suit by judgment dated 31-12-1985. Relying on the two sale
deeds in favour of plaintiffs, the tax paid receipts and the oral evidence, it held that
plaintiffs were in possession of the suit property from the date of purchase and the
defendant had interfered with their possession. The defendant filed an appeal challenging
the judgment and decree of the trial court before the Addl. District Judge, Warangal. The
first appellate court held that the defendant was in possession of the suit property and the
plaintiffs had not made out, even prima facie, either title or possession over the suit
property. It was of the view that in the circumstances a mere suit for injunction was not
maintainable, and at least when the defendant filed his written statement denying the title
of plaintiffs and setting up a clear and specific case of title in himself, the plaintiffs ought
to have amended the plaint to convert the suit into one for declaration and injunction.
Consequently it allowed the appeal by judgment and decree
@page-SC2036
dated 9-12-1991 and dismissed the suit. Being aggrieved, the plaintiffs filed SA No.29 of
1992.
8. The High Court by its judgment dated 18-1-1999 allowed the second appeal and
restored the judgment and decree of the trial court. For this purpose, the High Court
examined the evidence in detail and recorded the following findings :
(i) There was an oral gift of the backyard portion (No. 13/776) by way of 'Pasupu
Kumkumam' by Damodar Rao in favour of his sister Rukminibai in the year 1961. As a
gift of an immovable property in favour of a daughter or sister by way of 'Pasupu
Kumkuman' could be oral, the absence of any registered document did not invalidate the
gift.
(ii) Damodar Rao negotiated with plaintiffs, for sale of the two sites, on behalf of his
sister Rukminibai, representing that his sister was the owner thereof and attested the sale
deeds executed by his sister Rukminibai in favour of plaintiffs as a witness and identified
her as the executant of the sale deeds before the Sub-Registrar. Those acts of Damodar
Rao supported the claim of Rukminibai that there was an oral gift. Alternatively, even if
there was no gift in favour of Rukminibai, and Damodar Rao was the owner, the
aforesaid acts of Damodar Rao showed that with his implied consent, Rukminibai
represented to be the ostensible owner of the suit property and transferred the same to
plaintiffs for consideration. This attracted the provision of section 41 of Transfer of
Property Act, 1882 and therefore the transfers in favour of plaintiffs was not voidable at
the instance of Damodar Rao or his successor in interest on the ground that Rukminibai
was not the owner of the suit property.
The High Court consequently held that plaintiffs had established their title in regard to
the two vacant sites purchased by them and drew an inference that possession was
presumed to be with them by applying the principle of possession follows title. The High
Court also held that it was not necessary to plaintiffs to sue for declaration of title, as the
question of title could be examined incidental to the question of possession.
9. The said judgment is challenged by the defendant, in this appeal by special leave, on
the following grounds :
(a) The suit for permanent injunction without seeking declaration of title was not
maintainable on the facts of the case. At all events, the High Court ought not to have
recorded a finding of fact on a seriously disputed and complicated issue of title, in a suit
for a mere injunction.
(b) The first appellate court held that plaintiffs had neither established their title nor their
possession and their remedy was to file a suit for declaration and consequential relief.
The High Court, in a second appeal, ought not to have reversed the said decision of the
first appellate court, by the process of examining and recording a finding on title, even
though there was no issue regarding title.
(c) An oral gift by a brother to a sister was not permissible. At all events, such an oral gift
even if permissible, can be made only at the time of a partition or at the time of marriage
of the sister, with a view to making a provision for her. The High Court erred in holding
that the there was a valid oral gift by Damodar Rao in favour of Rukminibai.
(d) There was no plea in the plaint about the ostensible ownership of Rukminibai or about
any acts of Damodar Rao which demonstrated the consent of Damodar Rao to such
ostensible ownership. Nor was there any plea about due and diligent enquiries by the
plaintiffs regarding title before purchase. Therefore the High Court erred in holding that
the sales in favour of plaintiffs were protected by section 41 of the Transfer of Property
Act, 1882.
(e) In the absence of pleadings and an issue regarding title, the defendant had no
opportunity to effectively lead evidence on the question of title.
(f) The High Court erred in equating plaintiffs' failure to produce title deeds of their
vendor to defendant's failure to produce the title deeds of his vendor. The High Court
overlooked the fact that there was no dispute that defendant's vendor Damodar Rao was
the earlier owner of the suit property and it was for the plaintiffs who had set up a case
that their vendor Rukminibai derived title from Damodar Rao under an oral gift, to prove
the said claim.
10. On the contentions urged, the following questions arise for our consideration in this
appeal :
(i) What is the scope of a suit for prohibitory
@page-SC2037
injunction relating to immovable property?
(ii) Whether on the facts, plaintiffs ought to have filed a suit for declaration of title and
injunction?
(iii) Whether the High Court, in a second appeal under section 100 CPC, examine the
factual question of title which was not the subject matter of any issue and based on a
finding thereon, reverse the decision of the first appellate court?
(iv) What is the appropriate decision?
Re : Question (i) :
11. The general principles as to when a mere suit for permanent injunction will lie, and
when it is necessary to file a suit for declaration and/or possession with injunction as a
consequential relief, are well settled. We may refer to them briefly.
11.1 Where a plaintiff is in lawful or peaceful possession of a property and such
possession is interfered or threatened by the defendant, a suit for an injunction simpliciter
will lie. A person has a right to protect his possession against any person who does not
prove a better title by seeking a prohibitory injunction. But a person in wrongful
possession is not entitled to an injunction against the rightful owner.
11.2 Where the title of the plaintiff is not disputed, but he is not in possession, his remedy
is to file a suit for possession and seek in addition, if necessary, an injunction. A person
out of possession, cannot seek the relief of injunction simpliciter, without claiming the
relief of possession.
11.3 Where the plaintiff is in possession, but his title to the property is in dispute, or
under a cloud, or where the defendant asserts title thereto and there is also a threat of
dispossession from defendant, the plaintiff will have to sue for declaration of title and the
consequential relief of injunction. Where the title of plaintiff is under a cloud or in
dispute and he is not in possession or not able to establish possession, necessarily the
plaintiff will have to file a suit for declaration, possession and injunction.
12. We may however clarify that a prayer for declaration will be necessary only if the
denial of title by the defendant or challenge to plaintiff's title raises a cloud on the title of
plaintiff to the property. A cloud is said to raise over a person's title, when some apparent
defect in his title to a property, or when some prima facie right of a third party over it, is
made out or shown. An action for declaration, is the remedy to remove the cloud on the
title to the property. On the other hand, where the plaintiff has clear title supported by
documents, if a trespasser without any claim to title or an interloper without any apparent
title, merely denies the plaintiffs title, it does not amount to raising a cloud over the title
of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a
suit for injunction may be sufficient. Where the plaintiff, believing that defendant is only
a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in
such a suit, the defendant discloses in his defence the details of the right or title claimed
by him, which raises a serious dispute or cloud over plaintiff's title, then there is a need
for the plaintiff, to amend the plaint and convert the suit into one for declaration.
Alternatively, he may withdraw the suit for bare injunction, with permission of the court
to file a comprehensive suit for declaration and injunction. He may file the suit for
declaration with consequential relief, even after the suit for injunction is dismissed, where
the suit raised only the issue of possession and not any issue of title.
13. In a suit for permanent injunction to restrain the defendant from interfering with
plaintiff's possession, the plaintiff will have to establish that as on the date of the suit he
was in lawful possession of the suit property and defendant tried to interfere or disturb
such lawful possession. Where the property is a building or building with appurtenant
land, there may not be much difficulty in establishing possession. The plaintiff may prove
physical or lawful possession, either of himself or by him through his family members or
agents or lessees/licensees. Even in respect of a land without structures, as for example an
agricultural land, possession may be established with reference to the actual use and
cultivation. The question of title is not in issue in such a suit, though it may arise
incidentally or collaterally.
14. But what if the property is a vacant site, which is not physically possessed, used or
enjoyed? In such cases the principle is that possession follows title. If two persons claim
to be in possession of a vacant site, one who is able to establish title thereto will
@page-SC2038
be considered to be in possession, as against the person who is not able to establish title.
This means that even though a suit relating to a vacant site is for a mere injunction and
the issue is one of possession, it will be necessary to examine and determine the title as a
prelude for deciding the de jure possession. In such a situation, where the title is clear and
simple, the court may venture a decision on the issue of title, so as to decide the question
of de jure possession even though the suit is for a mere injunction. But where the issue of
title involves complicated or complex questions of fact and law, or where court feels that
parties had not proceeded on the basis that title was at issue, the court should not decide
the issue of title in a suit for injunction. The proper course is to relegate the plaintiff to
the remedy of a full-fledged suit for declaration and consequential reliefs.
15
. There is some confusion as to in what circumstances the question of title will be directly
and substantially in issue, and in what circumstances the question of title will be
collaterally and incidentally in issue, in a suit for injunction simpliciter. In Vanagiri Sri
Selliamman Ayyanar Uthirasomas-undareswarar Temple vs. Rajanga Asari, AIR 1965
Mad. 355, the Madras High Court considered an appeal arising from a suit for possession
and injunction. The defendant contended that the plaintiff had filed an earlier suit for
injunction which was dismissed, and therefore the plaintiff was precluded from agitating
the issue of title in the subsequent suit, being barred by the principle of res judicata. It
was held that the earlier suit was only for an injunction (to protect the standing crop on
the land) and the averments in the plaint did not give rise to any question necessitating
denial of plaintiff's title by the defendant; and as the earlier suit was concerned only with
a possessory right and not title, the subsequent suit was not barred. There are several
decisions taking a similar view that in a suit for injunction, the question of title does not
arise or would arise only incidentally or collaterally, and therefore a subsequent suit for
declaration of title would not be barred. On the other hand, in Sulochana Amma vs.
Narayanan Nair 1994 (2) SCC 14, this Court observed that a finding asto title given in an
earlier injunction suit, can operate as res judicata in a subsequent suit for declaration of
title. This was on the premises that in some suits for injunction where a finding on
possession solely depended upon a finding on the issue of title, it could be said that the
issue of title directly and substantially arose for consideration; and when the same issue
regarding title is put in issue, in a subsequent title suit between the parties, the decision in
the earlier suit for injunction may operate as res judicata. This Court observed : 1993
AIR SCW 3792
Para 8 of AIR SCW
"Shri Sukumaran further contended that the remedy of injunction is an equitable relief
and in equity, the doctrine of res judicata cannot be extended to a decree of a court of
limited pecuniary jurisdiction. We find no force in the contention. It is settled law that in
a suit for injunction when title is in issue for the purpose of granting injunction, the issue
directly and substantially arises in that suit between the parties. When the same issue is
put in issue in a later suit based on title between the same parties or their privies in a
subsequent suit the decree in the injunction suit equally operates as res judicata."
This was reiterated in Annaimuthu Thevar v. Alagammal, 2005 (6) SCC 202. 2005
AIR SCW 3516
16
. This Court in Sajjadanashin Sayed Md. vs. Musa Dadabhai Ummer, 2000 (3) SCC 350,
noticed the apparent conflict in the views expressed in Vanagiri and Sulochana Amma
and clarified that the two decisions did not express different views, but dealt with two
different situations, as explained in Corpus Juris Secundum (Vol.50, para 735, p.229) :
2000 AIR SCW 901
"Where title to property is the basis of the right of possession, a decision on the question
of possession is res judicata on the question of title to the extent that adjudication of title
was essential to the judgment; but where the question of the right to possession was the
only issue actually or necessarily involved, the judgment is not conclusive on the
question of ownership or title."
In Vanagiri, the finding on possession did not rest on a finding on title and there was no
issue regarding title. The case related to an agricultural land and raising of crops and it
was obviously possible to establish by evidence who was actually using and cultivating
the land and it was not necessary to examine the title to find out who had deemed
possession. If a finding on title was not necessary AIR 1965 Mad 355
1993 AIR SCW 3792
@page-SC2039
for deciding the question of possession and grant of injunction, or where there was no
issue regarding title, any decision on title given incidentally and collaterally will not,
operate as res judicata. On the other hand, the observation in Sulochana Amma that the
finding on an issue relating to title in an earlier suit for injunction may operate as res
judicata, was with reference to a situation where the question of title was directly and
substantially in issue in a suit for injunction, that is, where a finding as to title was
necessary for grant of an injunction and a specific issue in regard to title had been raised.
It is needless to point out that a second suit would be barred, only when the facts relating
to title are pleaded, when an issue is raised in regard to title, and parties lead evidence on
the issue of title and the court, instead of relegating the parties to an action for declaration
of title, decides upon the issue of title and that decision attains finality. This happens only
in rare cases. Be that as it may. We are concerned in this case, not with a question relating
to res judicata, but a question whether a finding regarding title could be recorded in a suit
for injunction simpliciter, in the absence of pleadings and issue relating to title.
17. To summarize, the position in regard to suits for prohibitory injunction relating to
immovable property, is as under :
(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for
declaration and possession, with or without a consequential injunction, is the remedy.
Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he
has to sue for possession with a consequential injunction. Where there is merely an
interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to
sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the
issue of title will not be directly and substantially in issue. The prayer for injunction will
be decided with reference to the finding on possession. But in cases where de jure
possession has to be established on the basis of title to the property, as in the case of
vacant sites, the issue of title may directly and substantially arise for consideration, as
without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are
necessary pleadings and appropriate issue regarding title [either specific, or implied as
noticed in Annaimuthu Thevar (supra)]. Where the averments regarding title are absent in
a plaint and where there is no issue relating to title, the court will not investigate or
examine or render a finding on a question of title, in a suit for injunction. Even where
there are necessary pleadings and issue, if the matter involves complicated questions of
fact and law relating to title, the court willrelegate the parties to the remedy by way of
comprehensive suit for declarationof title, instead of deciding the issue in a suit for mere
injunction. 2005 AIR SCW 3516
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to
title on which parties lead evidence, if the matter involved is simple and straightforward,
the court may decide upon the issue regarding title, even in a suit for injunction. But such
cases, are the exception to the normal rule that question of title will not be decided in
suits for injunction. But persons having clear title and possession suing for injunction,
should not be driven to the costlier and more cumbersome remedy of a suit for
declaration, merely because some meddler vexatiously or wrongfully makes a claim or
tries to encroach upon his property. The court should use its discretion carefully to
identify cases where it will enquire into title and cases where it will refer to plaintiff to a
more comprehensive declaratory suit, depending upon the facts of the case.
Re : Question (ii) :
18. Rukminibai did not have any title deed to the suit property. The case of plaintiffs
during arguments was that the gift made in the year 1961, being by way of 'Pasupu
Kumkumam' in favour of a sister by a brother, could be oral and did not require a
registered instrument. But the property allegedly gifted to Rukminibai was not mutated in
the name of Rukminibai in the municipal records, but continued in the name of Damodar
Rao even after 1961. Damodar Rao was a resident of Warangal and staying in the house
adjoining the suit property. Rukminibai was a resident of Hyderabad. Therefore, as on the
date of sales in favour of the plaintiffs 9-12-1968,
@page-SC2040
Rukminibai had neither any title deed nor actual possession. Nor was the property
mutated in her name in the municipal records. The tax paid receipts produced by the
plaintiffs related to a period subsequent to the execution of the sale deeds by Rukminibai
in their favour and subsequent to the sale by Damodar Rao in favour of defendant. On the
other hand, the suit property was sold in favour of the defendant by Damodar Rao who
was shown as registered owner in the municipal records and who even according to the
plaintiffs was the original owner of the property.
19. The first appellate court found that the evidence of plaintiffs and their witnesses as to
the title of plaintiffs' vendor Rukminibai was sketchy and inconsistent. It referred to three
versions as to how Rukminibai got the property. The first version (as per PW1) was that
the suit property belonged to Rukminibai's father and he had given it to his daughter
Rukminibai by way of 'Pasupu Kumkumam'. The second version (as per PW2) was that
after the death of Rukminibai's father, there was an oral partition between K.V. Damodar
Rao and Rukminibai and at that partition, the suit property was allotted to Rukminibai.
But both PW1 and PW2 admitted that they did not make any enquiry with Rukminibai
about her title. The third version (as per PW4 Rukminibai) was that Damodar Rao made
an oral gift of the plot in her favour by way of 'Pasupu Kumkumam' in the year 1961. She
admitted that there was no special occasion for gifting the plot to her in the year 1961, as
she was married long prior to 1961.
20. The suit sites were vacant plots. Both sides admitted that Damodar Rao was the
original owner and that entire property stood in his name. The defendant claims title
through Damodar Rao. The plaintiffs claim title through Rukminibai who neither has any
deed of title nor any document in support of title or possession. Admittedly, there was no
mutation in her name. This means that plaintiffs claim title through someone who
claimed to be owner in pursuance of an oral gift in the year 1961 without the property
being mutated in her name, whereas the defendant claims title from the person who was
admittedly the original owner who was registered as owner in the revenue records.
Necessarily, therefore, prima facie it has to be held that defendant had made out
possession following title.
21. The plaintiffs and their witnesses gave evidence to the effect that Damodar Rao
represented that his sister Rukminibai was the owner of the plot and negotiated for sale of
the several portions thereof in favour of plaintiffs and PW3, and that Damodar Rao had
attested the sale deeds in their favour and identified his sister as the vendor executant
before the Sub-Registrar, at the time of registration of the sale deeds. It is no doubt true
that if that was the position, it is possible for them to contend that having regard to
section 41 of Transfer of Property Act, when the ostensible owner Rukminibai sold the
property with the implied consent of Damodar Rao, the defendant as a transferee from
Damodar Rao could not contend that the sales were not valid. They also alleged that
defendant was a close relative of Damodar Rao and the sale in favour of defendant was
only nominal, intended to defeat their title. But Damodar Rao in his evidence denied
having made the oral gift or having attested the sale deeds in favour of plaintiffs. He also
denied having identified his sister at the time of registration of the sale deeds. Whether
Rukminibai's evidence and other plaintiffs' witnesses should be believed or whether
evidence of Damodar Rao should be believed on the question of title, can be examined
only when there are necessary pleadings and an issue regarding title. Further, where title
of plaintiffs is disputed and claim for possession is purely based on title, and the plaintiffs
have to rely on various principles of law relating to ostensible ownership and section 41
of TP Act, validity of a oral gift by way of 'pasupu kumkum' under Hindu Law, estoppel
and acquiescence, to put forth a case of title, such complicated questions could properly
be examined only in a title suit, that is a suit for declaration and consequential reliefs, and
not in a suit for an injunction simpliciter.
Re : Questions (iii) and (iv)
22. The High Court formulated the following as substantial questions of law :
"(i) Whether the plaintiffs' suit for permanent injunction without seeking declaration of
title is maintainable under law?
(ii) Whether the acts and deeds of Damodar Rao (DW-2) made the plaintiffs to believe
that Rukminibai is the ostensible owner of the suit property and thus made them to
purchase the suit property for valid consideration and, therefore, the provisions
@page-SC2041
under Section 41 of the Transfer of Property Act are attracted and as such DW-2 could
not pass on a better title to the defendant under Ex.B-1?
(iii) Whether the alleged oral gift of the suit property in favour of Rukminibai by DW2
towards Pasupu Kumkum is legal, valid and binding on DW2 though effected in
contravention of the provisions under Section 123 of the Transfer of Property Act?"
Having regard to the pleadings and issues, only the first question formulated by the High
Court can be said to arise for its consideration in the second appeal. The second and third
questions did not arise at all, as we will presently demonstrate.
23. The second question of law formulated by the High Court is a mixed question of fact
and law, that is whether the factual ingredients necessary to claim the benefit of section
41 of the Transfer of Property Act were made out by plaintiffs. To attract the benefit of
section 41 of TP Act, the plaintiffs had to specifically plead the averments necessary to
make out a case under section 41 of the T.P. Act and claim the benefit or protection under
that section. The averments to be pleaded were :
(a) that Rukminibai was the ostensible owner of the property with the express or implied
consent of Damodar Rao;
(b) that the plaintiffs after taking reasonable care to ascertain that the transferor or
Rukminibai had the power to make the transfer, had acted in good faith in purchasing the
sites for valid consideration; and
(c) that therefore, the transfer in favour of plaintiffs by Rukminibai was not voidable at
the instance of Damodar Rao or any one claiming through him.
These pleas were not made in the plaint. When these were not pleaded, the question of
defendant denying or traversing them did not arise. In the absence of any pleadings and
issue, it is ununderstandable how a question of law relating to section 41 of TP Act could
be formulated by the High Court.
24. The third question of law formulated by the High Court, is also a mixed question of
fact and law firstly whether there was an oral gift and secondly whether the alleged oral
gift was valid. Here again, there was no averment in the plaint in respect of any gift, oral
or otherwise, by Damodar Rao in favour of Rukminibai or about its validity.
Consequently there was no opportunity to the defendant to deny the oral gift in his
written statement. There was no issue on this aspect also. Therefore, this question, which
could not have been considered in the suit, could not also have been considered in the
second appeal.
25. The High Court, in the absence of pleadings and issues, formulated in a second appeal
arising from a suit for bare injunction, questions of law unrelated to the pleadings and
issues, presumably because some evidence was led and some arguments were advanced
on those aspects. The only averment in the plaint that plaintiffs were the owners of the
suit property having purchased the same under sale deeds dated 9-12-1968, did not enable
the court, much less a High Court in second appeal, to hold a roving enquiry into an oral
gift and its validity or validation of ostensible title under section 41 of TP Act. No amount
of evidence or arguments can be looked into or considered in the absence of pleadings
and issues, is a proposition that is too well settled.
26. The High Court while reversing the decision of the first appellate court, examined
various aspects relating to title and recorded findings relating to title. It held that gifting a
property to a daughter or sister by way of 'Pasupu Kumkumam", could be done orally and
did not require a registered instrument. Even though there was no independent evidence
of oral gift except the assertion to Rukminibai (which was denied by Damodar Rao), the
High Court, held that there was an oral gift in her favour. It also accepted the evidence of
PW3 and PW5 and plaintiffs, that Damodar Rao negotiated for the sale of the plots
representing that they belonged to his sister Rukminibai and that he attested the sale
deeds as a witness and identified the Rukminibai as the executant before the Sub-
Registrar and therefore, section 41 of TP Act came to the aid of plaintiffs and Damodar
Rao was estopped from denying the title of his sister. The High Court in a second appeal
arising from a suit for an injunction, could not have recorded such findings, in the
absence of pleadings and issue regarding title.
27. We are therefore of the view that the High Court exceeded its jurisdiction under
section 100 CPC, firstly in re-examining questions of fact, secondly by going into the
questions which were not pleaded and which were not the subject matter of any issue,
thirdly by formulating questions of law
@page-SC2042
which did not arise in the second appeal, and lastly, by interfering with the well reasoned
judgment of the first appellate court which held that the plaintiffs ought to have filed a
suit for declaration.
28. We are conscious of the fact that the suit was filed in the year 1978 and driving the
plaintiffs to a fresh round of litigation after three decades would cause hardship to them.
But the scope of civil cases are circumscribed by the limitations placed by the rules of
pleadings, nature of relief claimed and the court fee paid. The predicament of plaintiffs,
was brought upon themselves, by failing to convert the suit to one for declaration even
when the written statement was filed, and by not seeking amendment of issues to include
an issue on the question of title. In the absence of a prayer of declaration of title and an
issue regarding title, let alone the pleadings required for a declaration of title, the parties
cannot be said to have an opportunity to have a full-fledged adjudication regarding title.
29. We, therefore, allow this appeal, set aside the judgment of the High Court and dismiss
the suit. Nothing stated herein or by the courts below shall be construed as expression of
any opinion regarding title, in any future suit for declaration and consequential reliefs that
may be filed by the appellants, in accordance with law. Parties to bear their respective
costs.
Appeal allowed.
AIR 2008 SUPREME COURT 2042 "Suresh v. State of Haryana"
Criminal A. Nos.1295 with 1296 of 2006, D/- 7 -4 -2008.
Suresh @ Hakla v. State of Haryana.
(A) Penal Code (45 of 1860), S.300, S.149 - MURDER - EVIDENCE - Murder - Proof -
Not by inference - Driver charged of murder along with other inmates of car - His name
not mentioned in FIR and in original statement - Evidence about his participation in
incident contradictory - No test identification parade conducted though driver was
unknown to witnesses - Conviction on inference that because he is driver in pre-planned
murder case his role is crucial - Impermissible. (Paras 8, 9)
(B) Penal Code (45 of 1860), S.300, S.149 - MURDER - UNLAWFUL ASSEMBLY -
WITNESS - Murder - Accused alleged to have caused death of deceased by gun shots -
Accused named in FIR - Role played by each accused clearly described by eye witnesses
- One of eye witnesses injured in incident - Ocular evidence supported by medical
evidence - Accused liable to be convicted. (Para 7)
Nagindra Rai, Sr. Advocate, Rishi Malhotra, Prem Malhotra, for Appellant; Mrs. Naresh
Bakshi, T.V. George, for Respondent.
* Cri. A. Nos. 118-119 of 2002, D/- 5-10-2004 (P and H).
Judgement
1. Dr. ARIJIT PASAYAT, J. :- These Appeals have a common nexus and are disposed of
by a common judgment. Two appeals were filed before the Punjab and Haryana High
Court i.e. Criminal Appeal No. 118 -DB of 2002 and Criminal Appeal No. 119 -DB of
2002. One Appeal was filed by Suresh alias Hakla (appellant in Criminal Appeal No.
1295 of 2006) and another appeal was filed by Balwant and Ladh Ram (appellants in
Criminal Appeal No. 1296 of 2006). The High Court dismissed the Criminal Appeal No.
670- DB of 2001 filed by Balwant and Ladh Ram. The High Court dealt with the factual
and the legal position in detail in Criminal Appeal No. 670-DB of 2001 and dismissed the
same. Another Criminal Appeal i.e. No. 560 DB of 2002 was filed by accused Shamsher
Singh. In the connected two appeals the decision was followed.
At about 9.30A.M. on 15-7-1996 Ramesh (PW-14) accompanied by Mahender Sarpanch
(hereinafter referred to as the 'deceased'), Duli Chand (PW-15), Dev Raj and Richh Pal
were going in a Gypsy being driven by the deceased. As they had covered a distance of
2½ kms. and reached near the Chitang canal situated in between villages Salemgarh and
Mingnikhera, a Maruti Car having No. DL-4C/8434 came from the opposite direction. As
the car stopped close to the jeep, accused Shamsher Singh came out and fired a shot from
a country made pistol which hit the wind screen of the Gypsy, due to which deceased
Mahender lost control with the result that the Gypsy skidded and stopped on the road
side. Thereupon,
@page-SC2043
Shamsher Singh, Ladh Ram, Balwant, Pirthi Punic and 3/4 other persons came out of the
car and pulled Mahender out from the Gypsy. Shamsher Singh fired another shot hitting
Mahender on the left side of the abdomen, whereas Ladh Ram fired a shot from his gun
hitting Mahender below his armpit on the left side and Balwant fired a shot from the
country made pistol hitting Mahender on his right flank, while Siri Chand fired a shot
from his gun hitting him on his anus. Siri Chand also shouted that Mahender should not
be spared because he had committed the murder of his son Bhoop Singh. Pirthi Punic
kept standing close-by pointing his gun at the witnesses and threatened that he would
shoot them if they intervened. The accused thereafter went through the pockets of
Mahender and took out the license for his revolver, a driving licence, an identity card and
a cheque for Rs. 50,000/-and some cash and also picked up the licensed gun of Ramesh,
which was lying in the Gypsy, and then drove away to village Kabrel. In the meantime, a
Tata-407 truck came from the side of village Kabrel in which Subhash son of Tara Chand
and Shishpal son of Dariya Singh were travelling and Mahender was brought to the Civil
Hospital, Hisar, where he was declared dead. In the firing, Duli Chand, father of
Mahender (PW-15) also suffered pellet injuries on his face, forehead and right arm. A
wireless message was sent to the police station, on which SI Dharam Chand (P-17)
reached the Civil Hospital and recorded the statement of Ramesh (PW-14) at about 1.00
PM and on its basis a formal FIR Ex-FN was registered at police station Sadar, Hisar at
1.40 PM, within the special report being delivered to the Ilaqa Magistrate locally at 3.55
PM. The investigating Officer also took into possession the medico legal report of Duli
Chand and after the post-mortem examination, some pellets recovered from the dead
body. Siri Chand, Prithvi and Shamsher Singh were arrested on 29-07-1996 and on
Shamsher's interrogation, a .12 bore pistol and five empty and two live cartridges were
recovered. Likewise, on the disclosure statement made by accused Prithvi, a .16 bore
licensed gun belonging to Siri Chand and two empty and two live cartridges were
recovered. Shamsher Singh also made a disclosure statement and on its basis, a .12 bore
pistol, which had allegedly been used in another murder committed by him on the same
day, was recovered. A case under Section 25 of the Arms Act was registered against
accused Shamsher Singh as well. Accused-Makhan Singh who though not named in the
FIR but found to be involved in the incident, was arrested on 7-4-1998. On the
completion of the investigation, the accused were charged for offences punishable under
Sections 148, 302 read with Sections 149, 307 read with Sections 149 and 395 of the
Indian Penal Code, 1860 (in short 'IPC') and as they pleaded not guilty, were brought to
trial.
The prosecution in support of its case placed reliance, inter alia on the evidence of Dr.
Arun (PW-1) reported that no fracture had been seen in the X-ray conducted by him, Dr.
B.L. Bagri (PW-2) of the General Hospital, Hisar, who had examined Duli Chand at
12.25 PM on 15-7-1996 and had found three injuries, PW-3 Dr. J.S. Bhatia, the Senior
Medical Officer, Government Hospital, Hisar, who had conducted the postmortem
examination and had found five gun shot injuries on the dead body, the two eye witnesses
Ramesh (PW-14) and Duli Chand (PW-15), the last named being injured, SI Dharam
Chand (PW-17), the Investigating Officer, and Inspector Avtar Singh (PW-21). The
statements of the accused were thereafter recorded under Section 313 Cr.P.C. and they
denied the allegations levelled against them and claimed to be innocent. They also
produced two witnesses in defence, Charanjit Singh DSP (DW-1), who stated Balwant
had not been present at the time of the incident and the first named was entirely innocent,
whereas Balwant was a part of the conspiracy which had led to the murder; and Sumer
Singh (DW-2), who produced the records to depose that Shamsher accused had been held
guilty vide judgment dated 9-4-2001 in another murder committed on the same day.
The trial Court held that on the facts as brought on the record there was no delay in the
lodging of the FIR; that there was no need to subject the accused to an identification
parade as they had already been identified at the time of the registration of the FIR; that
the medical evidence supported the ocular version; that the minor discrepancies in the
evidence of the eye witnesses could be ignored and the statements accepted as being tries
and that the metallic pieces, Exh.P14 and P15 recovered from the dead body had been
matched with the weapon recovered from Shamsher accused. The
@page-SC2044
Court then went to the involvement of each of the accused and opined that Balwant and
Ladh Ram had been named in the FIR, whereas Prithvi and Suresh though not named
therein had figured in the supplementary statements of the witnesses and their
involvement and also clear from the statement of Duli Chand, the injured witness, and
that Suresh aforesaid was also the driver of the Maruti Car in question. The Court also
held that Shamsher Singh was the main accused in the case. The Trial Court accordingly
convicted and sentenced the accused as under :
All the accused under Section 302 of the Indian Penal Code To undergo rigorous
imprisonment for life and to pay a fine of Rs. 5,000/- and in default of payment thereof
to further undergo rigorous imprisonment months.
All the accused under Section 307 read with Section 149 of the Indian Penal Code
All the accused under Section 148 of the Indian Penal Code To undergo rigorous
imprisonment for five years and to pay a fine of Rs. 1000/- and in default of payment
thereof to further undergo rigorous imprisonment for one month.
To undergo rigorous imprisonment for one year.
All the sentences were, however, ordered to run concurrently.

All appeals were dismissed by the High Court.
3. It is to be noted that the trial court primarily relied on the evidence of PWs. 14 and 15
i.e. Ramesh and Duli Chand. Duli Chand was the father of the deceased who also
suffered injuries on the face, forehead and right arm.
4. In support of the appeal, learned counsel for the appellants submitted that the evidence
of PWs. 14 and 15 does not inspire confidence. The defence version that occurrence had
not taken place around 9.30 A.M. but at 6.30 A.M. prima facie gets established because
of the presence of partial undigested food and faecal materials. The appellant Balwant
and Ladh Ram belong to different villages and could not have been parties to the alleged
animosity to have any motive. The evidence of PW 15 should not have been relied upon
as he cannot see beyond ten feet. The evidence of Doctor PW 2 established five injuries.
There were five injuries noticed; none of which has been specifically attributed to
Balwant and Ladh Ram.
5. In support of the appeal filed by accused Suresh it is submitted that he was not named
in the FIR and/or in the original statement. Subsequently in the so called supplementary
statement, his name surfaced. The role ascribed to him is differently described. The High
Court noticed that he was the driver of the car.
6. There is also major variance as to whether Suresh participated in pulling out the
deceased, while one witness says he did and other says that he was driving car.
7. Learned counsel for the respondent-State on the other hand supported the judgment
and submitted that because of concurrent findings recorded, there was no scope for
interference. So far as the appeal filed by Balwant Singh and Ladh Ram is concerned they
were named in the FIR, the role played by each one of them has been clearly described by
PWs. 14 and 15. Their presence at the spot cannot be doubted. PW 15 is an injured
witness. As a matter of fact there has been recovery of the pellet. The stand that the
evidence of Doctor (PW 2) shows fire arm injuries is not possible is also not correct. He
does not say so. On the contrary, he said that the possibility of injuries by fire arm cannot
be ruled out. In that view of the matter, the appeal so far as Balwant Singh and Ladh Ram
is concerned is without merit, deserves dismissal. Criminal Appeal No. 1296 of 2006 is
dismissed.
8. So far as the appeal filed by the accused Suresh is concerned as noted above he was
not named in the FIR and in the original statement. His role in the incident has been
described in different manners by PWs 14 and 15. It is to be noted that Suresh was not
known to the witnesses. In fact it has been categorically noted by the High Court that
PW-15 has accepted that he did not know him earlier. There was no Test Identification
Parade.
9. The High Court has drawn an inference
@page-SC2045
that because he was a driver in preplanned murder, the role of such driver is crucial. Such
an inferential conclusion is without any evidence to show participation of accused
Suresh. While PW 15 stated that Suresh was threatening the witnesses who were present,
PW 14 gave a different version. He did not speak a word about the participation of
accused Suresh. Looked at from any angle the conviction of accused Suresh cannot be
maintained and deserves to be set aside.
10. The appeal bearing No. 1295 of 2006 is allowed. The accused be set at liberty
forthwith unless his custody is required in any other case.
Order accordingly.
AIR 2008 SUPREME COURT 2045 "State of Arunachal Pradesh v. Nezone Law House,
Assam"
(From : Gauhati)*
State of Arunachal Pradesh v. Nezone Law House, Assam.
(A) Constitution of India, Art.226, Art.14 - Evidence Act (1 of 1872), S.115 - WRITS -
EQUALITY - PROMISSORY ESTOPPEL - DOCTRINES - Promissory
estoppel/Legitimate expectation - Alleged assurance by State Govt. for purchase of 500
sets of compilation of Local Laws from publisher - Refusal to place any order - Petition
seeking direction to maintain and keep promise - Claim based on departmental note to
which concurrence of various departments/ministries not obtained - Thus some oral
expression of desire by the then Law Minister, would not be relevant - There was
interpolation of document and also dispute as to whether intended purchase was of
volumes or sets - Held, in facts, doctrine of promissory estoppel and legitimate
expectation not attracted.
W. A. No.53 of 1999, D/-02-04-2001 (Gau.), Reversed. (Paras 5, 6, 16)
(B) Constitution of India, Art.14 - EQUALITY - Legitimate expectation - Legitimacy of
expectation can be inferred only if it is founded on sanction of law.
The decision-maker has the choice in the balancing of the pros and cons relevant to the
change in policy. It is, therefore, clear that the choice of policy is for the decision maker
and not the Court. The legitimate substantive expectation merely permits the Court to
find out if the change of policy which is the cause for defeating the legitimate expectation
is irrational or perverse or one which no reasonable person could have made. A claim
based on merely legitimate expectation without anything more cannot ipso facto give a
right. Its uniqueness lies in the fact that it covers the entire span of time, present, past and
future. How significant is the statement that today is tomorrows yesterday. The present is
as we experience it, the past is a present memory and future is a present expectation. For
legal purposes, expectation is not same as anticipation. Legitimacy of an expectation can
be inferred only if it is founded on the sanction of law.
(C) Evidence Act (1 of 1872), S.115 - PROMISSORY ESTOPPEL - DOCTRINES -
Promissory estoppel - Invoking of doctrine - Clear, sound and positive foundation must
be laid by party in petition itself.
In order to invoke the doctrine of promissory estoppel clear, sound and positive
foundation must be laid in the petition itself by the party invoking the doctrine and bald
expression without any supporting material to the effect that the doctrine is attracted
because the party invoking the doctrine has altered its position relying on the assurance of
the Govt. would not be sufficient to press into aid the doctrine. The Courts are bound to
consider all aspects including the results sought to be achieved and the public good at
large, because while considering the applicability of the doctrine, the Courts have to do
equity and the fundamental principles of equity must forever be present in the mind of the
Court. (Para 17)
2001 AIR SCW 4958 : AIR 2002 SC 322 (Ref.) 8
1999 AIR SCW 1394 : AIR 1999 SC 1801 (Foll.) 13
7
1993 AIR SCW 494 : AIR 1994 SC 980 (Ref.) 12
@page-SC2046
AIR 1991 SC 1153 (Ref.) 10
1990 (64) Australian LJR 32714
AIR 1986 SC 806 : 1986 Tax LR 2002 (Ref.) 7
AIR 1979 SC 621 : 1979 All LJ 368 (Ref.) 7
AIR 1977 SC 1496 (Ref.) 7
AIR 1972 SC 1311 : 1973 Tax LR 398 (Ref.) 7
AIR 1971 SC 1021 (Ref.) 7
AIR 1968 SC 718 (Ref.) 7, 8
AIR 1964 SC 1823 (Ref.) 16
(1955) 2 All ER 657 7
(1951) 2 KB 215 7
(1947) 1 KB 130 7, 8
(1939) 59 CLR 641 (Aust) 8
Anil Shrivastav, for Appellant; Abhijit Sengupta, for Respondent.
* W. A. No. 53 of 1999, D/- 2-4-2001 (Gauh)
Judgement
Dr. ARIJIT PASAYAT, J. :- Challenge in this appeal is to the order of a Division Bench of
the Guwahati High Court dismissing the writ appeal filed by the appellant.
2. The factual position is very interesting and heeds to be noted in some detail.
A Writ Petition was filed by the respondent claiming that the State Government had
promised to purchase 500 sets of 'North Eastern Region Local Acts and Rules' from it.
But contrary to its promise it had refused to place any order. The prayer in the writ
petition was for a direction to the present appellant and its functionaries to maintain and
keep the promise made by them to the respondent in respect of printing and supply of 500
sets as noted above. It was stated that the then Law Minister had assured the respondent
through its proprietor to purchase the books and had given green signal for publishing
and printing of the compilation of local laws at the relevant period and had promised that
if they publish those the government of Arunachal Pradesh will purchase at least 500 sets
of local Acts and Rules. It was submitted that in view of the direction given by this Court
in All India Judges' Association and Ors. v. Union of India and Ors. [AIR 1992 SC 165]
and in All India Judges' Association and Ors. v. Union of India and Ors. [AIR 1993 SC
2493] such promise was made. It according to the writ petitioner is a clear case where
principles of promissory estoppel and legitimate expectation applied. The stand was
resisted by the present appellant contending that there has been manipulation of the notes.
The alleged note does not indicate that there was any promise or order for
printing/publishing the book. It was merely a departmental note sent to the Planning/
Finance/Law Department from the Chief Minister for examination. Further the Minister
had specifically stated (in the note) that 400 copies of one book containing all the North
Eastern Regional Local Acts and Rules of Rs. 400/- each (total value of Rs. 1,60,000/-)
could be purchased as the publisher on his own told that he has published such Acts and
Rules. This according to the present appellant established that the then Law Minister had
never ordered to undertake publication and supply thereafter of 500 sets of such books.
The mind of the then law Minister was clear as to the procedure to be adopted. It was
further pointed out that on the body of the respondent's letter dated 27th April, 1997 the
words/Figures '500 volumes' (in the third line of the Minister's note) appears to be
interpolated by the words '500 sets' by obliterating the word 'volume' by using a white
erasing ink and writing over their 'sets' by hand. It was pointed out that the cost
involvement would be about a crore of rupees as the price of the books as claimed was
nearly 40 lakhs and with escalation of price it was likely to reach Rupees one crore. It
was further submitted that the Writ Petition deserves to be dismissed. The High Court
observed that though there appear to be overwriting, but the normal practice is that books
are purchased in sets and therefore, even if there was any interpolation the same was
intentionally done to correct the Error. The Writ Petition was, therefore, allowed
purportedly holding that the principles of promissory estoppel applied. As noted above,
the writ appeal was filed by the appellant which was dismissed by the impugned
judgment. 1991 AIR SCW 2869
1993 AIR SCW 3195
3. Learned counsel for the appellant submitted that the learned Single Judge and the
Division Bench clearly overlooked the position in law that when a claim is founded on
disputed document, the writ petition is not to be entertained. Additionally there was no
question of any promissory estoppel involved. The document relied upon by the
respondent was a departmental note. The same need approval of the various departments.
The books were not useful for the judicial officers and, therefore, there was no need for
placing any order.
4. Though the respondent is represented
@page-SC2047
in this appeal by a learned counsel, none appeared when the matter was taken up.
5. As noted above the factual scenario is interesting. The document relied upon by the
respondent and the High Court refer to some oral expression of desire by the then Law
Minister. When the view of several departments were involved the question of any oral
view being expressed by a Minister is really not relevant. Further the document relied
upon was nothing but a departmental note which itself clearly indicated that the view of
various departments/Ministries were to be taken and their concurrence was to be
obtained. Apart from that, undisputedly there was some factual dispute as to whether the
intended purchase was of volumes or sets. There is conceptual difference between the
two. The books were not even printed at the relevant point of time. The High Court has
noticed only one volume had been printed. Further the need for the purchase of the books
for the judicial officers was to be assessed in consultation with the High Court. The Law
Minister could not have, without taking the view of the High Court, placed orders. In any
event the dispute as to the volumes or the sets and the interpolation in the documents
were of considerable relevance. Unfortunately the High Court has lightly brushed aside
this aspect.
6. The doctrines of promissory estoppel and legitimate expectation were not applicable to
the facts of the case.
7
. Estoppel is a rule of equity which has gained new dimensions in recent years. A new
class of estoppel has come to be recognized by the courts in this country as well as in
England. The doctrine of 'promissory estoppel' has assumed importance in recent years
though it was dimly noticed in some of the earlier cases. The leading case on the subject
is Central London Property Trust Ltd. v. High Trees House Ltd. (1947) 1 KB 130. The
rule laid down in High Trees case (supra), again came up for consideration before the
King's Bench in Combe v. Bombe (1951) 2 KB 215. Therein the court ruled that the
principle stated in High Trees's case (supra), is that, 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, 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 himself has so introduced, even though it is not supported in point
of law by any consideration, but only by his word. But that principle does not create any
cause of action, which did not exist before; so that, where a promise is made which is not
supported by any consideration, the promise cannot bring an action on the basis of that
promise. The principle enunciated in the High Trees case (supra), was also recognized by
the House of Lords in Tool Metal Manufacturing Co. Ltd. v. Tungsten Electric Co. Ltd.
(1955) 2 All ER 657. That principle was adopted by this Court in Union of India v. Indo-
Afghan Agencies Ltd. (AIR 1968 SC 718) and Turner Morrison and Co. Ltd. v.
Hungerford Investment Trust Ltd. (1972 (1) SCC 857). Doctrine of "Promissory
Estoppel" has of "Promissory Estoppel" has been evolved by the courts, on the principles
of equity, to avoid injustice. "Promissory Estoppel" is defined in Black's Law Dictionary
as "an estoppel which arises when there is a promise which promisor should reasonably
expect to induce action or forbearance of a definite and substantial character on the part
of promisee, and which does induce such action or forbearance, and such promise is
binding if injustice can be avoided only by enforcement of promise". So far as this Court
is concerned, it invoked the doctrine in Indo Afghan Agencies's case (supra) in which it
was, inter alia, laid down that even though the case would not fall within the terms of
Section 115 of the Indian Evidence Act, 1872 (in short the 'Evidence Act') which enacts
the rule of estoppel, it would still be open to a party who had acted on a representation
made by the Government toclaim that the Government should be bound to carry out the
promise made by it even though the promise was not recorded in the form of a formal
contract as required by Article 299 of the Constitution. (See Century Spinning Co. v.
Ulhasnagar Municipal Council (AIR 1971 SC 1021), Radhakrishna v. State of Bihar (AIR
1977 SC 1496), Motilal Padampat Sugar Mills Co. Ltd v. State of U.P. (1979 (2) SCC
409), Union of India v. Godfrey Philips India Ltd. (1985 (4) SCC 369), Dr. Ashok Kumar
Maheshwari v. State of U.P. and Another (1998 (2) Supreme 100). AIR 1972 SC 1311
AIR 1979 SC 621
AIR 1986 SC 806
1998 AIR SCW 729
@page-SC2048
8
. In the backdrop, let us travel a little distance into the past to understand the evolution of
the doctrine of "promissory estoppel". Dixon, J. an Australian Jurist, in Grundt v. Great
Boulder Gold Mines Prorietary Ltd. (1939) 59 CLR 641 (Aust) laid down as under: "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 prevent 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
assumptions were deserted that led to it". The principle, set out above, was reiterated by
Lord Denning in High Trees's case (supra). This principle has been evolved by equity to
avoid injustice. It is neither in the realm of contract nor in the realm of estoppel. Its object
is to interpose equity shorn of its form to mitigate the rigour of strict law, as noted in
Anglo Afghan Agencies's case (supra) and Sharma Transport Represented by D.P. Sharma
v. Government of A.P. and others (2002 (2) SCC 188). AIR 1968 SC 718
2001 AIR SCW 4958
9. Where a particular mode is prescribed for doing an act and there is no impediment in
adopting the procedure, the deviation to act in different manner which does not disclose
any discernible principle which is reasonable itself shall be labelled as arbitrary. Every
State action must be informed by reason and it follows that an act uninformed by reason
is per se arbitrary.
10. This Court's observations in G.B. Mahajan v. Jalgaon Municipal Council (AIR 1991
SC 1153) are kept out of lush field of administrative policy except where policy is
inconsistent with the express or implied provision of a statute which creates the power to
which the policy relates or where a decision made in purported exercise of power is such
that a repository of the power acting reasonably and in good faith could not have made it.
But there has to be a word of caution. Something overwhelming must appear before the
Court will intervene. That is and ought to be a difficult onus for an applicant to discharge.
The Courts are not very good at formulating or evaluating policy. Sometimes when the
Courts have intervened on policy grounds the Court's view of the range of policies open
under the statute or of what is unreasonable policy has not got public acceptance. On the
contrary, curial views of policy have been subjected to stringent criticism.
11. As Professor Wade points out (in Administrative Law by H.W.R. Wade. 6th Edition)
there is ample room within the legal boundaries for radical differences of opinion in
which neither side is unreasonable. The reasonableness in administrative law must,
therefore, distinguish between proper course and improper abuse of power. Nor is the test
Court's own standard of reasonableness as it might conceive it in a given situation. The
point to note is that the thing is not unreasonable in the legal sense merely because the
Court thinks it to be unwise.
12
. In Union of India and Ors. v. Hindustan Development Corporation and Ors. (AIR 1994
SC 998), it was observed that decision taken by the authority must be found to be
arbitrary, unreasonable and not taken in public interest where the doctrine of legitimate
expectation can be applied. If it is a question of policy, even by ways of change of old
policy, the Courts cannot intervene with the decision. In a given case whether there are
such facts and circumstances giving rise to legitimate expectation, would primarily be a
question of fact. 1993 AIR SCW 494
13
. As was observed in Punjab Communications Ltd. v. Union of India and others (AIR
1999 SC 1801), the change in policy can defeat a substantive legitimate expectation if it
can be justified on "Wednesbury reasonableness." The decision-maker has the choice in
the balancing of the pros and cons relevant to the change in policy. It is, therefore, clear
that the choice of policy is for the decision-maker and not the Court. The legitimate
substantive expectation merely permits the Court to find out if the change of policy which
is the cause for defeating the legitimate expectation is irrational or perverse or one
whichno reasonable person could have made. A claim based on merely legitimate
expectation without anything more cannot ipso facto give a right. Its uniqueness lies in
the fact that it covers the entire span of time; present, past and future. 1999 AIR
SCW 1394
@page-SC2049
How significant is the statement that today is tomorrows' yesterday. The present is as we
experience it, the past is a present memory and future is a present expectation. For legal
purposes, expectation is not same as anticipation. Legitimacy of an expectation can be
inferred only if it is founded on the sanction of law.
14. As observed in Attorney General for New Southwale v. Quinn (1990 (64) Australian
LJR 327) to strike the exercise of administrative power solely on the ground of avoiding
the disappointment of the legitimate expectations of an individual would be to set the
Courts adrift on a featureless sea of pragmatism. Moreover, the negotiation of a
legitimate expectation (falling short of a legal right) is too nebulous to form a basis for
invalidating the exercise of a power when its exercise otherwise accords with law. If a
denial of legitimate expectation in a given case amounts to denial of right guaranteed or
is arbitrary, discriminatory, unfair or biased, gross abuse of power or violation of
principles of natural justice, the same can be questioned on the well known grounds
attracting Article 14 but a claim based on mere legitimate expectation without anything
more cannot ipso facto give a right to invoke these principles. It can be one of the
grounds to consider, but the Court must lift the veil and see whether the decision is
violative of these principles warranting interference. It depends very much on the facts
and the recognised general principles of administrative law applicable to such facts and
the concept of legitimate expectation which is the latest recruit to a long list of concepts
fashioned by the Courts for the review of administrative action must be restricted to the
general legal limitations applicable and binding the manner of the future exercise of
administrative power in a particular case. It follows that the concept of legitimate
expectation is 'not the key which unlocks the treasure of natural justice and it ought not to
unlock the gates which shuts the Court out of review on the merits,' particularly, when the
elements of speculation and uncertainty are inherent in that very concept. As cautioned in
Attorney General for New Southwale's case the Courts should restrain themselves and
respect such claims duly to the legal limitations. It is a well meant caution. Otherwise, a
resourceful litigant having vested interest in contract, licences, etc. can successfully
indulge in getting welfare activities mandated by directing principles thwarted to further
his own interest. The caution, particularly in the changing scenario becomes all the more
important.
15. If the State acts within the bounds of reasonableness, it would be legitimate to take
into consideration the national priorities and adopt trade policies. As noted above, the
ultimate test is whether on the touchstone of reasonableness the policy decision comes
out unscathed.
16. Article 166 of the Constitution deals with the conduct of Government business. The
said provision reads as follows :
"166. Conduct of business of the Government of a State.- (1) All executive action of the
Government of a State shall be expressed to be taken in the name of the Governor.
(2) Orders and other instruments made and executed in the name of the Governor shall be
authenticated in such manner as may be specified in rules to be made by the Governor,
and the validity of an order or instrument which is so authenticated shall not be called in
question on the ground that it is not an order or instrument made or executed by the
Governor.
(3) The Governor shall make rules for the more convenient transaction of the business of
the Government of the State, and for the allocation among Ministers of the said business
insofar as it is not business with respect to which the Governor is by or under this
Constitution required to act in his discretion."
Clause (1) requires that all executive action of the State Government shall have to be
taken in the name of the Governor. Further there is no particular formula of words
required for compliance with Article 166(1). What the Court has to see is whether the
substance of its requirement has been complied with. A Constitution Bench in R.
Chitralekha etc. v. State of Mysore and Ors. (AIR 1964 SC 1823) held that the provisions
of the Article were only directory and not mandatory in character and if they were not
complied with it could still be established as a question of fact that the impugned order
was issued in fact by the State Government or the Governor. Clause (1) does not
prescribe how an executive action of the Government is to be performed; it only
prescribes the mode under which such act is to be expressed. While clause (1) is in
relation to the mode of expression, clause (2)
@page-SC2050
lays down the ways in which the order is to be authenticated. Whether there is any
Government order in terms of Article 166; has to be adjudicated from the factual
background of each case.
17. In order to invoke the doctrine of promissory estoppel clear, sound and positive
foundation must be laid in the petition itself by the party invoking the doctrine and bald
expressions without any supporting material to the effect that the doctrine is attracted
because the party invoking the doctrine has altered its position relying on the assurance of
the Government would not be sufficient to press into aid the doctrine. The Courts are
bound to consider all aspects including the results sought to be achieved and the public
good at large, because while considering the applicability of the doctrine, the Courts have
to do equity and the fundamental principles of equity must forever be present in the mind
of the Court.
18. As the factual scenario goes to show the principles of promissory estoppel were
clearly inapplicable to the facts of the case. Above being the position, the appeal deserves
to be allowed which we direct. Orders of learned Single Judge and the Division Bench
are set aside
19. The appeal is allowed but without any order as to costs.
Appeal allowed.
AIR 2008 SUPREME COURT 2050 "Rameshwar Prasad v. Basanti Lal"
Rameshwar Prasad (D) by L.Rs. v. Basanti Lal.
Specific Relief Act (47 of 1963), S.16(C) - CONTRACT - AGREEMENT TO SELL -
INTEREST - Specific performance - Contract for sale - Readiness and willingness -
Agreement of sale stipulating payment of interest on balance sale consideration till it is
paid - Averment made in plaint that plaintiff is and was always ready to pay balance
consideration and to comply with terms of sale agreement - Refusing decree on ground
that willingness to pay interest is not averred - Improper - It is contrary to facts and
material on record.
L. P. A. No.16 of 1993, D/-22-09-2000 (M. P.), Reversed. (Paras 7, 11)
2006 AIR SCW 2606 : AIR 2006 SC 2172 : 2006 (4) ALJ 262 : 2006 (4) AIR Kar R 628
10
1993 AIR SCW 3734 : AIR 1994 SC 105 : 1993 All LJ 1363 9
Vinod Bobde, Sr. Advocate, Ms. Praveena Gautam, Shyam Mudaliar, Nitin Setia, Pramod
B. Agarwala, for Appellants; Uday U. Lalit, Sr. Advocate, Ajay Choudhary, for
Respondent.
* L.P.A. No.16 of 1993, D/- 22-9-2000 (MP).
Judgement
1. Dr. ARIJIT PASAYAT, J. :- Challenge in this appeal is to the judgment of the Madhya
Pradesh High Court, Indore Bench dismissing LPA No. 16 of 1993 filed by the appellant
Rameshwar Prasad. In this appeal the legal representatives of Rameshwar Prasad have
been impleaded after his death. By the impugned judgment by which two LPAs. i.e. LPA
Nos.16 and 19 of 1993 were disposed of. LPA No. 16 of 1993 was filed by Rameshwar
Prasad whereas other LPA was filed by the present respondent Basanti Lal. Rameshwar
Prasad had filed a suit for the relief of specific performance of contract. The trial court
granted the relief of specific performance of the contract. First appeal No.45 of 1976 was
filed by Basanti Lal, the respondent. The appeal was allowed and the judgment and
decree of the trial court was set aside on the following terms :
a) That the appellant shall refund the sum of Rs.3000/- as agreed in Ex. P/3 to the
respondent by payment or deposit in trial court within a period of one month from today.
b) That the respondent on payment or deposit of this amount, shall put the appellant in
vacant possession of the property covered by Ex. P/3 within a period of 15 days thereafter
on analogy of Section 65 of the Contract Act.
c) The appellant shall be liable to pay interest at the rate of 1% per month on this amount
in case payment or deposit is made beyond the period of one month from the date of
default till compliance.
d) The respondent shall be liable to pay mesne profits, determinable by the trial court in
terms of Order 20 Rule 12 of the Code and ordered in the shape of final decree in that
behalf in pursuance of this direction on failure to deliver possession
@page-SC2051
within 15 days as directed above from the date of default till delivery of possession. No
claim of standing crops shall be admissible in view of enjoyment of usufruct for such a
long duration and that possession shall be delivered along with the standing crops, if in
existence.
e) Parties are left to bear their own costs of this appeal as incurred. Counsel fee on each
side shall, on certification, be Rs.1500/-.
2. Both Rameshwar Prasad and Basanti Lal preferred appeals before the Division Bench.
By the impugned judgment so far as the appeal filed by Rameshwar Prasad is concerned
the High Court held that the plaintiff had neither pleaded nor proved that he was ever
ready and willing to pay interest, having failed to prove the purported waiver of interest,
as claimed, the Division Bench held that the plaintiff has not established basic ingredients
for decree of specific performance of contract. On that ground alone the appeal was
dismissed and other points raised were not considered.
3. Learned counsel for the appellants submitted that the High Court categorically noted
that in paragraph 13 of the plaint as was shown in the notice sent to the defendant, it was
categorically stated that he was compelled to comply with all terms and conditions of
agreement. The High Court wrongly construed the statement and came to the conclusion
that the said statement cannot be construed to mean that plaintiff was ready to pay the
amount of interest, particularly in view of the stand of the defendant. It was pointed out
that in the paragraph 13 it has been stated that the plaintiff was always ready and willing
and even ready and willing today for performance of his part of the contract.
4. It is submitted that the question of interest of delay was never raised before the trial
court.
5. Learned counsel for the respondent submitted that there was dispute as regards the
claim of payment of Rs.4,500/- and if there was delay interest was payable. Plaintiff
raised an absolutely frivolous plea that payment was being made on behalf of the
defendant.
6. The agreement dated 13-9-1963 contains the following clause which is of
significance :
"Till the payment of instalment, interest at the rate of Rs.0.75 paise per cent shall be
payable on Rs.5,000/-. Interest shall be payable w.e.f. 13-9-1963."
Following averment in the plaint needs to be quoted :
"That the plaintiff was always ready and willing to execute the sale deed and fulfil his
part of the contract and is even so today. The plaintiff had even informed through his
counsel Sh. U.N. Bhachawat, to the defendant in reply to his notice dated 7-10-1968 that
he was ready and willing to pay balance amount of sale consideration of Rs.500 and to
comply the terms of the sale agreement which were applicable on the plaintiff and the
plaintiff was so ready even before. The defendant should execute the sale deed and
should get Rs.500/- from the plaintiff and get the same registered."
7. There is a specific statement that the plaintiff was willing to comply with the terms of
the sale agreement which were applicable and was so ready even before. One of the terms
in the agreement related to payment of interest. Therefore the conclusion of the High
Court that there is no specific plea regarding readiness to pay interest is contrary to the
factual scenario, in view of the categorical averment made in the plaint.
8. The provisions of Section 16(c) of the Specific Relief Act, 1963 (in short the 'Act') are
as follows :
"Section 16 - Personal bars to relief : Specific performance of a contract cannot be
enforced in favour of a person-(a)..... (b).....(c) who fails to aver and prove that he has
performed or has always been ready and willing to perform the essential terms of the
contract which are to be performed by him, other than terms of the performance of which
has been prevented or waived by the defendant."
The basic principle behind Section 16(c) read with Explanation (ii) is that any person
seeking benefit of the specific performance of contract must manifest that his conduct has
been blemishless throughout entitling him to the specific relief. The provision imposes a
personal bar. The Court is to grant relief on the basis of the conduct of the person seeking
relief. If the pleadings manifest that the conduct of the plaintiff entitles him to get the
relief on perusal of the plaint he should not be denied the relief.
9
. Section 16(c) of the Act mandates the plaintiff to aver in the plaint and establish 1993
AIR SCW 3734
@page-SC2052
as the fact by evidence aliunde that he has always been ready and willing to perform his
part of the contract. On considering almost identical fact situation it was held by this
Court in Surya Narain Upadhyaya v. Ram Roop Pandey and Ors. (AIR 1994 SC 105) that
the plaintiff had substantiated his plea.
10
. These aspects were also highlighted in Sugani v. Rameshwar Das and Anr. (2006 (11)
SCC 587). 2006 AIR SCW 2606
11. The High Court's conclusions are clearly contrary to the materials on record. The
High Court was wrong in holding that that there was no indication about the readiness
and willingness to pay interest. Since the High Court has not decided the other issues, we
set aside the impugned judgment and remit the matter to it for considering the matter
afresh in accordance with law. The impugned conclusions stand nullified by this
judgment.
12. As the matter is pending since long, let the High Court decide the matter as early as
practicable preferably by the end of August, 2008.
13. The appeal is disposed of accordingly with no orders as to costs.
Appeal allowed.
AIR 2008 SUPREME COURT 2052 "Seenivasan v. Peter Jebaraj"
(From : 2000 (3) Mad LW 487)
Seenivasan v. Peter Jebaraj and Anr.
Transfer of Property Act (4 of 1882), S.52 - Civil P.C. (5 of 1908), O.1, R.10(5) -
IMMOVABLE PROPERTY - CIVIL PROCEDURE - AGREEMENT TO SELL - Lis
pendens - Applicability - Sale by agreement holder to third party - Suit for specific
performance against agreement holder - Further sale made by third party during suit - Not
invalid.
The plaintiff and defendant entered into an agreement of sale. The defendant thereafter
sold the property to a third party. Suit for specific performance of agreement of sale was
filed only against defendant. An application to add third party as defendant was made.
The third party made further sale of property. Thereafter, the application for addition of
third party as defendant was allowed. The summons was served on added defendant later.
As under O. 1, R. 10(5) the defendant can be deemed to be party to suit only from date
summons is served on him, the sale made by him much before cannot be said to be
invalid. (Paras 6, 9)
AIR 1967 SC 278 (Disting.) 9
AIR 1954 SC 75 8
AIR 1932 All 694 8
AIR 1931 All 67 8
(1846) 67 ER 1057 8
V. Prabhakar, Ramjee Prasad, Mrs. Revathy Raghavan, for Appellant; Ms. Shashi M.
Kapila, Rishi Malhotra, for Respondents.
Judgement
Dr. ARIJIT PASAYAT, J. :- Challenge in this appeal is to the judgment of a learned Single
Judge of the Madras High Court in Second Appeal filed by the respondent No. 1.
On 12-2-1978 an agreement for sale was entered into between one Shahul Hameed and
Arunachalam (father of the appellant). On 26-5-1978 Shahul Hameed sold the property to
one Saraswathi Ammal who was not a party to the proceedings. On 3-2-1981 aforesaid
Arunachalam instituted suit No.OS 528 of 1981 against Shahul Hameed for specific
performance. Initially Saraswathi Ammal was not a party. On 13-7-1983 an application
(I.A. No. 830 of 1983) was filed to implead Saraswathi Ammal as defendant. On 28-1-
1984 Saraswathi Ammal sold the property to Anna Pushpam Ammal and Lalitha Ammal
under two sale deeds. I.A. No. 830 of 1983 to implead Saraswathi Ammal was allowed
on 16-4-1984. On 17-9-1984 plaint was amended showing Saraswathi Ammal as
defendant. An ex parte decree was passed in OS No. 528 of 1981 on 11-7-1985. On 30-
12-1985 Anna Pushpam Ammal sold the property to the respondent No.1. On 8-8-1986
Lalitha Ammal sold the property to respondent No.2. On 10-11-1987 Execution Petition
was filed to execute the decree in the aforesaid OS No. 528 of 1981. On 11-1-1988, the
Executing Court executed sale deed in favour of Arunachalam. On 23-3-1988 I.A. No.
640 of 1988 was filed by Saraswathi Ammal to condone the delay in seeking to set aside
ex parte decree in the suit. On 21-7-1989 the said I.A. was dismissed as not pressed. On
29-7-1989 a second application was filed i.e.
@page-SC2053
I.A. 987 of 1989 to set aside the ex parte decree. On 20-6-1990, the same was dismissed
on merit. On 12-10-1992 Appeal (CMA 3 of 1991) filed by Saraswathi Ammal was
dismissed. On 7-11-1994 Revision Petition i.e. CRP No. 3139 of 1994 was dismissed. On
12-12-1994 the suit O.S. No. 673 of 1994 was filed by the respondents for declaration of
title and injunction. The same was decreed on 26-4-1996. An appeal filed by the appellant
(AS 23 of 1999) was allowed on 24-9-1999. By the impugned judgment dated 3-1-2000
second appeal filed by the respondents was allowed. The High Court held that to a
proceeding of this nature Order I Rule 10 (4and 5) applied and held that Saraswathi
Ammal had got absolute title when sale to Anna Pushpam Ammal was made to plaintiffs'
vendors under Exhibit A2 and A7 who in terms sold the same to the plaintiffs. The
subsequent transferees Anna Pushpam Ammal and Lalitha Ammal are not parties to the
suit and the title vests with them and the plaintiffs also got absolute title. On the date
when the ex parte decree was passed, Saraswathi Ammal did not have any right to the
property. It was also held that Exh. A2 and A7 were not hit by the principles of lis
pendens and Saraswathi Ammal was also able to convey the title to the vendors of the
plaintiffs.
3. Learned counsel for the appellant submitted that once the application for bringing
Saraswathi Ammal as party was allowed, the same became operative from the date of its
filing and therefore, the sale by Saraswathi Ammal to Anna Pushpam Ammal and Lalitha
Ammal under Ex. A2 to A7 did not convey any title. It was also submitted that the effect
of Section 52 of the Transfer of Property Act, 1882, (in short the 'Act') has also to be
noted.
4. Learned counsel for the respondents on the other hand supported the order of the High
Court.
5. The Order 1, Rule 10 (so far as relevant) and Section 52 of the Act read as follows :
"Order 1, Rule 10(4)/(5)
(4) Where defendant added, plaint to be amended- When a defendant is added, the plaint
shall, unless court otherwise directs, be amended in such manner as may be necessary and
amended copies of the summons and of the plaint shall be served on the new defendant
and if the court thinks fit, on the original defendant.
(5) Subject to the provisions of the Indian Limitation Act, 1877 (15 of 1877) Section 22,
the proceedings as against any person added as defendant shall be deemed to have begun
only on the service of the summons."
Section 52 of the Act
"Sec.52. During the pendency in any court having authority within the limits of India
excluding the State of Jammu and Kashmir or established beyond such limits by the
central Government, of any suit or proceedings which is not collusive and in which any
right of immovable property is directly and specifically in question, the property cannot
be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect
the rights of any other party thereto under any decree or orders which may be made
therein except under the authority of the court and on such terms as it may impose."
6. The crucial expression in Order 1, Rule 10 is "only on the service of the summons". It
is abundantly clear that if any dependant is impleaded subsequently proceedings as
against him shall be deemed to have begun only from the date of services of summons.
Same of course is subject to the provisions of Section 22 of the Indian Limitation Act,
1877 (in short 'Limitation Act').
7. In sub-rule (5), words "Indian Limitation Act, 1877" are substituted by Legislature as
"Limitation Act, 1963" and "Section 22" by "Section 21". Said provision does not in any
way dilute the significance of the expression "shall be deemed to have begun only on the
service of the summons".
8
. In Durga Prasad and Anr. v. Deep Chand and Ors. (AIR 1954 SC 75) it was held as
follows : Paras 40 and 42 of AIR
"First, we reach the position that the title to the property has validly passed from the
vendor and resides in the subsequent transferee. The sale to him is not void but only
voidable at the option of the earlier "contractor". As the title no longer rests in the vendor
it would be illogical from a convincing point of view to compel him to convey to the
plaintiff unless steps are taken to revest the title in him either by cancellation of the
subsequent sale or by reconveyance from the subsequent purchaser to him. We do not
know of any case in which a reconveyance to the vendor was ordered but Sulaiman, C.J.
adopted the other course in Kali Charan
@page-SC2054
v. Janak Deo (AIR 1932 All 694). He directed cancellation of the subsequent sale and
conveyance to the plaintiff by the vendor in accordance with the contract of sale of which
the plaintiff sought specific performance. But though this sounds logical the objection to
it is that it might bring in its train complication between the vendor and the subsequent
purchaser. There may be covenants in the deed between them which it would be
inequitable to disturb by cancellation of their deed. Accordingly, we do not think that is a
desirable solution.
xxxxxx
In our opinion, the proper form of decree is to direct specific performance of the contract
between the vendor and the plaintiff and direct the subsequent transferee to join in the
conveyance so as to pass on the title which resides in him to the plaintiff. He does not
join in any special covenants made between the plaintiff and his vendor; all he does is to
pass on his title to the plaintiff. This was the course followed by the Calcutta High Court
in Kafiladdin v. Samiraddin (AIR 1931 Cal 67), and appears to be the English practice.
See Fry on Specific Performance, 6th edition, page 90, paragraph 207; also Potter v.
Sanders (67 ER 1057). We direct accordingly."
9
. Above being the position, the High Court was right in its view. Though strong reliance
was placed on a decision of this Court in Ramprasad Dagaduram v. Vijaykumar Motilal
Hirakhanwala and Ors. [1967(2) SCJ 805], the same has no application because that
related to a case of plaintiff. In the instant case, it relates to the defendant and Order 1,
Rule 10(5) statutorily specifies the date on which the impleadment takes effect. Order 1,
Rule 10(5) is a deeming provision. AIR 1967 SCW 278
10. That being so, the High Court's impugned judgment suffers from no infirmity to
warrant interference.
11. Appeal is dismissed with no order as to costs.
Appeal dismissed.
AIR 2008 SUPREME COURT 2054 "Reena Sadh v. Anjana Enterprises"
From : 2007 (138) Delhi L. T. 582)
Civil Appeal No.2472 of 2008 (arising out of SLP (C) No. 9959 of 2007), D/- 4 -4 -2008.
Reena Sadh v. Anjana Enterprises.
Civil P.C. (5 of 1908), O.9, R.11, R.13 - DECREE - HIGH COURT - Delhi High Court
Rules and Orders, Chapter 13, R.6 - Ex parte decree - In transferred suit - Court did not
issue notice to parties vide R.6, Chapter 13 - Requirement of notice is mandatory - Non-
service of notice sufficient to set aside decree - R.6 speaks of 'Parties' and not 'interested
parties'.
2007 (138) Delhi LT 582, Reversed.
The language of Rule 6 of High Court Rules provides that the Presiding Officer of Court
from where matter was transferred was responsible for informing the parties regarding
the transfer as also the date on which parties were supposed to be present before the
Court to which case is transferred. This requirement is mandatory. Non-compliance of R.
6 of High Court Rules is by itself sufficient to set aside ex parte decree. (Paras 12, 13)
The plea that the appellant defendant was not at all interested in the proceedings and
therefore, need not be served under R. 6 of High Court Rules is not sustainable. Records
do not show that she was proceeded ex parte by the High Court before transfer of case.
Therefore, she was certainly in the array of parties on date of transfer and the Rule thus
applies to her with full force. Moreover, in the language of the Rule the word used is
'parties' and not "interested parties".
2007(138) Delhi LT 582, Reversed. (Para 12)
Yashank Adhyaru, Sr. Advocate, Sarad Kumar Singhania, with him for Appellant; Rajiv
Nanda and L.D. Adlakha, for Respondent.
Judgement
2. The present appeal challenges the orders passed by the Delhi High Court dismissing
the appeal filed by the present appellant wherein she had challenged the order passed by
Additional District Judge, Tis Hazari Courts, Delhi dismissing her application under
Order IX, Rule 13 of the Code of Civil Procedure.
3. The following facts would help understanding the controversy involved.
4. The appellant herein was arrayed as a Third Defendant in a Civil Suit filed by Anjana
Enterprises, the respondent herein. This suit was initially filed in the High Court of Delhi
and was pending there. Along with the appellant there were three other defendants
@page-SC2055
including defendant No.4-firm M/ s.Renuka Inc. The suit was for recovery of Rs.
14,50,000/- together with interest at the rate of 24% per annum both pendente lite and
future. During the pendency of the suit the pecuniary jurisdiction of the District Courts
was enhanced and, therefore, the suit came to be transferred to the Court of Additional
District Judge, Delhi by order dated 8-8-2003. The order reached that court on 25-9-2003.
It seems that the court of Additional District Judge thereafter sent notices to the parties
and the matter was fixed for 22-10-2003. This order was passed on 25-9-2003 itself and
the plaintiff-respondent had noted the further date of 22-10-2003. On 22-10-2003 it was
found that the defendants had not been served and therefore, the court passed the order
that the defendants and their counsel should be served through the court notice for 1-12-
2003. The addresses for these notices were allegedly furnished by the plaintiff-respondent
on that date. However, it seems that on 1-12-2003, the Trial Court issued notice only to
the counsel of the defendants. The matter was fixed on 7-1-2004 for the appearance of the
parties. It seems that on 22-9-2004, the Court proceeded ex parte against the appellant
herein and ultimately an ex parte judgment and decree was passed on 27-10-2005. This
decree was sought to be set aside under Order IX, Rule 13 and for that an application
came to be filed before the Trial Court. However, the Trial Court rejected the said
application requiring the appellant to file an appeal before the Delhi High Court.
However, even that appeal was dismissed and that is how the appellant has come before
us by way of the present appeal.
5. Learned counsel appearing on behalf of the appellant urged that both the courts below
have not realized that the appellant had no opportunity whatsoever to take part in the
proceedings since she was never served a notice of the proceedings which were
transferred from Delhi High Court to the Court of Additional District Judge, Delhi.
Secondly the learned counsel urged that the true impact and effect of Rule 6 Chapter 13
was also not realized by the courts below under which it was imperative that after the
transfer, all the parties were bound to be informed regarding the transfer and the dates. It
was further urged that both the courts below have not realized that the counsel who
represented the original defendants 1, 2 and 4 was not her counsel and, therefore, the
notice served on the said counsel amounted to no notice being served or at least was not a
sufficient notice. Lastly the courts below have not realized that the appellant had no
concern whatsoever with the aforementioned defendant-firm of which she was neither a
Director nor the partner and thus had no concern with the said loan of Rs.14,50,000/-.
6. As against this, the learned counsel for the respondent-plaintiff urged that there were
circumstances on record to suggest that the appellant was never serious about these
proceedings and in spite of number of opportunities having been granted to her she
remained dormant in the matter of defending the suit. It was also urged that the appellant
did not show the expediency that was expected from her even in the matter of making an
application under Order IX, Rule 13. It was lastly urged that the application was made
only for the sake of protracting the litigation.
7. On this backdrop it will be proper to see the treatment given to the application by the
Trial Court as also the Delhi High Court. It is seen from the order of the Trial Court that it
was an admitted position that the counsel representing the Original Defendants 1, 2 and 4
did not have a Vakalatnama on behalf of the appellant. The Trial Court, however, went on
to note that the counsel for Defendants 1, 2 and 4 put in his appearance on more than one
occasions consciously and deliberately on behalf of the appellant also and sought for time
to file written statement. Learned Judge also went on to note that the other defendants
were the family members of the present appellant. It was also noted that in spite of the
summons, the appellant had not appeared and, therefore, she could not turn around and
say that on transfer she was bound to be given the notice of the proceedings. The Court
further recorded a finding that the intentions of the appellant were mala fide from the day
one, which was apparent from the fact that the present appellant had not even furnished
the correct address even in the present application under Order IX, Rule 13, CPC. The
learned Judge also held that it was only this appellant who was looking after the entire
business on behalf of defendants 1, 2 and 4 in India as the other individuals were the
residents of USA and, therefore, it was not mandatory to issue any
@page-SC2056
court's notice either to the parties or to their counsel. The learned Additional District
Judge noted that one Mr. Ajay Amitab Suman was present on the fateful day, i.e., on 8-8-
2003 on behalf of the appellant. The learned Judge also noted that the said counsel did
represent the interest of the appellant which was clear from the order sheets 21-2-2002,
22-7-2002 and 13-2-2003. The learned Judge, therefore, went on to conclude that the
defendant No.3 (appellant herein) was not interested in defending the matter though she
was being represented by the very same counsel who was looking after the interest of
defendants 1, 2 and 4 and that she had no cogent explanation for her non appearance. As
regard the impact of Rule 6, Chapter 13, the learned Judge concluded that since she had
no interest in the matter, it was not necessary to serve her with the notice because under
the Rule the word "parties" only would mean the "interested parties". The court also
noted that one K.K. Sharma who was appearing on behalf of defendants 1, 2 and 4 also
put in his appearance for defendants 1, 2 and 4 and he never bothered to clarify that he
did not represent the defendant No.3 (appellant herein). Ultimately, the Court held that
the appellant failed to establish her credentials and that her application amounted to abuse
of the process of the court.
8. The High Court firstly noted about the facts regarding the transfer and also found that
one Avinash Lakhan Pal, proxy counsel for Mr. K. K. Sharma, Advocate had appeared for
Defendants 1, 2 and 4. The High Court noted various dates on which the court hearings
were fixed after transfer. The High Court also noted that the interpretation given by the
Trial Court to the word "parties" occurring in Rule 6, Chapter 13 was correct and that
only the parties interested were bound to be served with the notice of transfer of the suit
and since the appellant was not interested in defending the suit, it was not necessary to
serve her at all. The High Court perused the plaint and found that the appellant was
instrumental in reaching the transaction stated in the plaint and ultimately the High Court
observed, relying on Order 9, Rule 11, CPC that since the appellant had already the
notice of the proceedings before the High Court through her husband on 6-10-2001, it
was clear that she was adopting the policy of hide and seek and was taking the court for a
ride. The High Court also mentioned that the counsel Mr.L.D. Adlakha and Mr. Ajay
Amittabh Suman who appeared on 8-8-2003 before the Joint Registrar should have
clarified that they are not representing the appellant (defendant No.3). The High Court
ultimately held that Rule 6 of Chapter 13 was duly complied with.
9. On the backdrop of these findings it is to be seen as to whether there was compliance
of Rule 6, Chapter 13 and if there was no compliance, the decree was liable to be set
aside under Order IX, Rule 13 CPC. Before we approach this question, few admitted
facts would be necessary to be noted. They are :
i) The appellant was not being represented by the counsel who appeared in the High
Court on behalf of defendants 1, 2 and 4 (Ajay Amitabh Suman and/or K.K. Sharma).
Shri L.D. Adlakha who allegedly appeared before the Joint Registrar Shri N.P. Kaushik
on 8-8-2003 was not engaged by the appellant being plaintiffs counsel. Thus there was no
counsel representing the appellant either before the Delhi High Court or before the
Additional District Judge, Delhi.
ii) Admittedly, there was no notice of transfer of proceedings or dates, to the appellant
and notice to defendants 1, 2 and 4 was deemed to be sufficient notice to defendant No.3.
iii) Defendant No.3 was not proceeded ex parte before the High Court at any point of
time and no order under Order IX, Rule 11 CPC was ever passed by the Delhi High Court
or even the Court of Additional District Judge. Delhi.
10. The wording of Rule 6, Chapter 13 is as follows :
"Records be sent immediately to the court to which case is transferred: when a case is
transferred by administrative order from one court to another, the presiding officer to the
court from which it has been transferred shall be responsible for informing the parties
regarding the transfer, and of the date on which they should appear before the court to
which the case has been transferred. The District Judge passing the order of transfer shall
see that the records are sent to the court concerned and parties informed of the date fixed
with the least possible delay. When a case is transferred by judicial order the court
passing the order should fix a date on which the parties should attend
@page-SC2057
the court to which the case is transferred."
11. In this case, the matter was transferred by the order of Joint Registrar Shri N.P.
Kaushik by his order dated 8-8-2003 which order reads thus :
"Present : Mr. L.D. Adlakha for the Plaintiff
Mr.Ajay Amitabh Suman for defendant
S.No. 1441/97
This is a case where the value of the suit for the purpose of pecuniary jurisdictions is less
than Rs.20 lacs. In view of the orders passed by the Hon'ble Chief Justice the present
matter is transferred to the court of Hon'ble District Judge Tis Hazari Courts, Delhi
assignment to a court of competent jurisdiction. Parties and/or their counsel to appear
before the Hon'ble District Judge, Delhi on 25th September, 2003."
This being an administrative order, passed by the Joint Registrar, it was incumbent on the
part of the High Court to let all the parties know about the date on which they should
appear before the District Judge. In this order the Registrar has recorded the date of 25th
September, 2003 as the date on which the parties should appear before the District Judge,
Delhi. However, it is obvious that it was only Shri Ajay Amitabh Suman who was
appearing for the defendants. There is no reference whatsoever in the above order that
Shri Ajay Amitabh Suman was appearing for 'all' the defendants.
12. The language of the Rule provides that the Presiding Officer of the Court from where
the matter was transferred (in this case the Delhi High Court) was responsible for
informing the parties regarding the transfer as also the date on which the parties were
supposed to be present before the court to which the case was transferred (District Judge
in this case). Admittedly this did not happen in case of the present appellant who was the
original defendant No.3. It is obvious that the Joint Registrar Shri N.P. Kaushik
proceeded under the impression that Shri Ajay Amitabh Suman was appearing for all the
defendants.Therefore, there was no compliance with this Rule. The Courts below have
observed that on this date the appellant was not appearing before the court at all though
she was served way back in 2001. However, it is nobody's case and indeed the records do
not show that she was proceeded ex parte by the High Court. Therefore, she was certainly
in the array of parties on 8-8-2003 and the Rule thus applied to her with full force. It
cannot, therefore, be said that the word "parties" used in the Rule did not include her who
was original defendant No.3. In our opinion the courts below have obviously committed
an error in treating that the appellant not being an interested party was not required to be
informed of the transfer of the case as also the date on which the parties were expected to
appear before the court to which the case was transferred. It is to be seen that in the
language of the Rule the word used is "parties" and not "interested parties". If we accept
the interpretation put forth by the courts below, the word "interested" would have to be
read in the Rule which is not permissible.
13. From the very language of the Rule, the Rule has to be held as mandatory Rule and
indeed in the absence of such Rule, the concerned parties would have no notice of the
transfer of the case nor of the proceedings in such a transferred case. The Rule, therefore,
has to be held requiring the strict compliance of the same.
14. This is apart from the fact that the counsel appearing for the defendants 1, 2 and 4
was under no duty to inform that he was not representing the defendant No.3 (appellant
herein). Once it is accepted that there was no counsel representing the defendant No.3
(appellant herein) it was incumbent on the part of the Registrar to let the appellant know
about the date in this case, i.e., 24th September, 2003.
15. Further when we see the order sheet of the court of Additional District Judge, Delhi, it
is apparent that on 25-9-2003 neither the plaintiff nor the defendants appeared before the
court and later on the same date one Ghanshyam Dass, partner of Anjana Enterprises, i.e.,
the plaintiff appeared before the court and noted the date. Even on that date no other
defendant had any knowledge about the further date on which the suit was fixed before
the Additional District Judge. It is obvious that thereafter the matter was fixed on 1-12-
2003 on which date the defendant was not served and, therefore, the matter was
adjourned to 7-1-2004 when again the matter was adjourned for fresh notice to the
defendants and was fixed for 9-4-2004 and it was only on 12-4-2004 that one Avinash
Lakhan Pal, a proxy counsel for Shri K.K. Sharma, Advocate
@page-SC2058
appeared and then the matter was adjourned for filing the Reply. (There appears to be an
obvious mistake in the order passed by the High Court inasmuch it is mentioned that Shri
Ajay Amitabh Suman appeared on 12-4-2004 and the matter was adjourned to 8-4-2004
which is not possible.) It seems that thereafter also at no point of time was the appellant
ever served or got an opportunity to pray for time to take part in the suit. It must be
remembered at this juncture that till this time there were no ex parte proceedings ordered
against the present appellant either before the Delhi High Court or before the Additional
District Judge, Delhi. From the orders before us it seems that ultimately the ex parte
evidence was ordered on 17-8-2004 and the matter was fixed on 29-10-2004 and
thereafter on various dates for ex parte evidence and ultimately the ex parte decree was
passed on 27-10-2005. It is further obvious that on these dates the other defendants did
not remain present but more particularly, the present appellant was never served. Under
these circumstances it is difficult to hold that there was a proper compliance of Rule 6 on
the transfer of the matter from Delhi High Court to the court of Additional District Judge,
Delhi. Once it is held that the appellant had no notice whatsoever and further she was
bound to be given the notice of transfer, she being the party before the Delhi High Court,
all the other contentions raised by the decree-holder and the findings recorded by the
courts below must fall down.
16. We find no duty in the counsel who was representing the defendants 1, 2 and 4 to
inform about the non-service of notice to this appellant. All the other factual findings
regarding the mala fides on the part of the defendant No.3 (appellant herein) or the so-
called designs by her to protract the suit go in the background once it is held that she did
not have any notice of the transfer. It was the duty of the Registrar of the Delhi High
Court and further it was the duty of the court presiding, i.e., the Additional District Judge
to see that the decree is passed only after the proper service. In the absence of a notice,
we do not see any justification to pass the ex parte decree and, therefore, we are of the
clear opinion that both the courts below have erred in rejecting the application under
Order IX, Rule 13. In our opinion the non-service of the notice was a sufficient reason to
set aside the decree against the defendant No.3 (appellant herein).
17. In view of the above we set aside both the orders of the courts below and allow the
application under Order IX, Rule 13. Counsel's fee fixed at Rs.10,000/-.
Appeal allowed.
AIR 2008 SUPREME COURT 2058 "Kunvarjeet Singh Khandpur v. Kirandeep Kaur"
(From : Delhi)*
-2008.
Kunvarjeet Singh Khandpur v. Kirandeep Kaur and Ors.
Succession Act (39 of 1925), S.278 - Limitation Act (36 of 1963), Art.137 -
SUCCESSION - LIMITATION - APPLICABILITY OF AN ACT - Letters of
administration - Petition for - Limitation - Art.137 of 1963 Act applies.
AIR 1983 Bom 268; AIR 1991 Mad 214, (2004) 112 DLT 877, Partly Overruled.
Any application to Civil Court made under any Act is covered by Article 137 of
Limitation Act. The application for Letter of Administration is made in terms of Section
264 of Succession Act 1925 to the District Judge. Section 2(bb) of the 1925 Act defines
the District Judge to be Judge of Principal Civil Court. Article 137 is clearly applicable to
the petition for grant of Letters of Administration. Proceedings for grant of probate or
Letters of Administration applicant merely seeks recognition from the Court to perform a
duty. Because of the nature of the proceedings it is a continuing right. (Paras 12, 14)
AIR 1983 Bom 268, AIR 1991 Mad 214, (2004) 112 DLT 877, Partly Overruled.
Article 137 is clearly applicable to the petition for grant of Letters of Administration. As
such when on withdrawal of probate proceedings an application for grant of Letters of
Administration was filed by the appellants and the application therefor was filed within 3
years of date of the withdrawal, the application cannot be dismissed on ground of
limitation. (Para 18)
@page-SC2059

2004 (112) DLT 877 (Partly overruled) 6
AIR 1991 Mad 214 (Partly overruled) 4
AIR 1990 SC 10 : 1990 Lab IC 398 13
AIR 1983 Bom 268 (Partly overruled) 16
AIR 1977 SC 282 11, 15
AIR 1969 SC 843 13
AIR 1969 SC 1335 11
Sanjeev Sachdeva, Chetan Chopra and Saurabh Sharma, for Appellant; V. Shekhar, Sr.
Advocate, S. Ganesh, Abhigya and Ms. N. Annapoorani, with him for Respondents.
* Civ. Revn. No. 156 of 2005, D/- 24-11-2005 (Delhi).
Judgement
1. Dr. ARIJIT PASAYAT, J. :- Leave granted.
2. Challenge in this appeal is to the judgment of a learned single Judge of the Delhi High
Court dismissing the Civil Revision Petition filed by the appellant. By the impugned
order the view expressed by learned Additional District Judge deciding a preliminary
issue was upheld. Learned Additional District Judge had held that the petition for grant of
Letters of Administration of Will dated 9-9-1991 purportedly executed by late Sh.
Mohinder Singh Khandpur was not barred by limitation and was maintainable.
3. The factual position needs to be noted in a nutshell as an interesting question of law is
involved for the resolution of which factual details are not relevant.
4. Appellant's stand all through was that the testator- Mohinder Singh Khandpur has
expired on 5-10-1995 and the petition under Section 278 of the Indian Succession Act,
1925 (in short the 'Act') for grant of Letters of Administration was filed on 7-8-2002, and
therefore, the same was barred by limitation. Learned Additional District Judge after
referring to Section 232 of the Act held that the cause of action in favour of the
respondent Nos. 1 to 3 had arisen only when the Probate Petition No. 22 of 1996 filed by
Ms. Nirmal Jeet Kaur-respondent No. 5 was withdrawn on 9-8-1999 and therefore the
Petition for grant of Letters of Administration filed on 7-8-2002 was filed within three
years and therefore was within time.
5. The order was challenged before the High Court. Appellant's stand was that Article 137
of the Limitation Act, 1963 (in short 'Limitation Act') had application. It was submitted
that Article 137 of the Limitation Act has clear application and the application for grant
of letters of Administration was filed beyond the speculated time.
6. The High Court observed that Article 137 of the Limitation Act does not apply to
proceedings for grant of Probate/Letters of Administration and therefore the view of the
learned Additional District Judge was correct. Reliance was placed on a Division Bench
of the Delhi High Court in the case of S. S. Lal v. Vishnu Mittal Goel [(2004) 112 DLT
877].
7. The High Court noted that there was no dispute that Mrs. Nirmal Jeet Kaur had filed a
Probate Petition in the court of District Judge which was numbered as Probate Case No.
22 of 1996 for grant of Probate in respect of Will dated 9-9-1991 after the death of
Mohinder Singh Khandpur. The said petition was withdrawn on 9-8-1999. An application
was filed by the present respondent Nos. 1 to 3 for being transposed as applicants in the
application but the said application was dismissed with right and liberty granted to the
present respondent Nos. 1 to 3 to initiate appropriate proceedings.
8. In support of the appeal, learned counsel for the appellant submitted that the High
Court's view that Article 137 of the Limitation Act was not applicable is incorrect. It is
submitted that right to apply in terms of Article 137 accrued when there was a dispute
about genuineness of the Will. Therefore it was submitted that the view of the High Court
is clearly unsustainable.
9. On the other hand, learned counsel for the respondents submitted that the right to apply
for grant of Letters of Administrations is a continuing right and the starting point is the
happening of an event. In the instant case, after the petition for grant of probate was
withdrawn the event arose. Further while permitting withdrawal, liberty was granted to
the present respondent Nos. 1 to 3 to initiate appropriate proceedings.
10. Two questions need to be addressed in this appeal. Firstly, about the applicability of
Article 137 of the Limitation Act and secondly even if it is applicable whether the
petition was within time.
11
. In The Kerala State Electricity Board, Trivandrum v. T.P. Kunhaliumma [1976 (4) SCC
634] it was inter alia observed as follows : AIR 1977 SC 282
"18. The alteration of the division as well as the change in the collocation of words in
Article 137 of the Limitation Act, 1963 compared with Article 181 of the 1908 Limitation
Act shows that applications contemplated
@page-SC2060
under Article 137 are not applications confined to the Code of Civil Procedure. In the
1908 Limitation Act there was no division between applications in specified cases and
other applications as in the 1963 Limitation Act. The words "any other application" under
Article 137 cannot be said on the principle of ejusdem generis to be applications under
the Civil Procedure Code other than those mentioned in Part I of the third division. Any
other application under Article 137 would be petition or any application under any Act.
But it has to be an application to a court for the reason that Sections 4 and 5 of the 1963
Limitation Act speak of expiry of prescribed period when court is closed and extension of
prescribed period if applicant or the appellant satisfies the court that he had sufficient
cause for not preferring the appeal or making the application during such period.
22. The conclusion we reach is that Article 137 of the 1963 Limitation Act will apply to
any petition or application filed under any Act to a civil court. With respect we differ
from the view taken by the two-judge bench of this Court in Athani Municipal Council
case2 and hold that Article 137 of the 1963 Limitation Act is not confined to applications
contemplated by or under the Code of Civil Procedure.The petition in the present case
was to the District Judge as a court. The petition was one contemplated by the Telegraph
Act for judicial decision. The petition is an application falling within the scope of Article
137 of the 1963 Limitation Act." AIR 1969 SC 1335
12. In terms of the aforesaid judgment any application to Civil Court under the Act is
covered by Article 137. The application is made in terms of Section 264 of the Act to the
District Judge. Section 2(bb) of the Act defines the District Judge to be Judge of Principal
Civil Court.
13
. Further in S. S. Rathore v. State of M.P. [1989 (4) SCC 582] it was inter alia stated as
follows : AIR 1990 SC 10
"5. Appellant's counsel placed before us the residuary Article 113 and had referred to a
few decisions of some High Courts wherein a situation as here reliance was placed on
that article. It is unnecessary to refer to those decisions as on the authority of the
judgment of this Court in the case of Pierce Leslie and Co. Ltd. v. Violet Ouchterlony
Wapshare it must be held that Article 113 of the Act of 1963, corresponding to Article
120 of the old Act, is a general one and would apply to suits to which no other article in
the schedule applies." AIR 1969 SC 843
14. Article 137 of the Limitation Act reads as follows :

"137. Description of application : Any other application for which no period of limitation
is provided elsewhere in the Division.
Period of Limitation : Three Years
Time from which period begins to run :
When the right to apply accrues."
The crucial expression in the petition is "right to apply". In view of what has been stated
by this Court, Article 137 is clearly applicable to the petition for grant of Letters of
Administration. As rightly observed by the High Court in such proceedings the
application merely seeks recognition from the Court to perform a duty because of the
nature of the proceedings it is a continuing right. The Division Bench of the Delhi High
Court referred to several decisions. One of them was S. Krishnaswami and etc. etc. v. E.
Ramiah (AIR 1991 Madras 214). In para 17 of the said judgment it was noted as follows :
"17. In a proceeding, or in other words, in an application filed for grant of probate or
letters of administration, no right is asserted or claimed by the applicant. The applicant
only seeks recognition of the Court to perform a duty. Probate or letter of administration
issued by a competent Court is conclusive proof of the legal character throughout the
world. An assessment of the relevant provisions of the Indian Succession Act, 1925 does
not convey a meaning that by the proceedings filed for grant of probate or letters of
administration, no rights of the applicant are settled or secured in the legal sense. The
author of the testament has cast the duty with regard to the administration of his estate,
and the applicant for probate or letters of administration only seeks the permission of the
Court to perform that duty. There is only a seeking of recognition from the Court to
perform the duty. That duty is only moral and it is not legal. There is no law which
compels the applicant to file the proceedings for probate or letters of administration. With
a view to discharge the moral duty, the applicant seeks recognition from the Court to
perform the duty. It will
@page-SC2061
be legitimate to conclude that the proceedings filed for grant of probate or letters of
administration is not an action in law. Hence, it is very difficult to and it will not be in
order to construe the proceedings for grant of probate or letters of administration as
applications coming within the meaning of an 'application' under Art. 137 of the
Limitation Act, 1963."
15
. Though the nature of the petition has been rightly described by the High Court, it was
not correct in observing that the application for grant of probate or letters of
administration is not covered by Article 137 of the Limitation Act. Same is not correct in
view of what has been stated in The Kerala State Electricity Board's case (supra). AIR
1977 SC 282
16. Similarly reference was made to a decision of the Bombay High Court's case in
Vasudev Daulatram Sadarangani v Sajni Prem Lalwani (AIR 1983 Bom 268). Para 16
reads as follows :
"16. Rejecting Mr. Dalapatrai's contention, I summarise my conclusions thus :-
(a) under the Limitation Act no period is advisedly prescribed within which an
application for probate, letters of administration or succession certificate must be made;
(b) the assumption that under Article 137 the right to apply necessarily accrues on the
date of the death of the deceased, is unwarranted;
(c) such an application is for the Court's permission to perform a legal duty created by a
Will or for recognition as a testamentary trustee and is a continuous right which can be
exercised any time after the death of the deceased, as long as the right to do so survives
and the object of the trust exists or any part of the trust, if created, remains to be
executed;
(d) the right to apply would accrue when it becomes necessary to apply which may not
necessarily be within 3 years from the date of the deceased's death.
(e) delay beyond 3 years after the deceased's death would arouse suspicion and greater
the delay, greater would be the suspicion;
(f) such delay must be explained, but cannot be equated with the absolute bar of
limitation; and
(g) once execution and attestation are proved, suspicion of delay no longer operates".
17. The conclusion 'b' is not correct while the conclusion 'c' is the correct position of law.
18. In view of the factual scenario, the right to apply actually arose on 9-8-1999 when the
proceedings were withdrawn by Smt. Nirmal Jeet Kaur. Since the petition was filed
within three years, the same was within time and therefore the appeal is without merit,
deserves dismissal, which we direct but in the circumstances without any order as to
costs.
Appeal dismissed.
AIR 2008 SUPREME COURT 2061 "Mahakal Automobiles, M/s. v. Kishan Swaroop
Sharma"
Coram : 2 Dr. A. PASAYAT AND S. H. KAPADIA, JJ.
C. A. No.2598 of 2005, D/- 2 -4 -2008.
M/s. Mahakal Automobiles and Anr. v. Kishan Swaroop Sharma.
Civil P.C. (5 of 1908), O.21, R.54, R.66 - EXECUTION - SALE - ATTACHMENT -
Execution sale - Notice to judgment debtor - Necessary at every stage - Attachment of
property and issuance of sale proclamation done without notice to J. D. - Valuation of
property also not done - Sale gets vitiated.
AIR 1987 SC 2081, Rel. on. (Paras 7, 11)
1993 AIR SCW 3458 4, 9
AIR 1987 SC 2081 (Rel. on) 10
AIR 1973 SC 2593 9
Ms. Indu Malhotra, Ashok Kherkat and Kunal Tondon, for Appellants; S.K. Dubey, Sr.
Advocate, Sunil Goyal, Dr. Sumant Bhardwaj, Shamba Dutta and Praveen Chaturvedi,
for Respondent.
* M.A. No. 52 of 2004, D/- 28-4-2004 (MP).
Judgement
1. Dr. ARIJIT PASAYAT, J. :- . Challenge in this appeal is to the judgment of learned
Single Judge of the Madhya Pradesh High Court, Indore Bench.
Respondent had sold 7200 sq.ft. land with some construction on 15-11-1986 for Rs. 7.20
lacs to the JDs/appellants and was paid only Rs.1.60 lacs. He had agreed to accept the
remaining amount of Rs.5.60 lacs in 4 installments in 3 years with interest @
@page-SC2062
1.50% per month. A charge was created on this property. Respondent had later filed a
Civil Suit No. 13-A/89 (New No. 6-A/1991) for recovery of amount of Rs. 6,31,750/- by
sale of such property.
JDs/appellants in their written statements had admitted liability to pay Rs.5 lacs as
principal and Rs.65,000/- as interest and pendente lite interest @ 1% per month. They
disputed that Babulal was the partner of M/ s Mahakal Automobiles. Thus, the ADJ on
24-9-1991 gave a judgment and decree under Order XII Rule 6 of the Code, relevant
portion of which reads as follows :
"As a result application of plaintiff is partly allowed and it is hereby ordered that
defendants Nos. 1 and 3 shall pay within 6 months from today Rs.5,65,000/- and interest
@ 1% per month on Rs.5 lacs from the date of institution of suit i.e. 16-6-1989, otherwise
the plaintiff would be entitled to get a final decree for recovery of his amount by sale of
charged property. Order as to cost would be given at the time of disposal of other points.
A preliminary decree be framed accordingly. Description of charged property be also
given in preliminary decree."
A preliminary decree was accordingly drawn up. However, it was not drawn in prescribed
form No.5-A or 7-C of Schedule of Appendix-D to the Code of Civil Procedure, 1908 (in
short 'the Code'). Admittedly, no accounts were to be taken. Simple arithmetical
calculation of interest would have specified the actual amount payable.
On 28-4-1992 respondent filed an application for execution. Notices to all JDs/ appellants
under Order XXI Rule 22 of the Code were issued. On 8-6-1992, JDs/2 appeared through
Shri L.P. Bhargava, Advocate while JD/1 appeared through Shri P.K. Modi, advocate. All
JDs continued to appear regularly till 16-11-1993. In the meantime two applications; one
under Order XXI Rule 58 read with Section 151 of the Code was filed on 8-6-1992 and
the second under order XXI rule 50 read with Section 151 of the Code was filed on 2-11-
1992 by the JDs which were disposed of on 16-12-1992 and 2-11-1992 respectively. No
question as to non-executability of the decree had been raised by the JDs according to the
High Court.
On 16-10-1992 the court below directed that name of Babulal Gupta be deleted from the
execution application as there had been no decree against him. A question was also raised
suo motu by the court whether the decree in its terms being preliminary decree could be
executed as it is, or the DH-respondent be directed to obtain a final decree. The executing
court granted several adjournments for arguments on this question. On 12-2-1993 the
executing court stayed the proceedings of the execution to await the result of proceedings
under Order I Rule 10 and Section 151 of the Code before the trial court in the original
case which was also pending in the same court. On 8-3-1994 order of the High Court was
received in the original case and the execution proceedings were ordered to be restarted.
The execution proceedings as well as the civil suit were transferred from court to court
and none appeared for the JDs in the execution case, till 14-7-1997.
The High Court by the impugned order set aside the order of the trial court holding that
the I.As. filed by the judgment debtors, respondents in the appeal, before High Court
were to be dismissed. Auction sale in favour of the respondent-DH was valid and order of
its confirmation was upheld.
3. In support of the appeal learned counsel for the appellant submitted as follows :
(i) Records reveal that no Process Fee was paid by the Decree Holder as per Order dated
4-10-1997.
(ii) Attachment of Warrant was not as per Order 21 Rule 54 (1A) CPC.
(iii) No Notice was given to the appellants when execution proceedings got delinked
from the suit and got transferred from one court to another.
(iv) Attachment proceedings were carried out in the absence of the Judgment Debtor.
(v) No notice was given to the appellant under Order 21 Rules 54 and 66(2). The
procedure under Order 21 Rule 54 (1A) and 66(2) is mandatory. Hence, the objections
taken by way of IA Nos. 1, 2 and 6 should have been accepted.
(vi) The Court found total absence of drawing up of the proclamation of sale and its terms
by judicial application of mind.
(vii) It was held that the executing court did not follow the mandatory procedure as
provided under the Code.
4
. It was submitted that the High Court by the impugned order erroneously reversed the
judgment on the ground that the appellant 1992 AIR SCW 3682
@page-SC2063
could be presumed to have known of the proceeding and it is not a case of complete non
issue of service of attachment of warrant and that ratio of the decision in Deshbandhu
Gupta v. N. L. Anand @ Rajinder Singh [1994 (1) SCC 131] does not apply.
5. Learned counsel for the respondent on the other hand submitted that the High Court
has analysed the factual position in the background of legal position as set out by this
court.
6. When a property is put up for auction to satisfy a decree of the Court, it is mandatory
for the Court executing the Decree, to comply with the following stages before a property
is sold in execution of a particular decree :
(a) Attachment of the Immoveable Property :
(b) Proclamation of Sale by Public Auction;
(c) Sale by Public Auction
7. Each stage of the sale is governed by the provisions of the Code. For the purposes of
the present case, the relevant provisions are Order 21 Rule 54 and Order 21 Rule 66. At
each stage of the execution of the decree, when a property is sold, it is mandatory that
notice shall be served upon the person whose property is being sold in execution of the
decree, and any property which is sold, without notice to the person whose property is
being sold is a nullity, and all actions pursuant thereto are liable to be struck
down/quashed.
8. The admitted position that has emerged is that :
(i) There was no notice served upon the Judgment-Debtor under Order 21, Rule 54 (1-A).
(ii) There was no valuation of the property carried out;
(iii) There was no proclamation of sale as per the statutory provisions of the M.P. Civil
Court Rules, 1961 read with Order 21, Rule 66.
(iv) There was no publication of the sale.
9
. In Deshbandhu Gupta's case (supra) it was held as follows : 1993 AIR SCW 3548,
(Para 9)
"The Proclamation should include the estimate, if any, given by either judgment-debtor or
decree holder or both the parties. Service of Notice on judgment-debtor under Order 21
Rule 66 (2) unless waive by appellants or remained ex-parte, is a fundamental step in the
procedure of the Court in execution, judgment-debtor should have an opportunity to give
his estimate of the property. The estimate of the value of the property is a material fact to
enable the purchaser to know its value. It must be verify as accurately and fairly as
possible so that the intending bidders are not mislead or to prevent them from offering
inadequate price or to enable them to make a decision in offering adequate price. In
Gajadhar Prasad vs. Babu Bhakta Ratan, this Court after noticing the conflict of judicial
opinion among the High Courts, said that a review of the authorities as well as
amendments to Rule 66 (2) (e) make it abundantly clear that the Court, when stating the
estimated value of the property to be sold, must not accept the ipse dixit of one side. It is
certainly not necessary for it to state its own estimate AIR 1973 SC 2593
But, the essential facts which had a bearing on the very material question of value of the
property and which could assist the purchaser in forming his own opinion must be stated,
i.e. the value of the property, that is, after all, the whole object of Order XXI, Rule 66 (2)
(e) CPC. The Court has only to decide what are all these material particular in each case.
We think that this is an obligation imposed by Rule 66 (2) (e). In discharging it, the Court
normally state the valuation given by both the Decree Holder as well as the Judgment
Debtor where they both have valued the property, and it does not appear fantastic."
"The absence of Notice causes irremediable injury to the judgment debtor. Equally
publication of the proclamation of sale under Rule 67 and specifying the date and place
of sale of the property under Rule 66 (2) are intended so that the prospective bidders
would know the value so as to make up their mind to offer the price and to attempt that
sale of the property and to secure competitive bidders and fair price to the property sold.
Absence of Not to the Judgment Debtor disables him to offer his estimate of the value
who better know its value and to publicise on his part, canvassing and bringing the
intended bidders at the time of sale. Absence of notice prevents him to do the above and
also disables him to know fraud committed in the publication and conduct of sale or other
material irregularities
@page-SC2064
in the conduct of sale. It would be broached from yet another angle. The compulsory sale
of immovable property under Order 21 divests right, title and interest of the Judgment
debtor and confers those rights, in favour of the purchaser. It thereby deals with the rights
and disabilities either of the judgment debtor or the decree holder. A sale made, therefore,
without notice to the judgment debtor is a nullity since it divests the judgment debtor of
his right, title and interest in his property without an opportunity. The jurisdiction to sell
the property would arise in a Court only where the owner is given notice of the execution
for attachment and sale of his property. It is very salutary that a person's property cannot
be sold without his being told that it is being so sold and given an opportunity to offer his
estimate as he is the person who intimately knew the value of his property and prevailing
in the locality, exaggeration at time be possible."
10
. In M/s. Shalimar Cinema v. Bhasin Film Corporation and Another [1987(4) SCC 717] it
was held that the court has a duty to ensure that the requirement of Order 21 Rule 66 has
properly applied. It is incumbent on the court to be scrupulous in the extreme. AIR
1987 SC 2081
11. The records do not reveal that the appellant-judgment debtor was served with a notice
as required under Order 21, Rule 54(1)(A) of the Code in the appendix B Forms 23, 24
and 29. It is to be noted that the records reveal that the address of the appellant as
contained in the sale deed was different from the address at which the process server
purportedly affixed the notice on the door and in open court and at the chorah only. It has
also to be noted that under Order 21 Rule 66(2) the service of the notice has to be
personally effected on the judgment debtor. That also does not appear to have been done.
Interestingly, the valuation of the property as required to be done under the proviso to
sub-rule (2) of Rule 66 of Order 21 of the Code has not been done. The same appears to
have been valued on the spot at Rs.9,00,000/- and it was not done by the Court. There are
admittedly other non-compliance with certain requirements. We do not think it necessary
to deal with those aspects in detail in view of the order proposed to be passed. From the
records it is revealed that Rs.14,38,893/-and Rs.4,46,926/- have been deposited by the
appellant purportedly for satisfaction of the Execution Court Ujjain and Indore
respectively. The appellant shall further deposit a sum of Rs.15,00,000/- within 4 months
from today. The respondent No.1 shall be entitled to withdraw the amount deposited in
the bank with accrued interest. The appellant shall be responsible for payment of the
property tax of the property from the date of execution of sale deed i.e. 5-12-1986 till
date and the same shall be paid deposited with the concerned authority within the
aforesaid period of four months. On payment of the amounts, the title to the property
described in the registered sale deed will vest free of all encumbrances on the appellant.
12. If any property of the respondent No.1 is there in the property in question, the same
shall vest to respondent No. 1 with liberty to remove them as soon as the payment is
made.
13. The appeal is disposed of accordingly. No costs.
Order accordingly.
AIR 2008 SUPREME COURT 2064 "Udaykumar Pandharinath Jadhav v. State of
Maharashtra"
(From : Bombay)*
Udaykumar Pandharinath Jadhav alias Munna v. State of Maharashtra.
Penal Code (45 of 1860), S.304, Part I - CULPABLE HOMICIDE - MURDER -
Culpable homicide not amounting to murder - Scuffle between accused and deceased -
Deceased was not only karate expert but also armed with knife - Accused apprehended
injury at his hands - Admittedly inflicted 3 injuries to deceased - Fatal injury caused on
chest had penetrated deep into body - Accused could be said to have exceeded his right of
private defence - Conviction of accused u/S.302 IPC - Modified to one u/S.304, Part I,
IPC. (Para 4)
A Kanade, Aribam Gunseshwar Sharma, for Appellant; Chinmoy Khaladkar, Ravindra

Keshavrao Adsure, for Respondent.
* Cri. A. No.130 of 1999, D/- 1-8-2005 (Bom.)
Judgement
1. HARJIT SINGH BEDI, J. :- This appeal by way of special leave arises out of the
@page-SC2065
following facts :
2. On 22-10-1997, at about 5 or 5.30 p.m., PW1 Rajesh, the first informant along with
Santosh Supekar and Shivraj, deceased were standing and talking outside the house of
Santosh Supekar. While they were so involved, the appellant, Udaikumar, who was
known to Rajesh, accompanied by an unknown person came there and holding Rajesh
took him to the side saying that he had been summoned by one Ram Hallele. While going
away Rajesh turned around in time to see that Shivraj was being stabbed by the appellant
and while the victim was successful in warding off the first blow, the other blows stuck
home. Rajesh thereupon rushed towards the house of one Babar Saheb and narrated the
incident to him and information was conveyed by Babar Saheb to the police. The police
reached the place shortly thereafter. In the meanwhile, Rajesh had returned to the scene
and noticed that Shivraj was lying dead. ASI Jukte recorded the statement of Rajesh,
Ex.19 and on the basis, a formal FIR was registered at the Police Station. The dead body
was also despatched for the post-mortem. The ASI also recorded the statement of PW2
Sunita, sister of the deceased and PW4 Santosh. He also arrested the accused and on his
interrogation, a knife was duly recovered. During the course of the trial, the appellant put
up a defence that the injuries had been caused by him in the exercise of his right of
private defence as the deceased who was an expert in karate had first attacked him and
caused him an injury on the neck. He also stated that he had been able to disarm the
deceased and had caused some injuries to him thereafter. In the course of the hearing
before us, Mr. Kanade, the learned counsel for the appellant has first and foremost
contended that the prosecution story was false and that the appellant had been roped in
for some unknown reasons. We have gone through the entire evidence and are of the
opinion that this argument has no merit as the case against the accused is proved by the
evidence of the eye-witnesses whose presence cannot be doubted and in addition the fact
that the accused had caused the injuries, has also been admitted though he has pleaded the
right of private defence. Mr. Kanade then fell back on the alternative argument that he
had caused the injuries in his right of private defence and therefore no case of murder
could be spelt out.
3. Mr. Kanade's argument with regard to the right of private defence flows from the
cross-examination of PW4 Santosh, an eyewitness who deposed as under :
"It is true that the deceased was a teacher of Karate. It is true that the knife was taken out
by the deceased and there was scuffle between the accused and deceased. It is true that
the deceased was held by his collar by the accused. It is true that the knife had fallen from
the hands of the deceased in the scuffle and the same was taken by the, accused and the
deceased was stabbed with it. It is true that first blow was inflicted on the thigh, second
was on hand and the third one was on the chest."
4. It is significant that despite the fact that this statement had been made by Santosh in his
cross-examination, the Public Prosecutor did not challenge the correctness thereof in any
manner. In other words, it is clear that the prosecution itself has accepted this statement
as being true. It is well settled that in order to make out a case of private defence, the
accused need not plead it in specific terms (as it would, indeed, be a very courageous
accused who would come out and take the risk of admitting his presence) but if the
circumstances justify an inference with regard to such a right, the Court must examine
that possibility as well. In this background, we are of the opinion that the plea of private
defence is available to the appellant though it has not been specifically raised by him. The
learned Government counsel has, however, pointed out that three injuries had been
caused on the person of the deceased and as such the complete exoneration on the plea of
right of private defence was not available to the appellant. We observe from the evidence
that the deceased was not only a karate expert but also armed with a knife and it is not
surprising that the appellant apprehended injury at his hands. We are therefore of the
opinion that the best that can be said for the prosecution at this stage is that the appellant
had exceeded the right of private defence. We therefore partly allow the appeal, acquit the
appellant of the charge under section 302 of the IPC and modify his conviction to one
under Section 304 (1) of the IPC in the background that the fatal injury caused on the
chest had penetrated deep into the body. We also impose a sentence of 7 years rigorous
imprisonment on the appellant; the other part of the sentence to remain as it is.
@page-SC2066
AIR 2008 SUPREME COURT 2066 "S. Rama Krishna v. S. Rami Reddy"
-2008.
S. Rama Krishna v. S. Rami Reddy (deceased by L.Rs.) and Ors.
(A) Criminal P.C. (2 of 1974), S.256, S.378 - SUMMONS CASE - APPEARANCE -
COMPLAINT - DISHONOUR OF CHEQUE - Acquittal on non-appearance of
complainant - Complaint of dishonour of cheque - Death of complainant - His heirs not
pressing application for substitution - Remaining absent continuously for 15 dates of
hearing - Accused on other hand attended Court on not less than 20 dates after death of
original complainant - Order of acquittal, in circumstances, not liable to be interfered
with.
Crl. Appeal No. 1149 of 2006, D/-30-08-2006 (A.P.), Reversed. (Paras 7, 8, 10)
(B) Criminal P.C. (2 of 1974), S.378 - APPEAL - Appeal against acquittal - Scope - Two
views possible - Acquittal, not to be interfered with. (Paras 11, 12)
(C) Constitution of India, Art.26 - Criminal P.C. (2 of 1974), S.1, S.256 - FREEDOM OF
RELIGION - SUMMONS CASE - APPEARANCE - SPEEDY TRIAL - Speedy trial -
Fundamental right of accused - Complainant cannot allow case to remain pending for
indefinite period. (Paras 10, 12)
(D) Criminal P.C. (2 of 1974), S.378, S.256 - APPEAL - APPEARANCE - SUMMONS
CASE - Appeal - Against acquittal for non-appearance of complainant - Interference with
- Ground, lis between parties should be decided on merits rather than on technicalities -
Improper. (Para 12)
Guntur Prabhakar, for Appellant; Mrs. Bharathi Reddy, T.V. Ratnam, for Respondents.
* Cri. Appeal No. 1149 of 2006, D/- 30-8-2006 (A.P.)
Judgement
1. S. B. SINHA, J. :- Leave granted.
2. Appellant issued two cheques for a sum of Rs. 5,00,000/- (Rupees Five lakhs) each in
favour of the original complainant - i.e. S. Rami Reddy (since deceased) on or about 9-1-
2001 and 10-1-2001.
The said cheques were deposited in a bank for collection on or about 25-2-2001. They
were dishonoured.
Rami Reddy filed a complaint petition in the Court of Additional Judicial Magistrate First
Class, Kurnool purported to be under Section 138 read with Section 142 of the
Negotiable Instruments Act, 1881 (for short 'the Act') on 6-6-2001. It was registered as
C.C. No. 368 of 2001. Rami Reddy expired on 28-10-2003. Respondents herein filed an
application for substitution of their names in place of the said Rami Reddy on 22-12-
2003. Appellant filed an objection thereto. No order was passed on the said application.
The counsel appearing on behalf of the complainant started representing the proposed
heirs of the said Rami Reddy. It appears that on or about 18.4.2005 till 23-1-2006, i.e., on
14 dates nobody represented the complainant.
3. On 23-1-2006, noticing that the respondents had not been attending the court for a long
time, the appellant was acquitted by the learned Magistrate in purported exercise of his
jurisdiction under Section 256 of the Code of Criminal Procedure. An appeal was
preferred thereagainst before the High Court of Andhra Pradesh questioning the validity
of the order dated 23-1-2006.
By reason of the impugned judgment, a learned single Judge of the High Court set aside
the said judgment of acquittal holding :
"A perusal of the docket order passed by the Court below, coupled with the extract of
diary maintained by the Court below, show that the matter has undergone several
adjournments due to the absence of the appellants only, and ultimately, on 23-1-2006 the
trial court passed the impugned order. From this it is clear that the appellants are not
interested in getting the matter prosecuted. However, as this Court has consistently taken
the view that any lis between the parties shall be decided on merits rather than on
technicalities, this Court is of the view that the appellants may be given one more
opportunity to get the matter prosecuted."
Appellant is, thus, before us.
4. Mr. Guntur Prabhakar, learned counsel appearing on behalf of the appellant, would
submit that the High Court had committed a manifest error in passing the impugned
judgment insofar as it failed to take into consideration that since the complainant
remained absent for a long time, there
@page-SC2067
was no justification for setting aside the order of acquittal passed by the learned
Magistrate.
5. The learned counsel appearing on behalf of the respondents, however, supported the
impugned judgment.
6. Admittedly, the respondents themselves did not seriously press their applications for
their substitution in place of the original complainant.
7. Section 256 of the Code of Criminal Procedure empowers a Magistrate to pass an order
of acquittal on non-appearance or death of the complainant.
The complaint petition was filed in the year 2001. Rami Reddy died in 2003. A large
number of dates were fixed for hearing of the case. Although, on some dates, the
respondents were either present in court in person or were represented by their Advocate,
but as noticed hereinbefore, continuously for about 15 dates fixed for hearing, they
remained absent.
The ingredients of Section 256(1) are : (i) that summons must have been issued on a
complaint, (ii) the Magistrate should be of the opinion that for some reasons, it is not
proper to adjourn the hearing of the case to some other date; and (iii) the date on which
the order under Section 256(1) can be passed is the day appointed for appearance of the
accused or any day subsequent thereto, to which the hearing of the case has been
adjourned.
It is not a case where the proviso appended to sub-section (1) of Section 256 of the Code
was applicable.
8. The matter remained pending for more than five years. It was obligatory on the part of
the respondents to press their application for substitution. They did not file attendance of
their witnesses. The case was fixed for hearing.
9. The learned Magistrate in terms of subsection (1) of Section 256 exercises wide
jurisdiction. Although an order of acquittal is of immense significance, there cannot be
any doubt or dispute whatsoever that the discretion in this case had been properly
exercised by the learned Magistrate.
10. The provisions of Section 256(1) mandate the Magistrate to acquit the accused unless
for some reason he thinks it proper to adjourn the hearing of the case. If an exceptional
course is to be adopted, it must be spelt out the discretion conferred upon the learned
Magistrate, however, must be exercised with great care and caution. The conduct of the
complainant for the said purpose is of immense significance. He cannot allow a case to
remain pending for an indefinite period. Appellant had been attending the court for a long
time, except on some dates where when remained absent or was otherwise represented by
his Advocate. He had to remain present in court. He attended the court on not less than 20
occasions after the death of the original complainant. If in the aforementioned situation,
the learned Magistrate exercised his discretionary jurisdiction, the same, in our opinion,
should not have been ordinarily interfered with.
11. The High Court was exercising its jurisdiction under sub-section (4) of Section 378 of
the Code of Criminal Procedure. The appeal preferred by the respondents was against a
judgment of acquittal. The High Court should have, therefore, exercised its jurisdiction
keeping in view the limited role it had to play in the matter.
12. The High Court itself had come to the finding that the respondents were not interested
in getting the matter prosecuted. Despite the same, it allowed their appeal, opining that
any lis between the parties should be decided on merits rather than on technicalities. On
what basis such a statement of law was made is not known. No precedent was cited; no
reason has been assigned.
The High Court failed to take into consideration the fact that it was dealing with an order
of acquittal and, thus, the principle of law which was required to be applied was that, if
two views are possible, a judgment of acquittal should not ordinarily be interfered with.
There exists a distinction between a civil case and a criminal case. Speedy trial is a
fundamental right of an accused. The orders passed by the competent court of law as also
the provisions of Code of Criminal Procedure must be construed having regard to the
Constitutional scheme and the legal principles in mind.
13. The High Court, in our opinion, therefore, misdirected itself in passing the impugned
judgment. It can therefore not be sustained. We set aside the order of the High Court
accordingly. The Appeal is allowed.
Appeal allowed.
@page-SC2068
AIR 2008 SUPREME COURT 2068 "Mohinder Kaur v. State of Punjab"
-2008
Mohinder Kaur v. State of Punjab.
Criminal P.C. (2 of 1974), S.438 - BAIL - ARREST - HIGH COURT - Protection against
arrest - Grant of - Complaint by daughter-in-law alleging harassment by appellant,
mother-in-law for bringing insufficient dowry - Appellant seeking protection u/S.438
against arrest - Appellant was Police Constable who retired about decade back -
Conclusion by High Court that appellant recently retired as Police Officer and
influencing investigation - Was without foundation - Other directions for recovery of
dowry articles etc., from appellant cannot be given while dealing with application
u/S.438 Cr. P.C. filed by her - Direction for seizing appellant's passport also cannot be
given in petition u/S.438 Cr. P.C. filed by her.
Crl. Misc. No. 47960-M of 2007, D/-15-11-2007 (P and H), Reversed. (Para 7)
2005 AIR SCW 1013 : AIR 2005 SC 1057 : 2005 Cri LJ 1706 (Foll) 9, 10
Manmohan Singh, Jasbir Singh, Malik, Ms. Shilpi, Rajiv Joshi and S.K. Sabharwal, for
Appellant; Ms. Madhu Tewatia, A.A.G., Kuldip Singh, for Respondent.
* Cri. Misc. No. 47960-M of 2007, D/- 15-11-2007 (P and H)
Judgement
2. Challenge in this appeal is to the order passed by a learned Single Judge of the Punjab
and Haryana High Court dismissing the petition filed in terms of Section 438 of the Code
of Criminal Procedure, 1973 (in short the 'Cr.P.C.').
3. The appellant had sought for protection in terms of aforesaid provision in FIR No. 105
dated 15-8-2007 registered at the Police Station Bhogpur, District Jalandhar. The
complainant had alleged that she was married to Ranjit Singh, son of the appellant on 23-
10-2002. The said Ranjeet Singh went abroad in February, 2002 and came back after
about one year. Alleging that the complainant was harassing her for brining insufficient
dowry, the complaint was lodged in the police station. The appellant filed a petition under
Section 438, Cr.P.C. for protection. The High Court observed that ordinarily in such cases
the court is inclined to grant protection against arrest to family members of husband of
the complainant, however the facts of the present case were different. It was stated that
the appellant herself was a retired police officer who was serving as an inspector of
Punjab police. Her son was residing abroad and she had transferred/bequeathed her
property in favour of her grand son who is born to another son who is settled abroad. No
part of the immovable property has been given to grand daughter born to the
complainant. The High Court, therefore, concluded that the complainant and her minor
daughter were left without any source of livelihood. It was noted that serious allegations
were made against the appellant. The hostile treatment meted out to the grand daughter
speaks loudly that the allegations levelled carry prima facie substance. After making
these observations, the High Court also accepted the contention that the appellant being a
recently retired police officer, the local police were hobnobbing with her and the
investigations were not being done properly. The High Court therefore, dismissed the
petition. But at the same time it directed the Senior Superintendent of Police, Jalandhar to
depute a fairly senior police officer to monitor the ongoing investigation and take all
lawful measures to interrogate the appellant and recover the dowry articles. Her passport
was also seized and she was not to be permitted to go abroad without the permission of
the Court.
4. Learned counsel for the appellant submitted that the conclusions of the High Court are
clearly without any foundation. The appellant was serving neither as an inspector nor was
she retired recently. She was serving as a constable and had retired nearly 10 years back
i.e. in May, 1999. Further it is inconceivable that a retired constable who had retired 10
years back would have influence over the police officials to render the investigation
ineffective. It is pointed out after death of her husband, she was inducted as a Constable
on compassionate grounds.
5. The direction for recovering dowry articles clearly means as if certain dowry articles
were there. It is therefore submitted that all the directions are insupportable.
6. Learned counsel for the State on the other hand submitted that looking into the gravity
of the accusation order has been passed.
@page-SC2069
7. As rightly submitted by learned counsel for the appellant the High Court seems to have
completely acted on materials which do not support the conclusions. By way of
illustration, it can be said that the appellant was not serving as an inspector but was a
constable who had retired about a decade back. Therefore the conclusion of the High
Court that she was in a position to make the investigation ineffective does not have any
foundation. The other directions given like recovery of dowry articles etc. need not have
been given while dealing with an application under Section 438 Cr.P.C. filed by her. The
directions for seizing the appellant's passport also could not have been given a petition
under Section 438 Cr.P.C. filed by her.
8. The directions regarding deputation of a senior police officer to monitor the
investigation and/or recover the dowry articles to seize her passport stand deleted.
9
. The parameters for exercising of power under Section 438 Cr.P.C. has been highlighted
by this Court in Adri Dharan Das v. State of W.B. (2005 (4) SCC 303). 2005 AIR
SCW 1013
10. Keeping in view the parameters highlighted in Adri Dharan Das's case (supra), we
direct in case the appellant surrenders before the concerned court and moves for bail the
application shall be disposed of expeditiously preferably on the date it is filed. We make
it clear that we have not expressed any opinion on the acceptability of the prayer for bail
to be made in terms of the aforesaid direction.
Order accordingly.
AIR 2008 SUPREME COURT 2069 "Kancherla Lakshminarayana v. Mattaparthi
Shyamala"
(From : Madras)*
Civil Appeal No.2001 of 2008 (arising out of SLP (C) No.9102 of 2007), D/- 14 -3 -2008.
Kancherla Lakshminarayana v. Mattaparthi Shyamala and Ors.
(A) Civil P.C. (5 of 1908), O.21, R.58 - ATTACHMENT - AUCTION SALE - WORDS
AND PHRASES - Objection to attachment of property - Tenable even after auction sale -
Word 'sold' in R.58 Proviso Cl.(a) - Means complete confirmed auction sale.
C.M.A. No. 3245 of 2004, D/-16-03-2007 (Mad), Reversed.
AIR 1983 Pat 303, Overuled.
AIR 1962 Pat 403, AIR 1937 Cal 390, AIR 1924 Pat 76, Held not good law.
Mere holding of auction sale does not bar the raising of objection to attachment of
property. The word "sold" in Clause (a) of the proviso to Rule 58 has to be read meaning
thereby a complete sale including the confirmation of the auction. In considering the
"time factor" of challenging the sale, the "locus standi factor" on account of any prior
interest of the objector in the suit property has also to be considered. The attachment
cannot be free from the prior obligations. The necessary sequatur is that even after the
factum of sale the objection would still lie before the sale is made absolute.
AIR 1983 Pat 303, Overuled. AIR 1962 Pat 403, AIR 1937 Cal 390, AIR 1924 Pat 76,
Held not good law. (Paras 10, 12)
Even if under Section 65, C. P. C., the title "after the sale been made absolute under Rule
92" relates back to the date of sale, it would still be subject to the earlier rights of the
objector and his interest in the suit property. Therefore, Section 65 would not, by itself,
provide any guidance regarding the interpretation of the term "sold" in the said proviso.
(Para 12)
The objector in the present case cannot be said to have no locus standi to raise an
objection to the sale for the simple reason that he had earlier filed a suit for specific
performance on the basis of an Agreement of Sale. The factum of the Agreement of Sale
was not denied. Under such circumstances there was a cloud on the property and a person
like appellant-objector who had the obligation qua the property in the shape of an
Agreement of Sale could not be held to be an utter outsider having no locus standi to take
the objections.
C. M. A. No. 3245 of 2004, D/-16-3-2007 (Mad), Reversed.(Para 14)
(B) Civil P.C. (5 of 1908), O.21, R.92 - AUCTION SALE - AGREEMENT - Auction sale
- Confirmation - Agreement holder can object to confirmation of sale. (Para 16)
@page-SC2070
1993 AIR SCW 3458 (Rel. on) 15
(1990) 3 SCC 291 (Ref.) 9, 12, 14
AIR 1983 AP 335 9, 10, 11, 12
AIR 1983 Patna 303 (Overruled) 11
AIR 1973 Cal 432 (Rel. on) 14
AIR 1962 Patna 403 (Held not good law.) 13
AIR 1952 Trav Co 467 9
AIR 1951 Nag 194 12
AIR 1943 Bom 145 9
AIR 1941 Bom 198 9
AIR 1941 Pat 405 12
AIR 1937 Cal 390 (Held not good law.) 13
AIR 1931 Mad 782 (Approved) 13
AIR 1924 Patna 76 (Held not good law) 11, 13
(1907) ILR 35 Cal 202 (P.C.) 12
P.S. Narasimha, V. Pattabhiram, L. Roshmani, Ms. Mandakini Sharma and S.S. Dharma
Teja, for Appellant; K.V. Viswanathan, A. Ramesh, K. Rajeev, R. Chandrachud, G.
Madhav, T.N. Rao and Mrs. K. Sarda Devi, for Respondents.
* C.M.A. No. 3245 of 2004, D/- 16-3-2007 (Mad.)
Judgement
2. The dismissal judgment of the Madras High Court in Civil Miscellaneous Appeal
under Order 43 Rule 1 of the Code of Civil Procedure, filed by the appellant herein, is in
challenge before us. This appeal was filed against the order dated 9-9-2004 passed by
Subordinate Judge, Yanam in Execution Application No.9 of 2003 in Execution Petition
No. 15 of 2002. The said Execution Application was filed under Order XXI Rule 58
whereby the appellant sought to make a prayer for raising the attachment on the suit
property or in the alternative to declare the sale being subject to the claim in Original Suit
being OS No.31 of 2000. The following facts will highlight the controversy.
3. Second Respondent herein, namely, Mattaparthi Satyam owned 14 acres of land. He
put up the said land for sale and the present appellant having offered highest market value
of Rs. 29,000/- per acre, executed an Agreement of Sale for 14 acres in favour of the
appellant on 20th March, 1993 after having received a sum of Rs. 1 lakh from the
appellant. The appellant thereafter paid Rs. 2 lakhs on 27-3-1993 and Rs. 20,000/-on 16-
4-1993 which payments were endorsed on the reverse side of the Agreement by the
Second Respondent. However, the Second Respondent failed to execute the registered
Sale Deed in spite of several requests and, therefore, the present appellant filed Original
Suit No.605 of 1996 before the Subordinate Judge, Pondicherry for specific performance
of the Sale Agreement which suit was later on transferred to Sub Court, Yanam and was
renumbered as Original Suit No.31 of 2000. The said suit is still pending.
4. In the year 2000, the first respondent, who is none else but the wife of the second
respondent filed a maintenance case being OP No. 34 of 2000 before the Family Court,
Yanam. She filed one IA No. 582 of 2000 seeking an injunction restraining the second
respondent from alienating the schedule properties and this application was granted on
17.2.2000. This petition was also transferred to the Sub Court Yanam and was re-
numbered as OS No.63 of 2000. Thereafter this suit was decreed on 22-1-2002.
Execution Petition No. 10 of 2002 came to be filed on the basis of the decree passed in
OS No.63 of 2000 for recovery of arrears of maintenance payable by the second
respondent to the first respondent. The second respondent did not pay the arrears of
maintenance but instead filed IA No.4 of 2003 in OS No.63 of 2000 before Sub Court,
Yanam to set aside the above decree dated 22-1-2002. However, even this application was
dismissed on merits on 27-2-2003. The first respondent thereafter filed E.P. No. 15 of
2002 before Sub Court, Yanam for execution of the decree dated 22.1.2002 passed in OS
No.63 of 2000. A public auction was ordered in that Execution Application and the same
was conducted on 2-7-2003 in which public auction the third respondent herein
purchased the said suit property. The present appellant, therefore, filed a petition in E.P.
No. 15 of 2002 in OS No.63 of 2000 under the provisions of Order XXI Rule 58, raising
objections to the said auction and to declare that the sale is subject to the appellant's claim
in OS No.31 of 2000 which was pending on the file of Sub Court, Yanam. This
application was numbered as Execution Application No.9 of 2003. The said application
came to be dismissed by the Subordinate Court. The appellant herein filed an appeal
against the said order of dismissal dated 9-9-2004. However, by its order dated 16-3-
2007, the High Court of Madras dismissed CMA 3254 of 2004 holding that the
application was not maintainable. The logic of the Madras High Court as well as the Trial
Court seems to be that once the sale takes place during the
@page-SC2071
execution, then the objection raised would be of no consequence and the application will
be untenable. The High Court has thus considered the question of the stage at which the
objection could be raised and has dealt with that such objection would not be tenable on
the backdrop of the language of Clause (a) of proviso to Order XXI Rule 58. The stress is
thus on the stage at which the objection could be raised (or the time when the objection is
raised). These concurrent orders are now in challenge before us.
5. Shri Narasimha, learned counsel appearing on behalf of the appellant took us through
the orders and contended that the view expressed by both the courts below to the effect
that the Execution Application is not tenable is patently incorrect. As against this Shri
Vishwanathan, learned counsel appearing on behalf of the first respondent and Shri
Chandrachud, learned counsel appearing on behalf of the third respondent supported the
order contending that in the wake of the completed auction under Order XXI Rule 58, the
High Court and the Trial Court were justified in holding that the appellant's claim was not
tenable at all. It is, therefore, to be seen as to whether the appellant's claim is tenable at
all.
6. Learned counsel for the appellant took us through both the orders and firstly pointed
out that the suit by the appellant being OS No.605/96 before Sub Court, Pondicherry
which was later on transferred to Sub Court, Yanam and re-numbered as OS No.31 of
2000 was prior in point of time. From that suit it is clear that the first respondent was the
wife of the second respondent. Though she fully knew about the pendency of the
aforementioned suit, not only filed another suit but brought a decree. According to the
appellant it is obvious that the said decree was a collusive one. As if this was not
sufficient, she also attached the very same property which was the subject matter of OS
No.31 of 2000 and got it sold in a public auction on 2-7-2003. It was pointed out that the
sale was not confirmed. Learned counsel, therefore, pointed out that the appellant not
only had a substantial obligation regarding the property but was rightly entitled to object
to the auction sale. Thus, the learned counsel urges that even after the sale the objection
to the attachment and the sale could be raised and more particularly because the present
appellant would be necessarily a person having locus standing due to obligation regarding
the property. According to the learned counsel these two factors, namely, the time of
taking the objection and the locus of the objector have to be considered and while the
courts below considered only the "time factor" or the "stage factor", the court did not
consider the "locus factor".
7. As against this a contention was raised by the learned counsel Shri Vishwanathan that
the wife, respondent No. 1 herein, had filed OP No.34 of 2000 in Family Court in her
individual right as a wife. She had also secured the order of injunction restraining the
second respondent from alienating the schedule properties as she was interested in the
property being preserved so that she could recover her maintenance out of that property
and there was nothing wrong in it. It is pointed out that the injunction was granted and
though there was a publication about the same, the appellant never raised any objection to
it. The said OP which was renumbered as OS 63 of 2000 came to be ultimately decreed
and there was nothing wrong on the part of the first respondent in filing the Execution
Petition No. 10 of 2000 for recovery of arrears of maintenance and when the second
respondent did not comply with the orders, she was driven to file Execution Petition No.
15 of 2002 for the sale of the schedule property by public auction to recover the arrears of
maintenance. He further claimed that the second respondent had never brought to her
knowledge about OS No.31 of 2000. Learned counsel, therefore, claimed that there was
no collusion between the first and the second respondent and her rights of maintenance
are independent of any said suit which had arisen 18 years ago when her marriage was
solemnized with the second respondent. Our attention was drawn even to the counter
filed by the second respondent before the Trial Court where the second respondent had
denied the Agreement. It was alleged by him that the Agreement set up by the appellant
was only by way of security as the appellant had advanced a sum of Rs. 1 lakh to be paid
to Mattaparthi Syamala and others on behalf of the second respondent. It was pointed out
that the second respondent had flatly denied any such Agreement to Sell. Learned
counsel, therefore, urged that the courts below were right in holding the application, filed
by the appellant, to be not tenable particularly
@page-SC2072
in view of the completed auction under Order XXI Rule 58.
8. Even the learned counsel appearing on behalf of third respondent urged that he was a
bona fide purchaser of the auction held on 2-7-2003 and he was the highest bidder and
that he did not know about OS No. 31 of 2000 filed by the appellant. It was his
contention that in fact the appellant, in collusion with the second respondent, had filed an
objection to the Execution. He pointed out that the third respondent had deposited the
entire bid amount into the court and only the confirmation of sale had remained to be
done.
9. Shri Narasimha, learned counsel appearing on behalf of the appellant invited our
attention to the language of Order XXI Rule 58 CPC which is as under :
"58. Adjudication of claims to, or objections to attachment of property :- (1) Where any
claim is preferred to, or any objection is made to the attachment of, any property attached
in execution of a decree on the ground that such property is not liable to such attachment,
the Court shall proceed to adjudicate upon the claim or objection in accordance with the
provisions herein contained :
Provided that no such claim or objection shall be entertained -
(a) where, before the claim is preferred or objection is made, the property attached has
already been sold; or
(b) where the court considers that the claim or objection was designedly or unnecessarily
delayed.
(2) xxxxxx
(3) xxxxxx
(4) xxxxxx
(5) xxxxxx"
It is pointed by the learned counsel from the language of the clause (a) of proviso to Rule
58(1) that where any objections are taken to the attachment on the ground that such
property is not liable to attachment, the court has to proceed to adjudicate upon the claim
or objections in accordance with the Rule. Learned counsel further argues that there is a
rider to this Rule in the shape of a proviso and it is suggested that such claim or objection
need not be entertained where firstly the property attached has already been "sold".
Learned counsel points out that merely because of the auction of the suit property, it
cannot be said that the said property is sold, thereby leaving no right in or opportunity
with the objector to object to the attachment. Learned counsel invited our attention to the
judgment of the Andhra Pradesh High Court in M/s. Magunta Mining Co. v. M.
Kondaramireddy and Another [AIR (1983) A. P. 335] where the similar situation had
arisen on the basis of an application made by the appellant under Order XXI Rule 58
CPC. The objector was none else but the son of the Judgment-Debtor whose property was
auctioned. The objection was that since there was a prior lease in respect of the said
property and since in pursuance of that lease the objector-appellant had been in
possession of the same and, therefore, the attachment was not valid and has to be vacated.
An objection was also raised that the properties which were attached were already sold
and, therefore, the objection to the attachment and the appeal had become infructuous.
The Court, therefore, dealt with the effect of the court sale conducted by the lower court.
It was an admitted position that before the said order of High Court reached the sale was
already completed in respect of all the items where the Decree-holder himself purchased
the properties. It is also seen from the facts that there the sale was not confirmed. The
Division Bench, speaking through Hon'ble Jagannadha Rao, J. (as His Lordship then was)
observed in para 15 :
"Whenever a claim is preferred under O. 21 R. 58 CPC against attachment of immovable
properties, the fact that the properties are sold or the sale confirmed will not deprive the
court of its jurisdiction to adjudicate on the claim. The inquiry into the claim can be
proceeded with by the trial court or the appellate court (under the amended Code) and in
the event of the claim being allowed, the sale and the confirmation of sale shall to that
extent be treated as a nullity and of no effect, as the judgment-debtor had no title which
could pay to the court auction-purchaser."
Relying heavily on this case the learned counsel pointed out that there is no contrary
decision of this Court on this issue and, therefore, this decision has to be held as good
law. In support of the argument that the appellant had the locus standi, the learned
counsel pointed out that it is only during the pendency of the suit by the appellant which
was based on the prior Agreement of Sale in respect of the suit property
@page-SC2073
that the subsequent suit for maintenance was filed by the wife and the decree obtained
and, therefore, obviously the judgment-debtor, the second respondent could not have
passed a clean title during the auction sale and it would have to be held that he could not
pass better rights that he himself had. Learned counsel urged that the rights which were
passed on to the auction purchaser in the court sale were subject to the Agreement of
Sale. In support of this proposition the learned counsel relied on the reported decision in
Vannarakkal Kallalathil Sreedharan v. Chandramaath Balakrishnan and Anr. [(1990) 3
SCC 291] where the situation was more or the less same. This Court in para 9 observed :
"........The agreement for sale indeed creates an obligation attached to the ownership of
property and since the attaching creditor is entitled to attach only the right, title and
interest of the judgment-debtor, the attachment cannot be free from the obligations
incurred under the contract for sale"
This Court had held the decisions by Bombay High Court in Rango Ramachandra
Kulkarni v. Gurlingappa Chinnappa Muthal [AIR 1941 Bom. 198] and Yeshvant Shanker
Dunakhe v. Pyaraji Nurji Tamboli [AIR 1943 Bom 145] and the High Court of
Travancore-Cochin in Kochuponchi Varughese v. Ouseph Lonan [AIR 1952 TC 467], to
the same effect to be the good law.
10
. On the basis of these two judgments, the learned counsel urged that the objection
application in the Execution Petition could not have been, therefore, thrown away by the
Trial Court and the High Court as not being maintainable. Considering the law laid down
in Magunta Mining's case(supra) it must be said that mere holding of the auction does not
bar the objections thereto. It is our considered opinion that in this case the sale was not
confirmed and that made substantial difference. The word "sold" in Clause (a) of the
proviso to Rule 58 has to be read meaning thereby a complete sale including the
confirmation of the auction. That not having taken place, it cannot be said that the
objection by the appellant was not ill-founded or untenable as has been held by the High
Court and the Trial Court. AIR 1983 AP 335
11. However, a contrary view has been taken by the Patna High Court in a reported
decision in Kewal Singh v. Umesh Mishra [AIR 1983 Patna 303] where the Division
Bench of the Patna High Court held that the term "sold" used in proviso (a) means the
stage when the property is auctioned by the court and the bid is accepted by the court.
The term does not refer to the stage of confirmation of the sale when it is made absolute
under Rule 92. The learned Judge who was considering the interpretation of the proviso,
after clearing some factual grounds, discussed the issue in para 7 of the judgment. In
coming to the conclusion that the word "sold" would include the sale under Rule 58, even
when it is not made absolute under Rule 92, the learned Judge has taken into account the
term "sold", "sale set aside" and "sale confirmed and made absolute". The learned Judge
held that these three terms referred to three stages in relation to the court sale. While Rule
58 provides for the objection made before the property is "sold", Rule 64 and onwards
provide for the proclamation of sale. The learned Judge then took note of two headings,
one with respect to the sale of movable property and the other Rule 82 with respect to the
sale of immovable property. The learned Judge then proceeded to take note of Rules 89,
90 and 91. It was noted by the learned Judge that the implication of the term "the sale
having been made absolute" has been specifically provided in Section 65 of the Code
which provided that where the immovable property is sold in execution of a decree and
such sale has become absolute, the property shall be deemed to have been vested in the
purchaser from the time when the property is sold and not from the time when the sale
becomes absolute. The learned Judge then observed as under :
"Thus, this rule is a pointer to the significance that though the sale is complete when it is
ultimately made absolute but title to the purchaser vests from the date of the sale. It may
be noticed, at this place, that there are uses of the two terms "property sold" and "sale
becomes absolute" in this S. 65 and the two terms used in the same section clearly
suggests the two stages as to the sale having been held and the sale subsequently made
absolute. But what I have to determine, in the present case is to find out the meaning of
the term 'the property already sold' in the proviso to R. 58 mentioned above. That term
speaks of the 'sale held' and not 'sale having been made absolute' and as the distinction
may be marked the
@page-SC2074
former term used in S. 58 implies that that refers to the stage when the "sale was held"
and not the stage which would come subsequently when the "sale is made absolute". I am
supported of this view by two Bench decisions of this Court and a Bench decision of the
Calcutta High Court....."
The learned Judge then made reference to the decision in Most. Puhupdei Kuer v.
Ramcharitar Barhi [AIR 1924 Pat. 76] and proceeded to hold ultimately that :
"I am of the view that the term 'property has been already sold' used in the proviso to Cl.
(1) of R.58 refers to the stage when the sale had taken place and does not refer to the
stage when the sale becomes absolute."
Learned counsel for the respondent very heavily relied on this judgment and pointed out
that the decision in M/s. Magunta Mining Co's case (supra) the court had not considered
the impact of Section 65 CPC. It will, therefore, be our task to decide the correctness or
otherwise of both the judgments. AIR 1983 AP 335
12
. Reverting back to the judgment of Andhra Pradesh High Court in M/s.Magunta Mining
Co's case, it will be seen that in para 14 of its judgment, the learned Judge considered the
impact of Order XXI Rule 59. The learned Judge held : AIR 1983 AP 335, Para 14
The provisions of O. 21 R.59 CPC show that where before a claim is preferred or
objection made, and the property attached had already been advertised for sale, the court
may, if the property is immovable, make an order, that pending the adjudication of the
claim or objection the property shall not be sold, or that pending such adjudication, the
properly may be sold but the sale shall not be confirmed and any such order may be made
subject to such terms and conditions as to security or otherwise as the court thinks fit.
This provision therefore provides that pending adjudication of a claim in respect of
immovable property the court may proceed with the sale but stay the confirmation.
Obviously this has been made with a view to expedite the sale proceedings so that in the
event of the claim being rejected, the further proceedings can go on expeditiously. But it
is clear that as long as the sale is not confirmed the status quo ante can be restored in case
the claim is allowed. It has been held that once the claim petition is allowed the sale will
be treated as void because the interest of the judgment-debtor that was sold did not in fact
belong to him and the Court auction-purchaser would not get any title to the property as
the judgment-debtor had no interest therein and because the claimant continues to retain
his interest in those properties vide Bibi Umatul Rasul v. Lakho Kuer [AIR (1941) Patna
405]. To the same effect is the decision in Madholal v. Gajrabi [AIR (1951) Nag. 194]."
"The term of O.21 R.63 are imperative and they declare that any order passed by the
executing Court is subject to the result of such a suit. In Phul Kumari v. Ghanshyam
Misra, (1907) ILR 35 Cal 202 : (35 Ind App 22 (PC) their Lordships of the Privy Council
pointed out that the object of a suit under S.283, Civil P.C. of 1882 which corresponds to
O. 21 R. 63 of the present Code is in effect to set aside a summary decision. When the
claimant succeeds in getting a decree in his favour declaring his title to the property
attached and that the property is not liable for attachment and sale in execution of a
particular decree the executing court's power to sell the property in that execution
proceedings must cease. The claimant's success in a suit under O. 21 R. 63 ousts the
jurisdiction of the executing court. If that is the result, the sale must be pronounced to be
a nullity and consequently not capable of being confirmed under O. 21, R. 92, Civil P.C."
These observations will show that the Andhra Pradesh High Court not only considered
the language of Rule 59 and the impact thereof as clearly displayed but also went on to
consider the fact of the prior obligation regarding the objector in the property and the fact
that even if the sale is effected under Rule 58, it cannot obliterate the claims of the
objectors which were created prior to the sale. This very situation with regard to impact
of the prior interest in the shape of Agreement of Sale was taken into consideration in the
subsequent judgment of Vannarakkal Kallalthil Sreedharan (cited supra) wherein the
judgments of the Bombay High Court and the Travancore-Cochin High Courts were
approved. Thus in considering the "time factor" of challenging AIR 1983 AP 335
@page-SC2075
the sale, the judgment also considers the "locus standi factor" on account of any prior
interest of the objector in the suit property. This situation is very conspicuously absent in
the judgment of the Patna High Court which has merely chosen to go by the language of
Section 65 CPC. We must hasten to add that even if under Section 65 CPC, the title "after
the sale has been made absolute under Rule 92" relates back to the date of sale, it would
still be subject to the earlier rights of the objector and his interest in the suit property.
Therefore, in our opinion Section 65 would not, by itself, provide any guidance regarding
the interpretation of the term "sold" in the said proviso. Once it is held, as has been
confirmed by this Court in Vannarakkal Kallalathil Sreedharan's case that the attachment
cannot be free from the obligations under the contract of sale, then the necessary sequatur
must follow that even after the factum of sale the objection would still lie before the sale
is made absolute. In our opinion, therefore, the law laid down by the Andhra Pradesh
High Court in M/s.Magunta Mining Co's case is preferable to the law laid down by the
Patna High Court in Kewal Singh's case.
13. We have examined the relied on judgments of the Patna High Court reported in Janki
Mohan and Anr. v. Dr. S. Samaddar and Ors. [AIR 1962 Patna 403] where the High Court
relied on the judgments of the Calcutta High Court in Sasthi Charan Biswan Banik and
Ors. v. Gopal Chandra Saha and Ors. [AIR 1937 Cal 390] as also judgment of Patna High
Court in Mt.Puhupdei Kuer v. Ramcharitar Barhi and Ors. [AIR 1924 Patna 76].
However, since we have taken a view that the judgment of the Andhra Pradesh High
Court is correct, those judgments would have to be held as not laying down a good law. A
contrary view has been taken by Madras High Court in C. Jagannadhan v. Padayya [AIR
1931 Mad 782] which supports the view of Andhra Pradesh Judgment. We approve of
that view.
14. Again, it cannot be said that the present appellant has no locus standi to raise an
objection to the sale for the simple reason that he had filed a suit on the basis of an
Agreement of Sale. The factum of the Agreement of Sale was not denied by the second
respondent. Therefore, whether the Agreement of Sale was a good Agreement of Sale
entitling the appellant for specific performance on the basis of that agreement is
essentially a question to be decided subsequently in the suit (though the suit is earlier to
the suit filed by the first respondent). Under such circumstances there was a cloud on the
property and a person like appellant who had the obligation qua the property in the shape
of an Agreement of Sale could not be held to be an utter outsider having no locus standi
to take the objections. This is the import of the aforementioned decision in Vannarakkal
Kallalthil Sreedharan's case. To the same effect is the judgment in Purna Chandra Basak
v. Daulat Ali Mollah [AIR 1973 Cal 432] where the learned Single Judge of that Court
has held :
"An attaching creditor can only attach the right, title and interest of his debtor at the date
of the attachment and on principle, his attachment cannot confer upon him any higher
right than the judgment-debtor had at the date of the attachment. If a person, having a
contract of sale in his favour, has such pre-existing right the attachment could not be
binding upon him. If the promise get a conveyance, after the attachment, in pursuance of
his contract, he takes a good tile in spite of the attachment."
The observations would only highlight the importance of the Agreement of Sale which is
prior in time of the attachment as also the unconfirmed sale.
15
. Learned counsel also points out the observations of this Court in Desh Bandu Gupta v.
N.L. Anand and Rajinder Singh [(1994) 1 SCC 131] in paragraph 5 which are to the
following effect : 1993 AIR SCW 3458
"The auction-purchaser gets a right only on confirmation of sale and till then his right is
nebulous and has only right to consideration for confirmation of sale. If the sale is set
aside, part from the auction-purchaser, the decree holder is affected since the realisation
of his decree debt is put off and he would be obligated to initiate execution proceedings
afresh to recover the decree debt."
(Emphasis supplied)
From this the learned counsel contended
@page-SC2076
that since in this case the sale had remained to be confirmed, there was no question of
holding the appellant to be an utter outsider or throwing his application as untenable.
16. It was urged before the High Court that the provisions of Order XXI Rule 58 read
with the provisions of Order 22 Rule 101 spells out the duty of the court to adjudicate all
the questions relating to the rights of the parties and that the Executing Court had failed
to consider the provisions in the proper perspective and it should have decided as to
whether the decree between the first and second respondents is a collusive decree merely
meant to defeat the right of the appellant herein. The aforementioned proviso to Rule 58
and more particularly Clause (a) thereof was the only provision relied upon by the High
Court which is clear from the observations made in internal page 10 of the judgment of
the High Court in the following words :
"Clause 5 of Order 21 Rule 58 CPC deals with a situation where the claim or objection
under the proviso to sub-rule (1) is refused to be entertained by the court, the party
against whom such order is made may dispute, but, subject to the result of such suit, if
any, an order so refusing to entertain the claim or objection shall be conclusive. The
highest bidder in the auction sale has been declared as the purchaser and that therefore,
the proviso to Order 21 Rule 58 CPC is attracted."
We have already shown that this is not the situation in law. The High Court further went
on to suggest that a merely Agreement holder could not prevent the right of the auction-
purchaser to get the sale confirmed. This statement is also patently incorrect statement in
law. We have, therefore, no hesitation in holding that the High Court and the Trial Court
were in utter error in relying on proviso to Clause (a) to Rule 58 of Order XXI CPC. The
appeal has, therefore, to succeed. The Executing Court thus shall be obliged to decide the
objections raised by the appellant.
17. In the above circumstances the appeal is allowed. However, in the facts and
circumstances of the case, there will be no order as to costs.
Appeal allowed.
AIR 2008 SUPREME COURT 2076 "Honnamma v. Nanjundaiah"
(From : 2000 AIHC 4598 (Karnataka))
Honnamma and Ors. v. Nanjundaiah (D) by L.Rs. and Ors.
(A) Karnataka Land Reforms Act (10 of 1962), S.45 - LAND REFORMS - LIMITATION
- Occupancy right - Claim for - Application in Form No.7 - Limitation - Mere Mis-
description of property in Form No.7 would not be hit by embargo placed by Act with
regard to filing application before cut off date - Amendment application to rectify mis-
description - Rejection of, on ground of limitation - Not proper.
ILR (1999) Kar 809, Ref.
AIR 1969 SC 1267, Relied on. (Para 8)
(B) Karnataka Land Reforms Act (10 of 1962), S.4, S.121, S.121A, S.133 - LAND
REFORMS - APPELLATE TRIBUNAL - TRIBUNALS - HIGH COURT - Occupancy
right - Claim for - Deemed tenant - Appellate Tribunal found that claimant was lawfully
inducted on land and was deemed tenant - Tribunal held that document relied on had
discharged presumption u/S.133 with regard to correctness of revenue record - View
taken by Tribunal being possible, High Court's finding in revision that claimant had not
been paying rent so as to claim status of deemed tenant was erroneous - Payment of rent
is not condition precedent for creation of deemed tenancy.
AIR 1964 SC 1320, Relied on.
(1982) 2 Kar LJ 21 Ref., (2000 AIHC 4598) (Kar), Reversed. (Paras 11, 12)
ILR (1999) Kant 809 (Ref.) 3
(1982)2 Kant LJ 21 (Ref.) 4, 9
AIR 1969 SC 1267 (Rel. on) 8
AIR 1964 SC 1320 (Rel. on) 5, 9, 11
S.N. Bhat, N.P.S. Panwar and D.P. Chaturvedi, for Appellants; P.R. Ramasesh, Sanjay R.
Hegde, Amit Kr. Chawla, Arul Varma and Vikrant Yadav, for Respondents.
Judgement
HARJIT SINGH BEDI, J. :- These appeals by special leave are directed against the
judgment of the Karnataka High Court dated 27th July, 2000 whereby the orders of the
Appellate Tribunal conferring occupancy
@page-SC2077
rights on the appellants, have been reversed. The tenant-claimants are before us in these
appeals.
2. The facts of the case are as under :-
3. One Nanjundegowda since deceased filed an application on 2nd January, 1976 before
the Land Tribunal, Nagamangala in Form No. 7 of the Karnataka Land Reforms Act,
1962 (hereinafter called the "Act") claiming occupancy rights on specified surveys
numbers in Village Anakanahalli. He thereafter filed an application on 8th April, 1981
seeking to amend Form No. 7 on the plea that some of the survey numbers given therein
had not been correctly re-produced. This application was straightway allowed by the
Land Tribunal without notice to the opposite party and the necessary changes in Form
No. 7 including some land falling in the Revenue Estates of Villages Mylanahalli and
Honnenahalli were made. The landowner, K. Balalingaiah (now represented by his legal
representatives) was the owner of the land in question. One Javarappa had also filed an
application in Form 7 in the year 1975 for the same piece of land for which
Nanjundegowda had filed his application in the year 1981. Javarappa's application was
dismissed by the Land Tribunal. He thereafter filed a Writ Petition in the High Court
which too was dismissed on 4th December, 1980. After the rejection of the aforesaid
application Balalingaiah sold the land in dispute to the respondents herein. The
purchasers were impleaded as parties before the Land Tribunal and they contested the
claim of Nanjundegowda on various grounds. The tribunal, after taking evidence,
documentary as well as oral, concluded that the claim of tenancy rights made by
Nanjundegowda was untenable and accordingly rejected the claim. This order was
challenged by Nanjundegowda by way of a writ petition but on the constitution of the
Land Reforms Appellate Authority by an amendment of the Act, the writ petition was
remitted to the Appellate Authority for disposal. The Appellate Authority crystallized the
points for consideration as under :
1. Whether the lands in dispute are agricultural lands
2. Whether the action of the Land Tribunal permitting amendment of Form No. 7 on
8.4.1981 by including the lands in Milanahalli and Honnenahalli was valid
3. Whether the inclusion of Survey No.12 of Milanahalli village in Form No. 7 by the
amendment application dated 8.4.1981 was valid
4. Whether the lands in question were tenanted or not on 1.3.1974
5. Whether the appellant was in occupation as a tenant of the lands in question as on
1.3.1974
6. Whether the order of the Land Tribunal was correct and whether it was liable to be
interfered with
and after an elaborate discussion of the evidence, allowed the appeal with respect to the
land except that covered by survey Nos. 64 and 12 of villages Anakanahalli and
Mylanahalli respectively vide order of 3rd June 1988 observing that the land was
agricultural in nature that Nanjundegowda was indeed a tenant on the land mentioned in
Form No. 7 as his uncle Kallumaligegowda had brought him from Kenchanahalli to
Anakanahalli where the land was situated and built a house for him with a promise to
give the lands to him, and that after the death of Kallumaligegowda, his relatives had
assured Nanjundegowda that he could work on the land and bring credit to his uncle's
family. The Authority also held that the amendment application pertaining to Form No. 7
filed on 8th April, 1981 could not be said to be beyond limitation. K. Balalingaiah filed a
revision petition against the order of the Tribunal before the High Court of Karnataka
(CRP No. 3582 of 1988). One Smt. Lakshmamma, a respondent herein, also filed a
revision petition against the order of the Tribunal before the High Court of Karnataka
(CRP No. 3553 of 1988). The High Court dismissed the revision petitions for non
prosecution by its order dated 20th September, 1991 and an application for recall of the
order too was dismissed. One Ramegowda, also filed a revision petition before the High
Court against the order of the tribunal (L.L.R.P No 1 of 1997) which too was dismissed
by order dated 29th January, 1997. Some of the alleged purchasers (respondents herein)
again filed revision petitions before the High Court challenging the order of the Appellate
Authority. The High Court observed that the three points which arose for consideration
were :
(1) Whether the Land Reforms Appellate Authority was right in concluding that the
amendment application dated 8-4-1981 was rightly allowed except to the extent indicated
@page-SC2078
in the appellate order
(2) Whether the dismissal of CRP No. 3582 and CRP No. 3553 of 1988 for non-
prosecution and the dismissal of LRRP 1 of 1997 by challenging the impugned order
constitutes res judicata as against the petitioners herein
(3) Whether the order of the Land Reforms Appellate Authority can be legally sustained
and then went to examine each of the issues independently. The court concluded that the
amendment application dated 8th April, 1981 having been filed after the cut off date of
30th June, 1979 was not maintainable in the light of the Division Bench Judgment of the
High Court in Pakeera Moolya vs. Mari Bhat (ILR 1999 Kar 809), as a very limited right
for an amendment had been left with the claimant and that did not cover the inclusion of
land not identified in the original application and as such the amendment insofar as it
dealt with the land in Village Honnenahalli and partly in Village Anakanahalli could not
be claimed by amendment.
On Point No.2, the High Court opined that the earlier decisions in CRP No. 3582 and
CRP 3553 of 1988 and in LRRP No. 1 of 1997 did not constitute res judicata with respect
to the present proceedings.
4. On the third issue, the High Court found that the evidence produced by the parties did
not justify the conclusion that the claimant was a person who had been lawfully inducted
on the land in question so as to give him the status of a deemed tenant as he was not a
contractual tenant and was not paying rent and for this purpose relied on several
judgments of this Court and of the High Court and in particular on Chokkannagiri
Narayanappa vs. Land Tribunal (1982 (2) Kar LJ 21). The High Court accordingly
allowed the revision petition and set aside the order of the Appellate Authority, thus
dismissing the application filed by Nanjundegowda. It is in this circumstance, that the
present appeals are before us by way of special leave.
5. At the very outset, Mr. S. N. Bhat, the learned counsel for the appellant has fairly
conceded before us that the earlier proceedings did not constitute res judicata and the
conclusion drawn by the High Court to that extent was correct. He has however argued
that the finding on the other two points i.e. limitation and the deemed tenancy of
Nanjundegowda had been wrongly decided by the High Court and these findings were
required to be set aside. He has laid special emphasis on the submission that the deemed
tenancy under Section 4 of the Act did not visualize the payment of any rent and all that
was required for the claimant to assume the status of a deemed tenant was that he had
been cultivating the land lawfully. In support of this argument, the learned counsel has
cited Dahya Lala and others vs. Rasul Mahomed Abdul Rahim and others, AIR 1964 SC
1320.
6. The learned counsel for the respondent has however pleaded that by the amendment
application dated 8th April, 1981 the applicant had sought to include land which did not
figure in the first application dated 2nd January, 1976 and as an embargo had been placed
by the Act itself under which no application in Form No. 7 could be entertained after 30th
June, 1979, the question of any amendment thereafter was statutorily barred and that the
High Court even otherwise having found no case in favour of the claimants on facts, no
interference was called for.
7. We have considered the arguments advanced by learned counsel. It is true that the Act
itself provides a cut off date in the filing of the application in Form No. 7. It is also true
that the original application had been filed well within time though the amended
application had been filed after the last date permitted by the statute. In order to examine
the nature of the amendment, and whether in fact it had set up what was a new case,
requires an examination of the application. It may be mentioned that in the original
application the claim was limited to land in Village Anakanahalli which was identified as
under :
By the amended application dated 8th April, 1981, however the following amendment
was sought :
Village
Survey No.
Extent
Anakanahalli 35 00-27
49-1 0-37
50 1-17
52/3 1-32
71/1 1-23
31 0-20
64 0-13
81 7-37
75 4-07
75 6-33
13 6-02
@page-SC2079
By the amended application dated 8th April, 1981, however the following amendment
was sought :
Village
Survey No.
Extent
Anakanahalli 35-1 00-02
35-2 0-27
49-1 0-37
50-3 1-17
52-3 1-32
71-1 1-23
31-2a 0-15
Mylanahalli 12 1-33
13 6-05
Honnenahalli 75-1 7-00
75-2c 0-18
81c 5-04
8. A perusal of the first and the amended application would reveal that as survey Nos. 64,
81, 75, 75, 13 did not figure in the original application, the proposed amendment was
rejected and that order has been maintained even by the High Court. The claim pertaining
to survey No. 12 in village Mylanahalli too has also been rejected for the same reasons.
The amendments have however been allowed with respect to the other survey numbers
and also with respect to a change in the name of the village(s) on the understanding that a
mere mis-description of the property was to be rectified by amendment. To our mind
therefore, a mere mis-description while identifying the land in Form No. 7 as originally
filed would not be hit by the embargo with respect to the last date of the filing of Form
No. 7 i.e. on 30th June, 1979. The judgment referred to by the High Court is based on a
different set of facts in as much certain items which had not been included in the original
plaint were sought to be included by amendment, a proposal which the court held could
not be justified. The observations in Jai Jai Ram Manohar Lal vs. National Building
Material Supply, Gurgaon, AIR 1969 SC 1267 are meaningful. It has been observed that a
party cannot be refused amendment in a case of a mis-description of property as the
purpose of amendment is to ensure that the real issues are addressed and that in such a
case no question of limitation would arise and the amended plaint must be deemed to
have been instituted on the date on which the original plaint had been filed. We are,
therefore, of the opinion that the finding of the High Court on the question of limitation is
erroneous.
9
. Mr. Bhat has also laid great emphasis on the third issue as to whether the deemed
tenancy which Nanjundegowda had claimed was justified on facts. He has pointed out
that the appellate authority as the final fact finding body had found in favour of the
deemed tenants on an appreciation of the evidence that had been adduced and it was not
open to the High Court sitting in revision to upset these findings of fact unless they were
perverse or not possible on the evidence. It has also been emphasized that the High Court
had relied on Chokkannagiri Narayanappa's case (supra) and observed that as no rent had
been paid by Nanjundegowda it could not be said that he could attain the status of a
deemed tenant. He has however placed reliance on Dahya Lala's case (supra) wherein a
Constitution Bench of this court while construing Section 4 of the Bombay Tenancy and
Agricultural Lands Act, 1948 (which is part materia with Section 4 of the Act) had clearly
held that the payment of rent was not visualized in such a situation. AIR 1964 SC 1320
10. We have considered the arguments advanced by learned counsel. Section 121
provides for an appeal to the Appellate Tribunal and gives it jurisdiction to confirm,
modify or rescind the order in appeal or its execution or to pass such other order as may
seem legal and just in accordance with the provisions of the Act. Section 121A which
confers the revisional power on the High Court reads as under :
"121-A. Revision by the High Court. - The High Court may at any time call for the
records of any order or proceeding recorded by the Appellate Authority under this Act or
any other law for the purpose of satisfying itself as to the legality of such order or as to
the regularity of such proceeding and may pass such order with respect thereto as it
thinks fit;
Provided that no such order shall be made except after giving the person affected a
reasonable opportunity of being heard".
11
. A comparative reading of Sections 121 and 121-A would show that the High Court's
power has been circumscribed to satisfying itself as to the legality of the order impugned
and to the regularity of the proceedings. Mr. Bhat appears to be right in submitting that
interference in revision on facts would be justified only on very limited AIR 1964 SC
1320, Para 6
@page-SC2080
grounds such as perversity and that if the view taken by the Appellate Authority was
possible on the evidence it would be inappropriate on the part of the High Court to differ
in its conclusions. It bears notice that the Appellate Authority had placed reliance on a
large number of documents/letters, the landowners had written to Nanjundegowda. The
Tribunal accordingly found that these letters, when examined in the light of the other
evidence, had discharged the presumption under Section 133 of the Act with regard to the
correctness of the revenue record which was admittedly in favour of the landowner. It
appears also that the High Court was deeply impressed by the fact that Nanjundegowda
had not been paying rent at the time when the application in Form No. 7 had been filed.
This finding is on the face of it erroneous in the light of the Judgment in Dahya Lala's
case (supra). As already noted above, while construing Section 4 of the Bombay Tenancy
and Agricultural Lands Act, which is part materia with Section 4 of the Act, this Court
observed as under :
"The Act of 1948, it is undisputed, seeks to encompass within its beneficent provisions
not only tenants who held land for purpose of cultivation under contracts from the owners
but persons who are deemed to be tenants also. The point in controversy is whether a
person claiming the status of a deemed tenant must have been cultivating land with the
consent or under the authority of the owner. Counsel for the appellants submits that
tenancy postulates a relation based on contract between the owner of land, and the person
in occupation of the land, and there can be no tenancy without the consent or authority of
the owner to the occupation of that land. But the Act has by Section 2 (18) devised a
special definition of tenant and included therein persons who are not contractual tenants.
It would therefore be difficult to assume in construing Section 4 that the person who
claims the status of a deemed tenant must be cultivating land with the consent or
authority of the owner. The relevant condition imposed by the statute is only that the
person claiming the status of a deemed tenant must be cultivating land "lawfully": It is
not the condition that he must cultivate land with the consent of or under authority
derived directly from the owner. To import such a condition is to rewrite the section, and
destroy its practical utility. A person who derives his right to cultivate land from the
owners would normally be a contractual tenant and he will obviously not be a "deemed
tenant". Persons such as licencees from the owner may certainly be regarded as falling
within the class of persons lawfully cultivating land belonging to others, but it cannot be
assumed therefrom that they are the only persons who are covered by the section. The Act
affords protection to all persons who hold agricultural lands as contractual tenants and
subject to the exceptions specified all persons lawfully cultivating lands belonging to
others, and it would be unduly restricting the intention of the legislature to limit the
benefit of its provisions to persons who derive their authority from the owner, either
under a contract of tenancy, or otherwise. In our view, all persons other than those
mentioned in clauses (a), (b) and (c) of Section 4 who lawfully cultivate land belonging
to other persons whether or not their authority is derived directly from the owner of the
land must be deemed tenants of the lands".
12. From a perusal of the aforequoted passage all that is required for the person to claim
the status of a deemed tenant is that the possession must be lawful, but there is nothing
which would necessitate the payment of rent as a condition precedent for the creation of a
deemed tenancy. We are therefore of the opinion that the finding of the High Court with
respect to the deemed tenancy under Issue No.3 is also erroneous.
13. This appeal is accordingly allowed, the order of the High Court is set aside and that of
the Appellate Authority restored. There will, however, be no order as to costs.
Appeal allowed.
AIR 2008 SUPREME COURT 2080 "State of Karnataka v. R. Vivekananda Swamy"
(From : Karnataka)
Civil Appeal Nos.2336 with 2335 of 2008 (arising out of SLP (C) Nos. 2593 with 1387 of
2006), D/- 1 -4 -2008.
State of Karnataka and Anr. v. R. Vivekananda Swamy
WITH
State of Rajasthan and Ors. v. Smt. Savitri Upadhyay.
(A) Constitution of India, Art.21, Art.47, Art.309 - Karnataka Government Servants'
(Medical Attendance) Rules (1963), R.7, R.31 - Rajasthan Civil Services (Medical
Attendance) Rules (1970), R.6 - RIGHT TO LIFE - DIRECTIVE PRINCIPLES -
GOVERNMENT SERVANTS - CIVIL SERVICE -
@page-SC2081
Medical reimbursement - Employee getting treated at hospital of his choice -
Reimbursement can be limited.
The reimbursement of medical claim of an employee when he obtains treatment from a
hospital of his choice can be made limited. Such a rule furthermore having been framed
under the proviso to Art. 309 of the Constitution of India constitutes conditions of service
in terms whereof on the one hand the employee would be granted the facility of medical
aid free of cost from the recognized Govt. hospitals and on the other he, at his option,
may get himself treated from other recognized hospitals/ institutions subject of course to
the conditions that the reimbursement by the State therefor would be limited. (Para
18)
(B) Constitution of India, Art.309, Art.14 - Karnataka Government Servants' (Medical
Attendance) Rules (1963), R.31 - SERVICE MATTERS - GOVERNMENT SERVANTS
- EQUALITY - Medical reimbursement - Power of Govt. to relax rules - Earlier instances
of undue relaxation - Do not confer right on claimant to claim relaxation.
While exercising power to relax rules, the authority must act judiciously keeping in mind
the purport and object thereof. Considerations therefor, although may not partake a
mathematical exactable but should always be fair and reasonable. Although it may not be
possible for an employee to enforce a purported right on the premise that another person
had obtained reimbursement for a similar kind of treatment, ordinarily fair procedure
envisages a broad similarity. If any person has been shown any undue favour, by itself
may not be a ground to favour another but when such a contention is raised, the State
should be able to demonstrate a fair treatment. It is possible to draw a distinction on the
basis of several factors, emergent situation being one of them. (Para 20)
2006 AIR SCW 4930 : 2006 Lab IC 4195 (Ref.) 19
2006 AIR SCW 5632 (Ref.) 19
(2001) 9 SCC 217 (Rel. on) 16
1998 AIR SCW 1480 : AIR 1998 SC 1703 :1998 Lab IC 1555 (Rel. on) 15, 17
1996 AIR SCW 1044 : AIR 1996 SC 1388 (Ref.) 14
Aruneshwar Gupta, Addl. Advocate, Genl., Sanjay R. Hegde, Amit Kumar Chawla,
Naveen Kumar Singh, Shaswat Gupta, for Appellants; S.N. Bhat, Ms. Shobha, Harish
Sharma, Rajinder Kumar Panigrahi, Ajay Choudhary, for Respondent.
Judgement
1. S. B. SINHA, J. :-Leave granted in both the matters.
2. Interpretation and/or application of Medical Benefit Rules applicable in the State of
Karnataka as also in the State of Rajasthan is in question before us in these appeals which
arise out of the judgment and order dated 20th June, 2005 passed by a Division Bench of
the Karnataka High Court in Writ Petition No. 10942 of 2005 and that of the judgment
and order dated 4th August, 2005 passed by a Division Bench of the High Court of
Rajasthan, Jaipur Bench, Jaipur in D.B. Civil Writ Petition No.6502 of 2004 respectively.
3. Respondent in the Karnataka case is an officer working in the Office of the Department
of Commercial Taxes. He underwent 'Coronary Artery' Bypass Surgery in the Wockhardt
Hospital and Heart Institute having been admitted on 19th June, 2000. A sum of Rs.
1,50,600/- was said to have been incurred by him by way of medical expenses. He
claimed re-imbursement thereof. The State of Karnataka sanctioned and reimbursed a
sum of Rs. 39,207/-. Feeling aggrieved, a writ petition was filed which, by reason of the
impugned judgment, has been allowed.
4. Rajasthan case, relates to one Ajay Upadhyay, who was a Judicial officer. He had been
suffering from some kidney problems. Respondent herein is his mother. Ajay Upadhyay
was being treated for renal failure in 1997. He was referred to AIIMS for kidney
transplantation by the SMS Medical College and Hospital, Jaipur. However, as AIIMS
showed its inability to admit him because of non-availability of bed. Transplantation of
kidney was carried out in Batra Hospital, Delhi, in 1997. Respondent, who was also an
employee of the State claimed reimbursement of the said medical expenses. However, a
sum of Rs. 50,000/- was allegedly found admissible for the purpose
@page-SC2082
of reimbursement out of the total claim of a sum of Rs. 2,11 lacs. Respondent, however,
claimed that the entire sum may be reimbursed. Other medical expenses incurred by Ajay
Upadhyay, as follow up measures, have been reimbursed to the respondent herein.
Ajay Upadhyay Joined Rajasthan Judicial Service in the year 2000. In February, 2003 he
got himself treated in Batra Hospital, Allegedly his case was not referred therefor by the
SMS Medical College and Hospital, Jaipur.
As he was not treated by AIIMS, he filed a writ petition in the High Court of Delhi for a
direction to admit him therein, However, because of an emergent situation, he got himself
admitted in the Batra Hospital. The said writ petition was withdrawn.
In the month of May, 2003 he again came to Delhi and got himself admitted and treated
in Batra Hospital. He filed a representation before the Registrar General of the High
Court of Rajasthan that on account of the sudden demise of his maternal uncle, he had to
go to Delhi and as he fell ill there, went straightway to Batra Hospital. He, therefore,
prayed for reimbursement of his medical expenses incurred on that occasion also.
Indisputably, however, the Principal and Controller, SMS Medical College and Hospital,
on or about 5th July, 2003, referred him to AIIMS. Allegedly in the reference order it was
mentioned that the same was subject to medical expenses with a ceiling of Rs. 10,000/-
only. Ajay Upadhyay obtained treatment in the Batra Hospital from 4th July to 29th July,
2003. He unfortunately breathed his last on 7th November, 2003. Respondent claimed
medical reimbursement to the tune of Rs.6,52,148/- with interest. Only a sum of Rs.
75,000/- was, however, sanctioned by the State of Rajasthan as being admissible,
purported to be in terms of the Rules.
5. Feeling aggrieved, a writ petition was filed in the High Court of Rajasthan which by
reason of the impugned judgment and order has been allowed directing :-
"As a result of the aforesaid discussion the writ petition succeeds and same is allowed.
The respondents are directed to release the amount of Rs. 6,52,148/- in favour of the
Petitioner of the medical expenses bills of Batra Hospital, New Delhi, where his son late
Shri Ajay Upadhyay, an officer of the Rajasthan Judicial Service was treated, within a
period of two months from the date of receipt of the copy of this order. The respondents
are further directed to pay to the petitioner on the aforesaid amount the interest at the rate
of 6% per annum from the date of submission of the first medical bill for reimbursement
of the amount of Batra Hospital, New Delhi, till the payment thereof is made,"
6. Before embarking on the contentions raised by learned counsel in these appeals, we
may notice the relevant Rules framed by the States of Karnataka and Rajasthan.
7. The State of Karnataka in exercise of its power conferred upon it by the proviso to
Article 309 of the Constitution of India and in supersession of the Karnataka Government
Servants' (Medical Attendance) Rules, 1957 framed the Karnataka Government Servants'
(Medical Attendance) Rules, 1963 (for short the 1963 Rules).
Rule 2 of the 1963 Rules provides that the same shall apply mutatis mutandis to the
family of a Government servant as would apply to the Government servant himself. The
explanations appended thereto reads :-
"2. Application. -
Explanation. - I. For the purposes of these rules, "family" means. -
(i) the wife or husband;
(ii) the father and mother including stepmother; and
(iii) children including adopted children and step-children, of a Government servant who
are wholly dependent on such Government servant.
Explanation II. - For the purpose of this sub-rule,. The father and mother including step-
mother shall be regarded as wholly dependent on the Government servant if they
ordinarily reside with him and their total monthly income does not exceed two thousand
rupees."
"Authorised hospitals" and "medical institutions" have been defined in Rule 3(aa) to
mean the hospitals and medical institutions specified in Schedule I. Rule 7 entitles a
Government servant to receive free medical treatment in such Government Hospitals at or
near the place where he falls ill, as can, in the opinion of the authorized medical
attendant, provide the necessary and suitable treatment. "Authorised medical attendant"
@page-SC2083
has been defined in Section 3(a) to mean a medical officer who is a Gazetted Government
servant working in a Government hospital or Government Medical institution and various
other authorities as specified therein. Rule 8(1), although is not relevant for our purposes,
may be noticed which is in the following terms :-
"8. Admission to and treatment in wards. (1) the patients who under these rules, are
eligible for treatment in a particular class of paying or special ward, may get themselves
treated in any higher class of ward, by paying the difference in the rates for the two
classes of wards,"
Proviso appended to sub-rule (3) of Rule 8, which was introduced by reason of the
Notification dated 22nd January, 2001, reads thus :-
"Provided that notwithstanding anything contained in these rules the Government Servant
and his family shall be eligible for treatment in the wards of the authorized hospitals and
medical institutions specified in Schedule I as per the rates specified in the Table below. -
Range of Pay Category of Ward/Class of accommodations to which entitled

Maximum ward charges/ room rent to which entitled
(1) (2) (3)
(i) Up to Rs. 4,350 per month General Ward Rs. 100/- per day
(ii) Rs. 4,351 to Rs. 11,840 per month, Semi-Private Ward Rs. 200/- per day
(iii) Rs. 11,841 and above Private Ward Rs. 500/- per day
Rule 14 specifies as to how and in what manner, the reimbursement of medical expenses
is to be carried out.
Rule 15 provides for claims for reimbursement of medical charges. Rule 31 empowers
the Government to relax the provisions of the said Rules.
8. The judgment of the Tribunal, which was affirmed by the High Court, was based on the
premise that persons similarly situated who had taken treatment from Wockhardt Hospital
and Heart Institute had been given the benefit of the reimbursement of the medical bills,
although the respondent was denied of the said benefit.
9. The Government of Rajasthan also in exercise of its powers conferred upon it by the
proviso to Article 309 of the Constitution of India made Rules known as Rajasthan Civil
Cervices (Medical Attendance) Rules, 1970 (in short the 1970 Rules).
Rule 2 provides for the extent of application of the said Rules which includes all
government servants. Rule 3(1) defines "Authorised Medical Attendant." "Authorised
medical attendant" has been defined in Section 3(a) to mean a Medical Officer of the
Rajasthan Medical Department on duty in a hospital or dispensary and various other
authorities as specified therein.
"6. Medical attendance and treatment outside Rajasthan.- (1) A Government servants
including members of his family posted to a station or sent on duty or spending leave or
otherwise at a station outside Rajasthan in India and who falls ill shall be entitled to free
medical attendance and treatment as an indoor and outdoor patient in a Hospital
maintained by the Central Government or other State Government on the scale and
conditions which would be admissible to him under these rules, had he been on duty or
on leave in Rajasthan.
(2) For the purpose of this rule "Authorised Medical Attendant" in respect of a
Government servant or class of Government servant at a station outside Rajasthan shall
mean an officer of Medical Department of Central or other State Government (as the case
may be) on duty in a Government hospital or Dispensary at that station.
(3) The charges paid by the Government
@page-SC2084
Servant posted at Delhi to the following private hospitals/clinics for X-Ray, Pathological,
Baceterilogical, Radiological tests and other kind of investigations which are considered
necessary by the doctor of the State Government posted in Delhi, shall be reimbursed :-
1. Sunderlal Jain Charitable Hospital, Ashok Vihar.
2. Massonic Charitable Polyclinic, Janpath, and
3. Sir Gangaram Hospital, Rajendra Nagar.
7. Treatment of a disease for which treatment is not available in the State. (1) A
Government servant and the members of his family suffering from a disease for which
treatment is not available in any Government hospital in the State shall be entitled to
medical attendance and treatment to the extent indicated in sub-rule (2) of this rule in a
Hospital/Institution outside the State recognized by the Government, provided that it is
certified by the Principal of a Medical College/Director of Medical and Health Services
on the basis of opinion of the Authorised Medical Attendant to the effect that the
treatment of a particular disease from which the patient is suffering is not available in any
Government Hospital in the State and it is considered absolutely essential for the
recovery of the patient to have treatment at a hospital outside the State.
(2) The following charges/expenses shall be reimbursable :-
(a) Cost (including Sales Tax) of Allopathic Drugs, Medicines, Vaccines, Sera or other
therapeutic substances reimbursable under these rules.
(b) Sums actually paid to the Hospital/ Institution on account of medical attendance and
treatment including charges for surgical operations and ordinary nursing facility.
(c) Travelling allowance for journey by rail/road from duty point at the station at which
the patient falls ill to the place of treatment outside the State and back to a single fare of
the class to which his classification entitles him under Rajasthan Travelling Allowance
Rules. Such travelling allowance shall also be admissible for an attendant, if the
Authorised Medical Attendant certifies in writing that it is unsafe for the patient to travel
unattended and that an attendant is necessary to accompany the patient to the place of
treatment and back.
(3) The facility of medical attendance and treatment in the type of cases mentioned in
sub-rule (1) can be had at any of Hospitals/ Institutions mentioned in Appendix 11.
(4) For the purpose of reimbursement, the original receipts issued by such Hospital/
Institutions and vouchers of medicines etc. shall be countersigned by the Authorised
Medical Attendant of Government Hospital on whose advice the treatment outside the
State was undertaken."
It does not appear that 1970 Rules provide for any power of relaxation.
10. Mr. Hegde, learned counsel appearing on behalf of the State of Karnataka and Mr.
Aruneshwar Gupta, the learned Additional Advocate General, appearing on behalf of the
State of Rajasthan submitted that having regard to the Rules framed by the States, the
validity whereof is not being in question and in fact having been upheld by this Court, the
High Courts of Karnataka and Rajasthan committed serious errors in issuing the
impugned directions.
11. Mr. Bhat, learned counsel appearing on behalf of the respondent in Karnataka case,
would, on the other hand, submit that the power of relaxation should have been exercised
by the appropriate authority judiciously and in a case of this nature, Article 14 of the
Constitution of India is attracted. It was urged that as a large number of non Government
Hospitals are now included in the list of hospitals, the impugned judgment should not be
interfered with.
12. Ms. Shoba, learned counsel appearing on behalf of the respondent in Rajasthan case
took us to the entire factual aspect of the matter and submitted that the High Court
judgment is unexceptionable, keeping in view the fact that whatever is required to be paid
is reimbursement of the bills for the month of May-June, 2003, although the State has
reimbursed the bills for medical expenses for February, 2003, July, 2003 and also
October, 2003. It was urged that as even in relation to the reimbursement of the medical
bills for the year 1997, the State has favourably responded, the High Court cannot be said
to have committed any error in issuing the impugned directions, particularly when
correctness of the bills was verified and recommended by the High Court.
13. Law operating in this field, as is propounded
@page-SC2085
pounded by Courts from time to time and relevant for our purpose, may now be taken
note of.
14
. In Surjit Singh vs. State of Punjab and others,(1996) 2 SCC 336 this Court in a case
where the appellant therein while in England fell ill and being a case of emergency case
was admitted in Dudley Road Hospital, Birmingham. After proper medical diagnosis he
was suggested treatment at a named alternate place. He was admitted and undergone
bypass surgery in Humana Hospital, Wellington, London. He claimed reimbursement for
the amount spent by him. In the peculiar facts of that case it was held :- 1996 AIR
SCW 1044, Para 10
"11. It is otherwise important to bear in mind that self preservation of one's life is the
necessary concomitant of the right to life enshrined in Article 21 of the Constitution of
India, fundamental in nature, sacred, precious and inviolable. The importance and validity
of the duty and right to self-preservation has a species in the right of self defence in
criminal law. Centuries ago thinkers of this Great Land conceived of such right and
recognised it. Attention can usefully be drawn to verses 17, 18, 20 and 22 in Chapter 16
of the Garuda Purana (A Dialogue suggested between the Divine and Garuda, the bird) in
the words of the Divine :
17. Vinaa dehena kasyaapi canpurushaartho na vidyate Tasmaaddeham dhanam
rakshetpunyakarmaani saadhayet
Without the body how can one obtain the objects of human life? Therefore protecting the
body which is the wealth, one should perform the deeds of merit.
18. Rakshayetsarvadaatmaanamaatmaa sarvasya bhaajanam Rakshane yatnamaatishthejje
vanbhaadraani pashyati
One should protect his body which is responsible for every thing. He who protects
himself by all efforts, will see many auspicious occasions in life.
20. Sharirarakshanopaayaah kriyante sarvadaa budhalh Necchanti cha punastyaagamapi
kushthaadiroginah
The wise always undertake the protective measures for the body. Even the persons
suffering from leprosy and other diseases do not wish to get rid of the body.
22. Aatmaiva yadi naatmaanamahitebhyo nivaarayet Konsyo hitakarastas-maada-
atmaanam taarayishyati
If one does not prevent what is unpleasent to himself, who else will do it? Therefore one
should do what is good to himself."
We may, however, notice that in that case, before this Court, Rules framed under the
proviso to Article 309 of the Constitution of India, were not in force. What were in force
were the Policies regarding reimbursement of medical expenses framed by the State of
Punjab on 25th January, 1991 and 8th October, 1991.
15
. This Court, however, considered the validity of a rule in regard to reimbursement of the
medical expenses viz-a-viz the fundamental right of a citizen in terms of new policy
evolved by the State of Punjab limiting claim for reimbursement in State of Punjab and
others vs. Ram Lubhaya Bagga and others, (1998) 4 SCC 117, opining :- 1998 AIR
SCW 1480, Para 26
"23. When we speak about a right, it corelates to a duty upon another, individual,
employer, Government or authority. In other words, the right of one is an obligation of
another. Hence the right of a citizen to live under Article 21 casts obligation on the State.
This obligation is further reinforced under Article 47, it is for the State to secure health to
its citizen as its primary duty. No doubt Government is rendering this obligation by
opening Government hospitals and health centers, but in order to make it meaningful, it
has to be within the reach of its people, as far as possible, to reduce the queue of waiting
lists, and it has to provide all facilities for which an employee looks for at another
hospital. Its up-keep; maintenance and cleanliness has to be beyond aspersion. To employ
the best of talents and tone up its administration to give effective contribution. Also bring
in awareness in welfare of hospital staff for their dedicated service, give them periodical,
medico-ethical and service oriented training, not only at the entry point but also during
the whole tenure of their service. Since it is one of the most sacrosanct and valuable
rights of a citizen and equally sacrosanct sacred obligation of the State, every citizen of
this welfare State looks towards the State for it to perform its this obligation with top
priority including by way of allocation of sufficient funds. This in turn will not only
secure the right of its citizen to the best of their satisfaction but in turn will benefit the
State in
@page-SC2086
achieving its social, political and economical goal. For every return there has to be
investment. Investment needs resources and finances. So even to protect this sacrosanct
right finances are an inherent requirement. Harnessing such resources needs top priority."
However, having regard to the fact that the medical facilities continued to be given and an
employee was given free choice to get treatment from any private hospital in India but
the amount of payment for reimbursement was regulated, it was opined :-
"29. No State or any country can have unlimited resources to spend on any of its project.
That is why it only approves its " projects to the extent it is feasible. The same holds good
for providing medical facilities to its citizen including its employees. Provision of
facilities cannot be unlimited. It has to be to the extent finance permit. If no scale or rate
is fixed then in case private clinics or hospitals increase their rate to exorbitant scales, the
State would be bound to reimburse the same. Hence we come to the conclusion that
principle of fixation of rate and scale under this new policy is justified and cannot be held
to be violative of Article 21 or Article 47 of the Constitution of India."
16. The said principle was reiterated in State of Punjab and others vs. Mohan Lal Jindal,
(2001) 9 SCC 217.
17. The question came up for consideration before this Court in Confederation of
ExServicemen Association and others vs. Union of India and others : (2006) 8 SCC 399
wherein a Constitution Bench of this Court had the occasion to notice Ram Lubhaya
Bagga (supra). Agreeing therewith it was opined :-
"In our considered opinion though the right to medical aid is a fundamental right of all
citizens including ex-servicemen guaranteed by Article 21 of the Constitution, framing of
scheme for ex-servicemen and asking them to pay "one time contribution" neither
violates Part III nor is it inconsistent with Part IV of the Constitution. Ex-servicemen who
are getting pension have been asked to become members of ECHS by making "one time
contribution" of reasonable amount (ranging from Rs. 1800 to Rs. 18,000/-. To us, this
cannot be held illegal, unlawful, arbitrary or otherwise unreasonable."
18. In view of the aforementioned settled principles of law there cannot be any doubt that
the Rules regarding reimbursement of medical claim of an employee when he obtains
treatment from a hospital of his choice can be made limited. Such a rule furthermore
having been framed under the proviso to Article 309 of the Constitution of India
constitutes conditions of service in terms whereof on the one hand the employee would
be granted the facility of medical aid free of cost from the recognized government
hospitals and on the other he, at his option, may get himself treated from other recognized
hospitals/institutions subject of course to the conditions that the reimbursement by the
State therefor would be limited.
19
. In the Karnataka case, however, it is necessary to take into consideration the provisions
of Rule 31 of 1963 Rules which confers an unequivocal power of relaxation to the
authorised authorities specified therein. A public authority may exercise its power of
relaxation only where there exists a provision therefor. [See - Kendriya Vidyalaya
Sangathan and Ors. vs. Sajal Kumar Roy and Ors, (2006) 8 SCC 671; Pitta Naveen
Kumar and others, vs. Raja Narasaiah Zangiti and others, (2006) 10 SCC 261 ]. 2006
AIR SCW 5632
2006 AIR SCW 4930
20. It, however, goes without saying that while exercising such a power, the authority
must act judiciously keeping in mind the purport and object thereof. Considerations
therefor, although may not partake a mathematical exactable but should always be fair
and reasonable. Although it may not be possible for an employee to enforce a purported
right on the premise that another person had obtained reimbursement for a similar kind of
treatment, ordinarily fair procedure envisages a broad similarity. If any person has been
shown any undue favour, we may add, by itself may not be a ground to favour another
but when such a contention is raised, the State should be able to demonstrate a fair
treatment. It is possible to draw a distinction on the basis of several factors, emergent
situation being one of them. So viewed, we do not find that the State of Karnataka had
acted arbitrarily.
21. Rajasthan case, however, involves some disputed questions of fact. Ajay Upadhyay
was a Judicial Officer. Indisputably he was suffering from a serious disease. The
contention of the respondent to
@page-SC2087
the effect that the appellant herein herself being a government employee was able to
obtain reimbursement of the amount spent towards his treatment as far as back in 1977.
We do not see any reason why he should not be reimbursed for the later period. It is true
that ordinarily a government employee may have to get himself treated in AIIMS; it being
a pioneer super-speciality institution, but we cannot also shut our eyes to the fact that for
one reason or the other, Ajay Upadhyay could not be admitted in AIIMS. A writ petition
was filed in the Delhi High Court which, because of passage of time, although was
withdrawn but it is difficult for us to arrive at one conclusion or the other only on the
basis of the averments made by the parties to the writ petition before the High Court; one
of them being AIIMS itself. He developed trouble even after joining judicial service. He
admittedly was referred to AIIMS. Whether such reference was made in February, 2003
or July, 2003 may be a matter of dispute. But if without any order of reference in
February, 2003 sreimbursement of expenditure incurred in February, 2005 has been
effected and similarly for July and October-November, 2003 the respondent was
reimbursed, we do not see any reason as to why reimbursement of the medical expenses
for the period May and June, 2003 would not be allowed.
22. The State might be fighting this case on principle. It may be correct in its view.
Applying the Rules strictly, respondent might not have been entitled for reimbursement
for the period subsequent to the date of reference and not prior thereto. But as indicated
hereinbefore there is no reason to ignore the statement made in para 2 of the additional
affidavit filed on behalf of the respondent, which is to the following effect :-
"2) That the State Govt. had allowed the full reimbursement of medical bills of late Shri
Ajay Upadhyay incurred in Batra Hospital, New Delhi, for the period of treatment in
Batra Hospital, from 04-02-03 to 10-02-03 and from 04-11-03 to 07-11-03, and as such
the reimbursement of medical bills of late Shri Ajay Upadhyay are still pending from 13-
05-03 to 21-10-03 amounting" to Rs. 5,98,406.75 of Batra Hospital, New Delhi."
23.' What, however, is required to be taken into consideration is the three bills amounting
to Rs. 5,98,406.75 for the period 13-05-03 to 21-10-03.
24. There appears to be some discrepancies in regard to the said bills. We are not
concerned with the 1997 bills. Our attention has been drawn to the following bills.
The first Bill was of Rs. 42,197.00 for the period 04-03-03 to 10-02-03 As noticed
hereinbefore the said bill has already been paid.
The second bill is for Rs. 3,16,311.75 for the period 13-05-03 to 11-06-03. The said bill
remains unpaid.
The third bill is for reimbursement of Rs. 1,15,619.00 for the period 04-07-03 to 29-07-
03.
The fourth bill does not appear to be on record. But from the respondent's letter dated
21st April, 2006 it appears that the same was for a sum of Rs. 31,544/- for the period 04-
11-03 to 07-11-03 which has already been paid.
25. The dispute, thus, centres round the aforementioned two bills amounting to Rs.
3,16,311.75 ps. and Rs. 1,15,619.00.
26. In a case of this nature, we are of the opinion, that having laid down the law for the
future that claim for reimbursement must be made only in terms of the Rules and not
dehors the same, and more so, when there is no power of relaxation, in exercise of our
jurisdiction under Article 142 of the Constitution of India, we direct the States of
Karnataka and Rajasthan to pay the balance amounts. However, this order shall not be
treated as a precedent.
We may, however, state that the reason for such a direction is that so far as the State of
Karnataka is concerned, it has enlisted a large number of hospitals as approved medical
institutions enabling its employees to obtain treatment therefrom.
27. So far as the Rajasthan case is concerned unlike the State of Karnataka there is no
provision for exemption for payment of portion of the amount of bill which would be
corresponding to the costs which would have been otherwise incurred by the employee in
obtaining treatment from AIIMS. It is furthermore evident that ex post facto sanction had
been granted. The State did not disclose the basis for such grant. The grant was not
dehors the Rules. Ajay Upadhyay indisputably obtained treatment at Batra Hospital from
time to time. He being a judicial officer, the bills submitted by him had been verified by
the Registrar of
@page-SC2088
the High Court. Recommendations had also been made by the High Court for
reimbursement of the said bills.
28. We, therefore, are of the opinion that in order to do complete justice to the parties, we
pass the order as proposed hereinbefore and direct the States of Karnataka and Raj as
than to pay the balance amounts to the respondent.
29. The appeals are disposed of with the above directions. In the facts and circumstances
of the cases there shall be no order as to costs.
Order accordingly.
AIR 2008 SUPREME COURT 2088 "Som Lal v. Vijay Laxmi"
(From : 2006 (1) Rcc Civ R 811 (Punj. and Har.))
Som Lal v. Vijay Laxmi and Ors.
Punjab State Election Commission Act (10 of 1994), S.11, S.142, S.143 - Punjab
Panchayati Raj Act (9 of 1994), S.208 - ELECTION COMMISSION - PANCHAYAT -
REPEAL AND SAVINGS - INTERPRETATION OF STATUTES - Election -
Disqualification - Holding office of profit - Act 19 of 1994 is subsequent in point of time
- Repeals provisions of Act 0 of 1004 so far as it is inconsistent with Act 10 of 1004 -
Therefore disqualification mentioned in S.11 of Act 10 of 1004 would prevail - Appellant
candidate serving in Marketing Committee - Cannot be said to be holding office of profit.
2006 (1) Rec Civ R. 811 (Punj. and Har.), Reversed.
Interpretation of Statutes - Later Act to prevail.
Since the Act 19 of 1994 is subsequent in point of time and it also has the provisions of
Ss. 142 and 143 which clearly contemplate that it shall have the complete overriding
effect, reading of S. 142 makes it clear that the legislature were aware of the earlier
disqualification and subsequently they have inserted the disqualification under sub-sees,
(f) and (g) of S. 11 so far as the office of profit is concerned and provided over-riding
effect and have clearly laid down that notwithstanding anything inconsistent there with
contained in any other law for the time being in force relating to the conduct of elections
to the Panchayats or Municipalities or any incidental matter thereto shall stand repealed.
Therefore, the clear mandate of the legislature have saved the actions under S. 143 to the
extent that any other law which is inconsistent with this law shall stand repealed and only
that action taken under the corresponding provisions of any State law which were in force
at that time, those actions shall only be saved and not otherwise. Therefore, the saving
clause is very limited if any action has been taken under the earlier legislation before
coming into force of Act 19 of 1994, those actions would be saved after the coming into
force of Act 19 of 1994. The mandate of legislature is categorically clear in view of Ss.
142 and 143 and it admits of no two opinion in the matter. The Courts should be very
slow to interfere with the mandates of the legislature unless there are compelling reasons
for doing so. Harmonious reading of both the provisions will be limited to the extent of S.
11 of the Act 19 of 1994. S. 142 of Act 19 of 1994 clearly contemplates that the earlier
laws which are inconsistent with the Act shall stand repealed and it is saved to the limited
extent as provided under S. 143. Therefore, if both the provisions i.e. S. 208 of Act 9 of
1994 and S. 11 of Act 19 of 1994 can be read harmoniously to show that the
disqualification which are mentioned for holding office of profit are that an incumbent
should not be an employee or a salaried person under the Panchayat, or under
Municipality, or under the State Government; or the Central Government. To this extent
there is identity between the two provisions and no other disqualification have been saved
and it has ben subsequently repealed and it is more than apparent from Ss. 142 and 143 of
the Act 19 of 1994.
2006 (1) Rec Civ R 811 (Punj and Har), Reversed. (Paras 6, 7, 9, 10)
The disqualification are only mentioned in S. 208 of the Act 9 of 1994 and the intention
of the legislature is very clear and S. 11 of the Act of 1994 being in later point of time
stating therein what are the disqualification, therefore, the disqulification mentioned in S.
11 of the Act 19 of 1994 will prevail and not the disqualification mentioned in S. 208 of
Act 9 of 1994. The disqualification mentioned in S. 208 which are consistent with S. 11
of Act 19 of 1994 can only survive and not other disqualification. Thus the appellant
while serving in the Marketing Committee cannot be held to be holding the office of
@page-SC2089
profit for contesting election of Sarpanch, Gram Panchayat. (Paras 12, 13)
2003 AIR SCW 6638 : AIR 2004 SC 1006(Ref.) 5, 11
AIR 1990 SC 104 (Ref.) 4, 8
AIR 1989 SC 159 (Ref.) 5
AIR 1986 SC 1011 (Ref.) 5
AIR 1981 SC 670 (Ref.) 5
AIR 1971 SC 815 : 1971 Cri LJ 680 (Ref.) 10
AIR 1964 SC 1870 (Ref.) 4, 9
K.V. Vishwanathan, Gagan Gupta, Jatinder Singla, Parmanand Gaur, for Appellant;
Paramjit Singh Patwalia, Sr. Advocate, Vikas Mahajan, Amanpreet Singh Rahi, Devesh
Tripathi, Bhaskar Y. Kulkarni, for Respondents.
Judgement
A. K. MATHUR, J. :- This appeal is directed against the order dated 26-10-2006 passed
by learned Single Judge of the Punjab and Haryana High Court whereby the learned
Single Judge held that the appellant-Som Lal was holding the whole-time salaried office
of a statutory body as he was on the rolls of the Market Committee, Sirsa as Fireman on
29-6-2003 and he was disqualified from contesting the election as Sarpanch, Gram
Panchayat, Village Dhobra on 29-6-2003. Therefore, he has been rightly held to be
disqualified by the Election Tribunal. Accordingly, the learned Single Judge upheld the
order of the Election Tribunal whereby the election of the appellant was set aside.
Aggrieved against this order dated 26-10-2006 passed by the learned Single Judge of the
High Court of Punjab and Haryana the present appeal was filed.
2. Brief facts which are necessary for disposal of this appeal are that the appellant
contested the election of Sarpanch on 29-6-2003 of Village Dhobara, Tehsil Pathankot,
and the appellant was elected and the opponent- Vijay Laxmi lost. Total votes polled
-800; 411 votes were polled in favour of the appellant- Som Lal; 376 votes were polled in
favour of Vijay Laxmi and 13 votes were cancelled. Hence, the appellant was declared
elected. The election of the appellant was challenged by the respondent-Vijay Laxmi by
filing an election petition. The main ground taken by the respondent was that the
appellant was working as a Fireman in the Haryana State Agricultural Marketing Board
and he was posted at Sirsa. Therefore, he was disqualified from contesting the election as
he was holding the office of profit. The plea of the appellant was that he was an employee
of the Haryana State Agricultural Marketing Board but he had left the job about 7-8 years
prior to the conduct of the election. Therefore, he did not suffer from any disqualification.
The respondent contended before the Election Tribunal that as per Section 208 (l)(g) of
the Punjab Panchayati Raj Act, 1994 (Punjab Act 9 of 1994) [hereinafter to be referred to
as "the Punjab Act 9 of 1994"], a person who is a whole-time salaried employee of any
local authority, Statutory Corporation or Board or a Co-operative Society registered under
the Punjab Co-operative Societies Act, 1961 or of the State Government or the Central
Government, is disqualified for being chosen as and for being a member of a Panchayat
and since the appellant was an employee of the Market Committee, therefore, he was
disqualified. As against this, it was contended by the appellant that Section 11 of the
Punjab State Election Commission Act, 1994( Punjab Act 19 of 1994) [hereinafter to be
referred to as "the Punjab Act No. 19 of 1994] which came into force with effect from
19th September, 1994 after the Punjab Act 9 of 1994 which came into force with effect
from 21.4.1994, which deals with disqualification, says that a person shall be disqualified
for being chosen as and for being a member of a Panchayat' or a Municipality if he holds
an office of profit under a Panchayat or a Municipality; or he holds an office of profit
under the Government of India or any State Government and not for holding office of
profit under local authority and being a member of the Marketing Board. Therefore, as
per Section 11 of the Act of 19 of 1994 an incumbent is not disqualified to contest the
election. The Election Tribunal after recording necessary evidence found that the
appellant was an employee of the Haryana State Agricultural Marketing Board, Sirsa and
therefore, he was disqualified from contesting the election for Sarpanch, Gram Panchayat
of village Dhobra. Hence, the Election Tribunal by order dated 13-12-2004 set aside the
election of the appellant before us and allowed the election petition of the respondent-
Vijay Laxmi and declared her as elected to the Office of Sarpanch. Aggrieved against this
order the appellant filed an appeal before the High Court of Punjab and Haryana. Since
@page-SC2090
there was a conflict between the two provisions, learned Single Judge referred the matter
to the Division Bench for adjudicating the following question of law :
" Whether election of Sarpanch/ Member of a Gram Panchayat can be set aside on the
basis of disqualifications contemplated under section 208 of the Punjab Panchayati Raj
Act, 1994 or it can be set aside only on the basis of disqualifications enumerated in
Section 11 of the Punjab State Election Commission Act, 1994?"
Learned Division Bench answered the question by order dated 22-1-2006 in this very
case which reads as follows :
"In view of what has been discussed above, we hold that a person shall be disqualified for
being chosen and for being a member of a Panchayat if, he incurs any of the
disqualifications enlisted in Section 208 of the Punjab Panchayati Raj Act, 1994 and/ or
section 11 of the Punjab State Election Commission Act, 1994."
3. Now, the question before us is whether the disqualifications enumerated in Section 208
of the Act 9 of 1994 shall prevail or the disqualifications mentioned in Section 11 of the
Act 19 of 1994. Both the provisions are quoted below for the sake of convenience.
"208. Disqualification for Membership. (1) A person shall be disqualified for being
chosen as and for being a member of a Panchayat if, -
(a) he is so disqualified by or under any law for the time being in force for the purposes
of elections to the Legislature of the State :
Provided that no person shall be disqualified on the ground that he is less than twenty-
five years of age, if he has attained the age of twenty-one years;
(b) has been found guilty of any corrupt practice in any election of a Gram Panchayat,
Panchayat Samiti or Zilla Parishad;
(c) has been convicted of any offence involving moral turpitude or an offence implying of
any defect of a Sarpanch or Panch or Gram Panchayat or member of a Panchayat Samiti
or Zila Parishad, unless a period of five years has elapsed since his conviction; or
(d) has been convicted of an election offence; or
(e) has been ordered to give security for good behaviour under section 110 of the Code of
Criminal Procedure, 1973; or
(f) has been notified as disqualified for appointment as public servant except on medical
grounds; or
(g) is a whole-time salaried employee of any local authority, Statutory Corporation or
Board or a Co-operative Society registered under the Punjab Co-operative Societies Act,
1961, or of the State Government or the Central Government; or
(h) is registered as a habitual offender
xx xx xx
11. Disqualifications for membership of a Panchayat or a Municipality. - A person shall
be disqualified for being chosen as, and for being a member of a Panchayat or a
Municipality,-
(a) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign
State, or is under any acknowledgment of allegiance or adherence to a foreign State; or
(b) if he is of unsound mind and stands so declared by a competent court; or
(c) if he is an undischarged insolvent; or
(d) if he has, in proceedings for questioning the validity or regularity of an election, been
found guilty of any corrupt practice; or
(e) if he has been found guilty of any offence punishable under Section 153A or Section
171E or section 171F or section 376 or section 376A or section 376B or section 376C or
section 376D or section 498A or section 505 of the Indian Penal Code, 1860 or any
offence punishable under Chapter XIII of this Act unless a period of six years has elapsed
since the date of such conviction; or
(f) if he holds an office of profit under a Panchayat or a Municipality; or
(g) if he holds an office of profit under the Government of India or any State
Government; or
(h)xx xx xx"
Both the provisions bearing on the subject have been quoted and the disqualifications
given in both the provisions make it clear that so far as Act 9 of 1994 is concerned, there
any person holding office of profit under the local authority, statutory corporation or
Board or a Co-operative society or under the State Government or the Central
Government has been disqualified whereas
@page-SC2091
under Section 11 (f) and (g) of Act 19 of 1994, a person shall be disqualified for being
chosen as and for being a member of a Panchayat or a Municipality if he holds an office
of profit under a Panchayat or a Municipality; or under the Government of India or any
State Government. Therefore, it is to be seen whether this disqualification which has
come into force under the Act 19 of 1994 i.e. on 19.9.1994 will prevail or the earlier
disqualifications as prescribed in Section 208 of Act 9 of 1994 will prevail. In this
connection, the important provisions which have substantial bearing on the subject are
Sections 142 and 143 of the Act 19 of 1994 are relevant which read as under :
"142. Overriding effect. - The provisions of this Act shall have overriding effect
notwithstanding anything inconsistent therewith contained in any other law for the time
being in force relating to the conduct of elections to the Panchayats or Municipalities or
any incidental matter thereto.
143. Repeal and savings. - The provisions of any State Law corresponding to the
provisions of this Act are hereby repealed :
Provided that such repeal shall not affect-
(a) the previous operation of the corresponding provisions of any State Law so repealed
or anything duly done or suffered thereunder; or
(b) any right, privilege, obligation or liability occurred, accrued or incurred under the
corresponding provisions of any State Law so repealed; or
(c) any penalty, forfeiture or punishment incurred in respect of any offence committed
against the corresponding provisions of any State Law so repealed; or
(d) any legal proceedings, investigation or remedy in respect of any such right, privilege,
obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such legal
proceedings, investigation or remedy may be instituted or continued or enforced and any
such penalty, forfeiture or punishment may be imposed as if this Act had not been passed.
(2) Notwithstanding such repeal, anything done or any action taken under the
corresponding provisions of any State Law so repealed (including any notification, order,
notice issued, application made or permission granted, if any) which is not inconsistent
with the provisions of this Act, shall be deemed to have been done or taken under the
corresponding provisions of this Act, as if this Act was in force at the time, such thing
was so done or action so taken and shall continue to be in force unless and until
superseded by anything done or any action taken under this Act."
4
. Learned counsel for the appellant submitted before us that when disqualifications have
been prescribed in both the Acts i.e. Act 9 of 1994 and Act 19 of 1994 and the Act 19 of
1994 being subsequent in point of time would prevail specially when there is section 142
which has laid down the overriding effect notwithstanding anything contained in any
other law which is inconsistent with this Act shall prevail and similarly, in Section 143 it
clearly contemplates that all other provisions of State law corresponding to the provisions
of this Act shall stand repealed, save to the extent that the provisions which are not
inconsistent with this Act. Therefore, in view of Sections 142 and 143 of the Act 19 of
1994, the overriding effect of the subsequent legislation is that the legislature in its
wisdom while enacted the Act 19 of 1994 which has come into force with effect from
19.9.1994 much after the Act 9 of 1994, intended that this provision shall prevail
especially when it has the overriding effect and the repeal is specific. Therefore, the clear
intention of the legislature should be given effect to. In support of his contention, learned
counsel for the appellant invited our attention to the decision of this Court in Hyderabad
Chemical and Pharmaceutical Works Ltd. etc. v. State of Andhra Pradesh and Ors.
([1964] 7 S.C.R. 376) and in Ratan Lal Adukia v. Union of India [(1989) 3 SCC 537].
AIR 1964 SC 1870
5. As against this, Mr. P. S. Patwalia, learned senior counsel for the respondents submitted
that there is no express repeal but it is only by implication and submitted that both the
Acts can be read harmoniously and in support of his contention, invited our attention to
the following decisions of this Court.
i. (2003) 12 SCC 274, Kishorebhai Khamanchand Goyal v. State of Gujarat and Anr.
2003 AIR SCW 6638
ii. 1989 Supp (1) SCC 589, Jugal Kishore v. State of Maharashtra and Ors. AIR 1989 SC
159
@page-SC2092
iii. (1986) 2 SCC 209, Mary Roy and Ors. v. State of Kerala and Ors. AIR 1986 SC
1011
iv. (1980) 4 SCC 435, M/s. Jain Ink Manufacturing Company v. Life Insurance
Corporation of India and Anr. AIR 1981 SC 670
vi. Principles of Statutory Interpretation [11th Edn. 2008] By Justice G.P.Singh (Chapter
7, Synopsis 4 at page 637-639)
6. Both the Acts i.e. Act 9 of 1994 and Act 19 of 1994 came into being in view of
seventy-third amendment and seventy-fourth amendment of the Constitution of India to
provide more teeth to local self government. By this amendment under Part IX of the
Constitution, Article 243 was amended. Likewise by inserting Part IXA, Municipalities
were also strengthened. Self-governance were given to the local bodies. As a result of
these seventy-third and seventy-fourth amendments, The Punjab Panchayati Raj Act,
1994(Punjab Act 9 of 1994) and the Punjab State Election Commission Act, 1994 (Punjab
Act No. 19 of 1994) were enacted. The preamble of The Punjab Panchayati Raj Act, 1994
( Punjab Act 9 of 1994) reads as under :
" Whereas it is expedient to replace the present enactments by a comprehensive new
enactment to establish a three-tier Panchayati Raj system in the State of Punjab with
elected bodies at the village, Block and District levels, in keeping with the provisions of
the Constitution (Seventy-third Amendment) Act, 1992 for greater participation of the
people and more effective implementation of rural development and Panchayati Raj
system;
Likewise the Punjab State Election Commission Act, 1994 was enacted and the preamble
reads as under :
"An Act to provide for the constitution of the State Election Commission and for vesting
the superintendence, direction and control of the preparation of election rolls for, and the
conduct of all elections to the Panchayats and Municipalities in the State of Punjab, in the
State Election Commission, and to provide for all matters relating to, or ancillary or in
connection with the elections to the Panchayats and Municipalities, in terms of the
provisions of Parts DC and IX-A of the Constitution of India."
This is also a fact that the Act 9 of 1994 came into effect on 21-4-1994 and the Act 19 of
1994 came into effect on 19-9-1994. Act 19 of 1994 is definitely later in point of time and
hereunder Section 11 (f) and (g) the disqualifications have been prescribed. Though
similar disqualifications existed under Section 208 of the Act 9 of 1994 but subsequently
the legislature in its wisdom has reduced the disqualifications and confined only to the
area that one should not hold office of profit under a Panchayat or a Municipality or
under the Government of India or any State Government. Thus, the legislature in its
wisdom has not considered it proper to continue with the disqualification of being an
employee of any local authority, Statutory Corporation or Board or a Co-operative
Society. Had that been the intention of the legislature then perhaps they would have
specifically provided the disqualifications under Section 11 of the Act 19 of 1994.
Section 11 clearly says that a person shall be disqualified for being chosen as, and for
being a member of a Panchayat or a Municipality if he holds an office of profit under a
Panchayat or a Municipality; or if he holds an office of profit under the Government of
India or any State Government; whereas Section 208(g) says a person shall be
disqualified for being chosen as, and for being a member of a Panchayat or a
Municipality if he is a wholetime salaried employee of any local authority, Statutory
Corporation or Board or a Cooperative Society registered under the Punjab Co-operative
Societies Act, 1961, or of the State Government or the Central Government. But in the
subsequent Act 19 of 1994 the area of disqualification has been narrowed down. Since
the Act 19 of 1994 is subsequent in point of time and it also has the provisions of
Sections 142 and 143 which clearly contemplate that it shall have the complete
overriding effect, reading of Section 142 makes it clear that the legislature were aware of
the earlier disqualification and subsequently they have inserted the disqualifications
under sub-sections (f) and (g) of Section 11 so far as the office of profit is concerned and
provided overriding effect and have clearly laid down that notwithstanding anything
inconsistent therewith contained in any other law for the time being in force relating to
the conduct of elections to the Panchayats or Municipalities or any incidental matter
thereto shall stand
@page-SC2093
repealed. Therefore, the mandate of the legislature appears on the face of it very clear and
they have saved the actions under Section 143 to the extent that any other law which is
inconsistent with this law shall stand repealed and only that action taken under the
corresponding provisions of any State law which were in force at that time, those actions
shall only be saved and not otherwise. Therefore, the saving clause is very limited if any
action has been taken under the earlier legislation before coming into force of Act 19 of
1994, those actions would be saved after the coming into force of Act 19 of 1994. The
mandate of legislature is categorically clear in view of Sections 142 and 143 and it admits
of no two opinion in the matter. The courts should be very slow to interfere with the
mandates of the legislature unless there are compelling reasons for doing so. In the
present case, the clear mandate of the legislature was that anything which is inconsistent
with the Act 19 of 1994 shall be deemed to have been repealed leaves no room for us to
take a contrary view of the matter. With respect we cannot agree with the view taken by
the Division Bench of the High Court that both the provisions can be read harmoniously
i.e. Section 11 of Act 19 of 1994 read with Section 208 of Act 9 of 1994 but we regret it
cannot be. Harmonious reading of both the provisions will be limited to the extent of
Section 11 of the Act 19 of 1994. When Section 11 of Act 19 of 1994 clearly
contemplates that these are the only disqualifications mentioned in sub-sections (f) and
(g), which are already present in Section 208 of Act 9 of 1994, beyond that it cannot be
read. If Section 208 of Act 9 of 1994 lays down further disqualifications then those
disqualifications will run counter to the disqualifications as mentioned in Section 11 of
Act 19 of 1994. If Section 208 of Act 9 of 1994 is inconsistent to the extent of Section 11
of Act 19 of 1994, then to this extent the provisions of Section 208 of Act 9 of 1994
cannot be read. Since there are only four disqualifications mentioned in Section 11 of Act
19 of 1994, the rest of the disqualifications cannot be imported by implication of the Act
9 of 1994. Mr. Patwalia, learned senior counsel for the respondents tried to persuade us
that the theory of not expressly repealed by implication should be read into but we regret,
it cannot be. The intention of the legislature is clear and there is no reason why the
intention of the legislature be not given effect to. In fact the Division Bench of the Punjab
and Haryana High Court held that Section 11 should be read with Section 208; that means
Section 208 can survive to the extent that it is consistent with Section 11 of Act 19 of
1994. Rest part of section 208 i.e. a person who is holding office of profit under local
authority, Statutory Corporation, Board or Co-operative Society will not be disqualified.
Therefore, if a person holds an office of profit under the local authority, Statutory
Corporation or Board or a Co-operative Society cannot by implication be said to be a
person disqualified under the Act. These provisions can be read harmoniously to the
extent that if a person is holding office under the Panchayat or a Municipality, or under
the Government of India or any State Government, to that extent it will be deemed to be
office of profit. If he holds an office of profit under any other organization, like local
authority, Statutory Corporation or Board or a Co-operative Society, that will not be
office of profit so as to disqualify him to be chosen as and for being a member of a
Panchayat.
7. Mr. Patwalia, learned senior counsel for the respondents invited our attention to
Chapter VII at pg. 637 of the Principles of Statutory Interpretation (11th Edn.2008) by
Justice G. P. Singh, which reads as under :
"The use of any particular form of words is not necessary to bring about an express
repeal. All that is necessary is that the words used show an intention to abrogate the Act
or provision in question. The usual form is to use the words' is or are hereby repealed' and
to mention the Acts sought to be repealed in the repealing section or to catalogue them in
a Schedule. The use of words ' shall cease to have effect', is also not uncommon. When
the object is to repeal only a portion of an Act words 'shall be omitted' are normally used.
The legislative practice in India shows that 'omission' of a provision is treated as
amendment which signifies deletion of that provision and is not different from repeal. It
has been held that "there is no real distinction between repeal and an amendment." It has
also been held that" where a provision of an Act is omitted by an Act and the said Act
simultaneously reenacts a new provision which substantially covers the field occupied by
the repealed provision with certain modification, in that event such re-enactment is
regarded having
@page-SC2094
force continuously and the modification Or changes are treated as amendment coming
into force with effect from the date of enforcement of re-enacted provision." Similarly,
our attention was invited to a paragraph at page 639. There it has been observed as
follows :
"The Legislature sometimes does not enumerate the Acts sought to be repealed, and only
says that" all provisions inconsistent with this Act" are here by repealed. With respect to
such a repealing provision, it has been said that it merely substitutes for the uncertainty of
the general law an express provision of equal uncertainty; and in determining whether a
particular earlier provision is repealed by such a repealing provision on the ground of
inconsistency with it, the same provisions which are applicable in determining a question
of implied repeal have to be applied."
At page 640, under the heading Implied repeal it has been observed as follows :
There is a presumption against a repeal by implication; and the reason of this rule is
based on the theory that the Legislature while enacting a law has a complete knowledge
of the existing laws on the same subject-matter, and therefore, when it does not provide a
repealing provision, it gives out an intention not to repeal the existing legislation. When
the new Act contains a repealing section mentioning the Acts which it expressly repeals,
the presumption against implied repeal of other laws is further strengthened on the
principle expressio unius est exclusio alterius. Further, the presumption will be
comparatively strong in case of virtually contemporaneous Acts. The continuance of
existing legislation, in the absence of an express provision of repeal, being presumed, the
burden to show that there has been a repeal by implication lies on the party asserting the
same. The presumption is, however, rebutted and a repeal is inferred by necessary
implication when the provisions of the later Act are so inconsistent with or repugnant to
the provisions of the earlier Act "that the two cannot stand together"."
As already mentioned above it is very clear that Section 142 clearly contemplates that the
earlier laws which are inconsistent with the Act shall stand repealed and it is saved to the
limited extent as provided under Section 143. Therefore, if both the provisions i.e.
Section 208 of Act 9 of 1994 and Section 11 of Act 19 of 1994 can be read harmoniously
to show that the disqualifications which are mentioned for holding office of profit are that
an incumbent should not be an employee or a salaried person under the Panchayat, or
under Municipality, or under the State Government; or the Central Government, To this
extent there is identity between the two provisions and no other disqualifications have
been saved and it has been subsequently repealed and it is more than apparent from
Sections 142 and 143 of the Act 19 of 1994.
8
. In Ratan Lal Adukia v. Union of India [(1989) 3 SCC 537] it has been held as follows :
AIR 1990 SC 104, Para 11
"The doctrine of implied repeal is based on the postulate that the legislature which is
presumed to know the existing state of the law did not intend to create any confusion by
retaining conflicting provisions. Courts in applying this doctrine are supposed merely to
give effect to the legislative intent by examining the object and scope of the two
enactments. But in a conceivable case, the very existence of two provisions may by itself,
and without more, lead to an inference of mutual irreconcilability if the later set of
provisions is by itself a complete code with respect to the same matter. In such a case the
actual detailed comparison of the two sets of provisions may not be necessary. It is a
matter of legislative intent that the two sets of provisions were not expected to be applied
simultaneously."
9
. In Hyderabad Chemical and Pharmaceutical Works Ltd. etc. v. State of Andhra Pradesh
and Ors. ([1964] 7 SCR 376), it was held as follows : AIR 1964 SC 1870
"By virtue of Entry 84 List I of the VII Schedule to the Constitution no charge could be
levied on the manufacture of medicinal preparations except by the Union of India and
since the 1955 Act is a law made otherwise by Parliament within the meaning of Art. 277
the duties and other charges which used to be levied by the State in connection with
medicinal preparations could no longer be levied by it. Further the effect of S. 21 of the
Act is that so far as the Hyderabad Act applied to the use of alcohol in the manufacture of
medicinal and toilet preparations, the Hyderabad Act must be deemed to have been
repealed."
@page-SC2095
Therefore, it clearly transpires that by virtue of subsequent amendment of the law made
by the Parliament, the Hyderabad Act automatically stood repealed. Similar is the
position here also that the subsequent Act 19 of 1994 which has come at later point of
time, repeals the provisions of the Act 9 of 1994 so far as it is inconsistent with the Act 19
of l994.
10
. As against this, learned senior counsel for the respondents, invited our attention to a
decision of this Court in Municipal Corporation of Delhi v. Shiv Shankar [1971(1) SCC
442] wherein it has been held as follows : AIR 1971 SC 815, Para 5
"As the Legislature must be presumed in deference of the rule of law to Intend to enact
consistent and harmonious body of laws, a subsequent legislation may not be too readily
presumed to effectuate a repeal of existing statutory laws in the absence of express or at
least clear and unambiguous indication to that effect."
But in the present case, the intention of the Legislature is more than apparent that the
existing legislation as subsequently held under Section 142 of the Act 19 of 1994 that this
Act will have overriding effect on all other laws in the State and likewise, under Section
143 there is repeal. Therefore, there is no question of ambiguity in the matter of intention
of the legislature as it is very clear.
11
. In Kishorebhai Khamanchand Goyal v. State of Gujarat and Anr. [(2003) 12 SCC 274]
their Lordships held as follows : 2003 AIR SCW 6638, Para 6
"There is a presumption against repeal by implication. The reason is that the legislature
while enacting a law is presumed to have complete knowledge of the existing laws on the
same subject-matter, and therefore, when it does not provide a repealing provision the
intention is clear not to repeal the existing legislation. Besides when the new Act contains
a repealing section mentioning the Acts which it expressly repeals, the presumption
against implied repeal of other laws is further strengthened on the principle of expressio
unius (personae vel rei) est exclusion alterius. (The express intention of one person or
thing is the exclusion of another.) The continuance of existing legislation, in the absence
of an express provision of repeal being presumed, the burden to show that there has been
repeal by implication lies on the party asserting the same. The presumption is, however,
rebutted and a repeal is inferred by necessary implication when the provisions of the later
Act are so inconsistent with or repugnant to the provisions of the earlier Act that the two
cannot stand together, But, if the two can be read together and some application can be
made of the words in the earlier Act, a repeal will not be inferred, The necessary
questions to be asked are :
(1) Whether there is direct conflict between the two provisions.
(2) Whether the legislature intended to lay down an exhaustive Code in respect of the
subject-matter replacing the earlier law.
(3) Whether the two laws occupy the same field."
As already mentioned there is no necessary implication. In this case, the intention of the
legislature is more than apparent.
12. Learned counsel for the appellant has tried to submit that in fact the incumbent was
virtually not holding the office of profit as he ceased to be an employee for the last 8-9
years. We do not want to go into this controversy as we have already decided the question
of law involved in the present case that a salaried employee of any local authority,
statutory corporation or Board or a Co-operative Society cannot be held to have held the
office of profit under Section 11 of the Act 19 of 1994. Therefore, we need not to go into
the factual controversy. Mr. P. S. Patwalia, learned senior counsel for the respondents
tried to persuade us that we should look to the scope of both the Acts. The
disqualifications are only mentioned in Section 208 of the Act 9 of 1994 and the intention
of the legislature is very clear and Section 11 of the Act of 1994 being in later point of
time stating therein what are the disqualifications, therefore, the disqualifications
mentioned in Section 11 of the Act 19 of 1994 will prevail and not the disqualifications
mentioned in Section 208 of Act 9 of 1994. The disqualifications mentioned in Section
208 which are consistent with Section 11 of Act 19 of 1994 can only survive and not
other disqualifications.
13. As a result of our above discussions, we are of opinion that the view taken by the
learned Single Judge on the basis of the judgment of the Division Bench of the High
Court of Punjab and Haryana cannot be sustained. Consequently, we allow this appeal,
@page-SC2096
peal, set aside the judgment and order of the learned Single Judge and hold that the
appellant while serving in the Marketing Committee cannot be held to be holding the
office of profit. There would be no order as to costs.
Appeal allowed.
AIR 2008 SUPREME COURT 2096 "Collector and Dist. Magistrate v. S. Sultan"
Criminal Appeal Nos. 567 with 568, 570, 569 and 571 of 2008 (arising out of SLP (Cri.)
Nos. 993 with 1308, 2089, 2090 and 2091 of 2007), D/- 31 -3 -2008.
Collector and Dist. Magistrate and Ors. v. S. Sultan.
(A) A.P. Prevention of Dangerous Activities of Bootleggers, Dacoits, Drag Offenders,
Goondas, Immoral Traffic Offenders and Land Grabbers Act (1 of 1986), S.2(g), S.3 -
DETENTION - Detention on ground that detenue is Goonda in terms of S.2(g) - Validity
- Conclusion that detenue is Goonda - Not open to challenge on ground there is reference
to other provisions - There may he cases where offences may be punishable under
different statutes - Reference therefore has to be made to them when giving details of an
incident - That will not be a factor to render detention invalid.
W.P. No. 158290 of 2006, D/-13-09-2006 (AP), Reversed. (Para 9)
(B) Constitution of India, Art.22(5) - PREVENTIVE DETENTION - WORDS AND
PHRASES - Preventive detention - Expressions 'Pub lie order', 'Law and order' and
'Security of the State' - Distinction between - Test to determine.
'Public Order', 'law and order' and the Security of the State' fictionally draw three
concentric circles, the largest representing law and order, the next representing public
order and the smallest representing security of the State. Every infraction of law must
necessarily affect order, but an act affecting law and order may not necessarily also affect
the public order. Likewise, an act may affect public order, but not necessarily the security
of the State. The true test is not the kind, but the potentiality of the act in question. The
true distinction between the areas of law and order and public order lies not merely in the
nature or quality of the act, but in the degree and extent of its reach upon society. Acts
similar in nature, but committed in different contexts and circumstances, might cause
different reactions. In one case it might affect specific individuals only, and therefore
touches the problem of law and order only, while in another it might affect public order.
The act by itself, therefore, is not determinant of its own gravity. In its quality it may not
differ from other similar acts, but in its potentiality, that is, in its impact on society, it may
be very different. The two concepts have well defined contours, it being well established
that stray and unorganized crimes of theft and assault are not matters of public order since
they do not tend to affect the even flow of public life. Infractions of law are bound in
some measure to lead to disorder but every infraction of law does not necessarily result in
public disorder. (Paras 12, 13, 14, 15, 17, 18)
AIR 1980 SC 1111 : 1980 Cri LJ 793 (Ref.) 18
AIR 1974 SC 156 : 1975 Cri LJ 543 (Ref.) 18
AIR 1974 SC 1214 : 1974 Cri LJ 917 (Ref.) 16
AIR 1973 SC 197 : 1974 Cri LJ 395 (Ref.) 16
AIR 1972 SC 665 : 1972 Cri LJ 482 (Ref.) 15
AIR 1972 SC 1656 : 1972 Cri LJ 1006 (Ref.) 13
AIR 1972 SC 1749 (Ref.) 15
AIR 1970 SC 852 : 1970 Cri LJ 852 (Ref.) 15
AIR 1970 SC 1228 : 1970 Cri LJ 1136 (Ref.) 15, 16
AIR 1966 SC 740 : 1966 Cri LJ 608 (Ref.) 14
Mrs. D. Bharathi Reddy, for Appellants; Ms. T. Anamika, for Respondent.
* W. P. No. 158290 of 2006, D/- 13-9-2006 (AP).
Judgement
1. Dr. ARIJIT PASAYAT, J. :-Leave granted in each case.
2. Challenge in these appeals is to the order passed in each case by a Division
@page-SC2097
Bench of the Andhra Pradesh High Court in writ petitions filed for quashing the order of
detention passed by the Collector and District Magistrate, Nellore, under Sections 3(1),
3(2) read with Section 2(a) and (g) of A.P. Prevention of Dangerous Activities of
Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land
Grabbers Act, 1986 (in short the 'Act') in respect of Shri Pralayakaveri Bhaskar. Sri
Pamanji Chenna Reddy, Sri Pralayakaveri Gnanaiah, Sri Voila Babu and Sri Pamanji
Babu (each described as 'detenu' hereinafter)
3. Respondent claiming to be a friend of the detenu challenged the validity of the order
stating it to be illegal, arbitrary, unconstitutional and violative of Article 22 of the
Constitution of India, 1950 (in short the 'Constitution'). The main ground of challenge
was that the grounds of detention referred to certain acts which are punishable under the
Indian Penal Code, 1860 (in short 'IPC'), as well as the Explosive Substances Act, 1908
(in short 'Explosive Act') and, therefore, shows non-application of mind.
4. It was the stand of the writ petitioner who had filed the Habeas Corpus Petition that the
instances referred to do not affect the public order at all and in any event since some of
the grounds related to offences punishable under the Explosive Act, the detention under
the Act was impermissible. The High Court accepted the stand and quashed the order of
detention.
5. In support of the appeals, learned counsel for the appellants submitted that Section 2(g)
of the Act defines a 'goonda'. Undisputedly, all the instances detailed in the order of
detention related to offences punishable under IPC and also under some of the provisions
of the Explosive Act. Therefore, the impugned judgment of the High Court is
indefensible.
6. In response, learned counsel for the respondent submitted that some of the instances
are not relatable to offences punishable under IPC and, therefore, Section 2(g) of the Act
has no application. In any event, it is submitted that most of the incidents highlighted are
stale incidents and do not in any manner constitute violation of public order.
7. Section 2(g) of the Act reads as follows :
"Goondas means a person, who either by himself or as a member of or leader of a gang,
habitually commits, or attempts to commit or abets the commission of offences
punishable under Chapter XVI or Chapter XVII or Chapter XXII of the Indian Penal
Code."
8. Undisputedly, in all the instances given in the grounds of detention, the indicated
offences are punishable under either Chapters XVI or XVII and/or XXII. In addition, in
certain instances reference has been made to offences punishable under the Explosive
Act.
9. Therefore, it is not correct as observed by the High Court that some of the grounds
related to offences punishable under Sections 3 and 5 of the Explosive Act only. It is
really not so. Even otherwise, all instances indicated are in respect of offences covered by
the definition of the expression 'goonda'. The test is whether the detenu is a "goonda" in
terms of Section 2(g) of the Act. Reference to other provisions does not affect that
conclusion. There may be cases where offences may be punishable under different
statutes. Inevitably, therefore, reference has to be made to them when giving details of an
incident. That will not be a factor to render detention invalid.
10. So far as the stand that incidents were stale incidents, it is to be noted that most of the
incidents highlighted are of November 2005. The order of detention was passed on
20.3.2006. The State Government approved the order of detention on 28.3.2006. The
Advisory Board confirmed the order of detention and based on the recommendation of
the Advisory Board, the Government confirmed the order of detention for a period of 12
months from the date of detention. That being so, it cannot be said that the order of
detention was based on stale incidents.
11. So far as the question as to whether the public order was involved, the grounds of
detention elaborately described the acts which created dangerous and terrorized situations
in the village and frequently disturbed public peace and public order because of the acts
of violence and danger was caused to the lives of the villagers. In all these instances
deadly weapons were used causing
@page-SC2098
injuries to various persons.
12. The crucial issue, therefore, is whether the activities of the detenu were prejudicial to
public order. While the expression 'law and order' is wider in scope inasmuch as
contravention of law always affects order. 'Public order' has a narrower ambit, and public
order could be affected by only such contravention which affects the community or the
public at large. Public order is the even tempo of life of the community taking the country
as a whole or even a specified locality. The distinction between the areas of 'law and
order' and 'public order' is one of the degree and extent of the reach of the act in question
on society. It is the potentiality of the act to disturb the even tempo of life of the
community which makes it prejudicial to the maintenance of the public order. If a
contravention in its effect is confined only to a few individuals directly involved as
distinct from a wide spectrum of public, it could raise problem of law and order only. It is
the length, magnitude and intensity of the terror wave unleashed by a particular eruption
of disorder that helps to distinguish it as an act affecting 'public order' from that
concerning 'law and order'. The question to ask is : "Does it lead to disturbance of the
current life of the community so as to amount to a disturbance of the public order or does
it affect merely an individual leaving the tranquillity of the society undisturbed" ? This
question has to be faced in every case on its facts.
13. "Public order" is what the French call 'ordre publique' and is something more than
ordinary maintenance of law and order. The test to be adopted in determining whether an
act affects law and order or public order, is : Does it lead to disturbance of the current life
of the community so as to amount to disturbance of the public order or does it affect
merely an individual leaving the tranquillity of the society undisturbed ? (See Kanu
Biswas v. State of West Bengal (AIR 1972 SC 1656).
14
. "Public order" is synonymous with public safety and tranquility : "it is the absence of
disorder involving breaches of local significance in contradistinction to national
upheavals, such as revolution, civil strife, war, affecting the security of the State". Public
order if disturbed, must lead to public disorder. Every breach of the peace does not lead to
public disorder. When two drunkards quarrel and fight there is disorder but not public
disorder. They can be dealt with under the powers to maintain law and order but cannot
be detained on the ground that they were disturbing public order, Disorder is no doubt
prevented by the maintenance of law and order also but disorder is a broad spectrum,
which includes at one end small disturbances and at the other the most serious and
cataclysmic happenings. (See Dr. Ram Manohar Lohia v. State of Bihar and Ors. (1966
(1) SCR 709). AIR 1966 SC 740
15
. 'Public Order', 'law and order' and the 'security of the State' fictionally draw three
of the State. The true test is not the kind, but the potentiality of the act in question. One
act may affect only individuals while the other, though of a similar kind, may have such
an impact that it would disturb the even tempo of the life of the community. This does not
mean that there can be no overlapping, in the sense that an act cannot fall under two
concepts at the same time. An act, for instance, affecting public order may have an impact
that it would affect both public order and the security of the State. [See Kishori Mohan
Bera v. The State of West Bengal (1972 (3) SCC 845); Pushkar Mukherjee v. State of
West Bengal (1969 (2) SCR 635); Arun Ghosh v.State of West Bengal (1970 (3) SCR
288); Nagendra Nath Mondal v. State of WestBengal (1972 (1) SCC 498). AIR 1972 SC
1749
AIR 1970 SC 852
AIR 1970 SC 1228
AIR 1972 SC 665
16
. The distinction between 'law and order' and 'public order' has been pointed out
succinctly in Arun Ghosh's case (supra). According to that decision the true distinction
between the areas of 'law and order' and 'public order' is "one of degree and extent of the
reach of the act in question upon society". The Court pointed out that "the act by itself is
not determinant of its own gravity. In its quality it may not differ but in its potentiality it
may be very different". (See Babul AIR 1973 SC 197
AIR 1974 SC 1214
@page-SC2099
(AIR 1973 SC 197) Mitra alias Anil Mitra v. State of West Bengal and Ors. (1973 (1)
SCC 393, Milan Banik v. State of West Bengal (1974 (4) SCC 504).
17. The true distinction between the areas of law and order and public order lies not
merely in the nature or quality of the act, but in the degree and extent of its reach upon
society. Acts similar in nature, but committed in different contexts and circumstances,
might cause different reactions. In one case it might affect specific individuals only, and
therefore touches the problem of law and order only, while in another it might affect
public order. The act by itself, therefore, is not determinant of its own gravity. In its
quality it may not differ from other similar acts, but in its potentiality, that is, in its impact
on society, it may be very different.
18
. The two concepts have well defined contours, it being well established that stray and
unorganized crimes of theft and assault are not matters of public order since they do not
tend to affect the even flow of public life. Infractions of law are bound in some measure
to lead to disorder but every infraction of law does not necessarily result in public
disorder. Law and order represents the largest scale within which is the next circle
representing public order and the smallest circle represents the security of State. "Law
and order" comprehends disorders of less gravity than those affecting "public order" just
as "public order" comprehends disorders of less gravity than those affecting "security of
State". [See Kuso Sah v. The State of Bihar and Ors. (1974 (1) SCC 185, Harpreet Kaur
v. State of Maharashtra (1992 (2) SCC 177, T.K. Gopal v. State of Karnataka (2000 (6)
SCC 168, State of Maharashtra v. Mohd. Yakub (1980 (2) SCR 1158)]. In the instant
case, the incidents related to public order situations. AIR 1974 SC 156
AIR 1992 SC 835
2000 AIR SCW 1669
AIR 1980 SC 1111
19. Looked at from any angle, the impugned judgment of the High Court cannot be
sustained and is set aside. However, the period of detention as fixed in the detention order
is already over. It would be open to the State Government to consider whether there is a
need for detaining the detenu for the balance period covered by the original order of
detention.
20. The appeals are allowed.
Appeal allowed.
AIR 2008 SUPREME COURT 2099 "Zolba v. Keshao"
(From : Bombay)
-2008.
Zolba v. Keshao and Ors.
(A) Civil P.C. (5 of 1908), O.8, R.1 - PLEADINGS - Written statement - Delay in filing
of - Proviso to O.8, R.1 - Is directory - Use of word 'shall' not by itself sufficient to
indicate its mandatory nature - Delay could be condoned in exceptionally hard cases.
(B) Civil P.C. (5 of 1908), O.8, R.1 - PLEADINGS - PARTITION - POSSESSION -
INJUNCTION - Written statement - Delay in filing - Civil rait for partition and
possession - Misc. appeal filed against order of injunction at District Head Quarters -
Nonavailability of records as well as brief - Preventing defendant from filing written
statement in time - Sufficient to condone delay of 35 days. (Para 8)
2005 AIR SCW 3827 : AIR 2005 SC 3353 (Foll.) 7, 8
Judgement
1. ORDER :- Leave granted.
2. In spite of due service, no one has entered appearance on behalf of the respondents.
Even at the time of hearing of this appeal, the respondents had failed to appear to contest
the appeal.
3. This appeal is directed against the judgment and order dated 11th of October, 2006
passed by a learned Judge of the High Court of Judicature at Bombay, Nagpur Bench in
Writ Petition No. 4019 of 2006 by which the learned Judge had dismissed the writ
petition filed by the appellant for condoning the delay of 35 days in filing the written
statement in a suit for partition and separate possession of agricultural land filed by the
respondents.
4. We have heard the learned counsel appearing for the appellant and also examined the
impugned order of the High Court as well as of the trial court and also the application for
acceptance of the written statement, which was filed out of time.
5. Having heard the learned counsel for the appellant and after considering the materials
on record, we are of the view that in
@page-SC2100
the facts and circumstances of the present case, the High Court ought to have condoned
the delay in filing the written statement under Order 8 Rule 1 of the Code of Civil
Procedure (in short "the CPC"), even if some delay was caused in filing the same. The
appellant was the defendant in the suit for partition and separate possession of
agricultural land falling under Gat No.243 admeasuring 0.50 H.R. situated at Village
Mouza Kojai and house No. 139 situated at Village Gaijapur, Maharashtra (herein after
referred to as the 'suit properties'). The plaintiffs/respondent Nos. 1 to 5 have also sought
for a declaration to the effect that a Will dated 6th of June, 2003 executed in favour of the
respondent No. 6 (petitioner No. 2 in the High Court) was illegal, null and void and also
for permanent injunction restraining the appellant from making any construction over the
open land falling in house No. 139. A perusal of the record would show that the
respondents in the pending suit moved an application for grant of temporary injunction
against the appellant. By an order dated 29th of April, 2005, the Civil Judge, Junior
Division, Nagbhid granted temporary injunction in favour of the respondents. Feeling
aggrieved, the appellant has preferred a misc. civil appeal before the District Judge,
Chandrapur and the same is now pending decision. The appellant under bonafide belief
and on instruction of his counsel in the trial court could not file the written statement as
he was advised by his counsel that the written statement could be filed after the decision
of the appeal pending before the district court. However, when advised by his counsel,
the appellant filed an application for accepting the written statement on condonation of
delay. The learned Civil Judge, Junior Division, Nagbhid rejected the said application for
condoning the delay and refused to permit the appellant to file the written statement in
view of the proviso to Order 8, Rule 1 of the CPC. A review petition was filed which was
also rejected by an one line order. It is against this order a writ petition was moved before
the High Court, which was also dismissed. Before we look into the provisions under
Order 8 Rule 1 of the CPC, we need to record that the learned counsel appearing for the
appellant contended before us that the provisions for filing the written statement under
Order 8 Rule 1 of the CPC are directory in nature and therefore, it was open to the court
to condone the delay in filing the written statement and such written statement filed by
the appellant could be accepted. Before we consider whether the provisions under Order
8, Rule 1 of the CPC are mandatory or directory in nature, we need to consider the
provisions under Order 8, Rule 1 of the CPC which run as under :-
The defendant shall, within thirty days from the date of service of summons on him,
present a written statement of his defence :
Provided that where the defendant fails to file the written statement within the said period
of thirty days, he shall be allowed to file the same on such other day, as may be specified
by the Court, for reasons to be recorded in writing, but which shall not be later than
ninety days from the date of service of summons."
6. As noted herein earlier, the trial court as well as the High Court, relying on the proviso
to Order, 8 Rule 1 of the CPC, refused to permit the appellant to file the written statement
on the ground that such written statement was filed after 90 days from the date of service
of summons.
7
. Considering the facts and circumstances of the present case and the statements made in
the application for condoning the delay in filing the written statement, we are not in a
position to hold that the appellant was not entitled to file the written statement even after
the expiry of the period mentioned in the proviso to Order 8, Rule 1 of the CPC. After
reading the provisions, in particular the proviso to Order 8, Rule 1 of the CPC, we are
unable to hold that the provisions under Order 8 Rule 1 are mandatory in nature. In Salem
Advocate Bar Association, Tamil Nadu vs. Union of India [AIR 2005 SC 3353], it has
been clearly held that the provisions including the proviso to Order 8, Rule 1 of the CPC
are not mandatory but directory. It has been held in that decision that the delay can be
condoned and the written statement can be accepted even after the expiry of 90 days from
the date of service of summons in exceptionally hard cases. It has also been held in that
decision that the use of the word "shall" in Order 8, Rule 1 of theCPC by itself is not
conclusive to determine whether the provision is mandatory or directory. The use of the
word "shall" is ordinarily indicative of mandatory nature of the 2005 AIR SCW 3827
@page-SC2101
provision but having regard to the decision in that case, the same can be construed as
directory. In paragraph 21 of the said decision, this court observed as follows :-
"The use of the word 'shall' in Order 8, Rule 1 by itself is not conclusive to determine
whether the provision is mandatory or directory. We have to ascertain the object which is
required to be served by this provision and its design and context in which it is enacted.
The use of the word 'shall' is ordinarily indicative of mandatory nature of the provision
but having regard to the context in which it is used or having regard to the intention of the
legislation, the same can be construed as directory. The rule in question has to advance
the cause of justice and not to defeat it. The rules of procedure are made to advance the
cause of justice and not to defeat it. Construction of the rule or procedure which promotes
justice and prevents miscarriage has to be preferred. The rules or procedure are hand-
maid of justice and not its mistress. In the present context, the strict interpretation would
defeat justice."
8. Therefore, following the principles laid down in the decision, as noted hereinabove, it
would be open to the court to permit the appellant to file his written statement if
exceptional circumstances have been made out. It cannot also be forgotten that, in an
adversarial system, no party should ordinarily be denied the opportunity of participating
in the process of justice dispensation. Therefore, unless compelled by express and
specific language of the statute, the provisions of Order 8, Rule 1 of CPC or any
procedural enactment should not be construed in a manner, which would leave the court
helpless to meet extraordinary situations in the ends of justice. Keeping this principle as
laid down by this court in the case of Salem Advocate Bar Association (supra) in mind
and in view of our observations made herein above, we now look into the averments
made in the application for condoning the delay in filing the written statement. In the
application, it has been stated that on instruction of his counsel in the trial court, the
written statement was not filed within the period of limitation as the appellant was under
bona fide belief that the written statement shall be filed after the decision of the appeal by
the District Court. The written statement was, however, filed and the records of the case
were called from his lawyer who has been conducting his case in the appeal pending
before the District Court. The facts disclose that the misc. appeal has been filed against an
order of injunction before the District Court Chandrapur whereas the suit is pending
before the Civil Judge, Junior Division, Nagbhid. Since the appeal was pending, the
records of the appellant were then lying with the lawyer at Chandrapur. Therefore, the file
was not available with the lawyer of the appellant at Nagbhid and therefore, the written
statement could not be filed within the period of limitation. Such being the position, in
our view, the facts stated would constitute sufficient cause for condoning the delay in
filing the written statement and it has to be taken that the non-availability of records at
Nagbhid had prevented the appellant from filing the written statement within the period
of limitation which in our view was an exceptional case constituting sufficient cause for
condoning the delay in filing the written statement. In this view of the matter, in the facts
and circumstances of the case and in view of the reasoning given above, we hold that the
High Court as well as the trial court had erred in rejecting the application for condoning
the delay in filing the written statement. Accordingly, the application for condoning the
delay is allowed and the written statement filed by the appellant is accepted and
consequent thereupon, the impugned order which affirmed the order of the trial court
rejecting the application for condoning the delay in filing the written statement is set
aside. The trial court shall now proceed with the hearing of the suit and dispose of the
same positively within one year from the date of supply of a copy of this order to it.
9. For the reasons aforesaid, this appeal is allowed to the extent indicated above. There
will be no order as to costs.
Order accordingly.
AIR 2008 SUPREME COURT 2101 "Swarn K. Jain v. Ravi Mahajan"
(From : Jammu and Kashmir)*
Coram : 2 Dr. A. PASAYAT AND LOKESHWAR SINGH PANTA, JJ.
Swarn K. Jain v. Ravi Mahajan and Ors.
Specific Relief Act (47 of 1963), S.34 - DECLARATION OF TITLE - POSSESSION -
Suit for possession - Plaintiff claiming that defendants are trespassers - Defence of part
performance - Payment receipts produced by defendants admitted
@page-SC2102
by plaintiffs - Construction of boundary wall by defendants also admitted - However
plaintiff not giving details as to time of accrual of cause of action - Finding that omission
was purposeful and intentional - Proper - Denial of relief to plaintiff - Held not liable to
be interfered with. (Paras 8, 11)
Naresh Kaushik, Mrs. Lalita Kaushik, B. S. Methaila, Ms. Amita Kalkal, Parag Goyal
and Satish D., for Appellant; S.R. Singh, Sr. Advocate, Bimal Roy Jad and Ms. Sunita
Pandit, for Respondents.
* L.P.A. (C) No. 8 of 1993, D/- 19-7-1999 (Jand K).
Judgement
1. Dr. ARIJIT PASAYAT, J. :-Challenge in this appeal is to the judgment of a Division
Bench of the J. and K. High Court reversing the judgment of learned Single Judge of the
High Court.
3. Stand of the defendants who were the appellants before the High Court was that the
plaintiff by his own act and conduct is estopped from filing the suit in question seeking
possession from the defendants as he had pocketed the entire sale consideration and was
not entitled to claim relief. It was also submitted that the cause of action when arose was
not purposefully mentioned by the plaintiff and this omission is not inadvertent but is
willful. Reference was also made to Section 138 of the J. and K. Transfer of Property Act,
1977 (1920 AD). Plaintiffs advocate contended that the doctrine of part performance as
embodied in the Transfer of Property Act, 1882 (Central Act), does not find mention in
the Act and, therefore, defendants being trespassers claim of the plaintiff cannot be
defeated.
4. The High Court referred to three documents i.e. receipts dated 30.1.1974, 19.11.1973
and 23.3.1974. While appearing as PW-1, the plaintiff did not say a word as to how and
under what circumstances the documents were executed. He also admitted the execution
of the documents and construction of boundary wall having been done by the defendants.
However, he feigned ignorance as to when the construction was raised. The height of the
wall and the defendants having access to the passage were admitted. In the last line of the
statement he admitted that within one or two years after receipt of the money he saw the
defendants had constructed the boundary wall.
The Division Bench found that the omission to give details when the cause of action
arose to the plaintiff for maintaining the suit against the defendants was purposeful and
intentional. Had these facts been specifically pleaded, defendants would have
controverted them. Despite this omission, defendants pleaded their case and disputed the
claim of the plaintiff. No replication was filed. High Court referred to Section 138 of the
J. and K. Act which reads as follows :
"138. Transfer of immovable property after due registration -
(1) No transfer of immovable property except in a case governed by any special law to
the contrary, shall be valid unless and until it is in writing registered and (the registration
thereof has been completed in accordance with sub-section (3) of Section 61 of the
Registration Act, 1977).
(2) No Court shall entertain a suit for preemption in respect of transfer of any such
immovable property unless the transfer complies with the provision of sub-section (1).
(3) No person shall take possession of or commence to build or build on any land in
Province of Kashmir which has been transferred or has been contracted to be transferred
to him unless and until such transfer becomes valid under the provision of subsection (1).
(4) No person who has obtained a transfer of immovable property referred to in
subsection (1) shall apply for and obtain from any Revenue or Settlement Officer or
Court any alteration in any existing entry in any settlement record of paper, unless such
person produces before such officer or court a duly executed registered instrument (the
registration whereof has been completed in the manner specified in sub-section (1). And
no such officer or court shall alter or cause to be altered any such entry except upon the
production of an instrument registered in the aforesaid manner :
Provided that nothing in his section applied to a lease of agricultural land for one year or
to a lease of any other land for a period not exceeding seven years.
Provided also that nothing in sub-sections (3) and (4) shall be deemed to apply to
transfers by will or by any rule of intestate succession or by the operation of the law of
survivorship."
5. After referring to sub-section (1) of
@page-SC2103
Section 138 the High Court found that the transfer has to be in writing and registration
has to be completed in accordance with sub-section (3) of Section 61 of the Registration
Act (1977 BK). Sub-section (3) of Section 138 has no application to the province of
Jammu and it only applies to province of Kashmir.
It was noted that Section 138 (3) bars taking possession, building etc. only in the
province of Kashmir. This omission relating to Jammu province has not at all been
adverted to by the learned Single Judge. Plaintiff continued to receive the payments from
the defendants till 23rd March, 1974 as is evident from Ex.PW-3.
6. Stand of the learned counsel for the appellant was that the suit was filed on 16.9.1982
i.e. 8 years after the alleged date of execution of agreement. Full consideration was not
paid and till 1976 Rs. 5,000/- was not received. The Division Bench has not dealt with the
full payment aspect as was done in detail by the learned Single Judge. It was submitted
that the omission to give details of cause of action was not intentional as held by the
Division Bench.
7. In response, learned counsel for the respondents submitted that the learned Single
Judge did not refer to Section 138 of the J. and K. Act; but the Division Bench has
analysed the legal position in detail and, therefore, no interference is called for.
8. It was required of the plaintiff to lead as to how the writing came into existence as
regards receipt of money. No detail about cause of action was mentioned and no date was
also indicated when the construction was made.
9. The only averment of any substance in the plaint read as follows :
"That defendants No. 1 also purchased the adjoining plot of land from the State of Jammu
and Kashmir. After purchasing this plot, defendant No. 1 has constructed his house for
himself in his plot. When the house of defendant No. 1 was ready for habitation he started
living in the same. In the process, however, he encroached upon the plot of land of the
plaintiff and in due course of time bounded the same by a boundary wall. He has since
been using it as a courtyard. Defendant Nos. 2 to 4 are very close relation of defendant
No. 1 and are living with him. They are also using the plot of the plaintiff without his
permission. Though defendants No. 2 to 4 wife and sons of defendant No. 1, yet they are
being arrayed as defendants so as to avoid any plea by defendant No. 1 about their non-
joinder.
That the plaintiff objected to the illegal occupation of the land aforesaid by the
defendants. He requested the defendants a number of times to vacate the suit land and
hand it over to the plaintiff. The defendants, however, requested the plaintiff to sell the
suit land to the defendant No.2. The negotiations for the sale of the suit land, however,
did not materialize. The illegal occupation by the defendants over the suit land of the
plaintiff, however is continuing."
10. The High Court's finding, as noted above, does not suffer from any infirmity.
11. The Division Bench has elaborately discussed as to why it came to the conclusion that
the omission regarding cause of action was deliberate and was not inadvertent omission.
This was a case where no interference is called for with the well-reasoned order of the
Division Bench.
12. The appeal is dismissed without any order as to costs.
Appeal dismissed.
AIR 2008 SUPREME COURT 2103 "Hemani Malhotra v. High Court of Delhi"
Coram : 2 K. G. BALAKRISHNAN, C.J.I. AND J. M. PANCHAL, J.
Writ Petition (Civil) No. 490 with 491 of 2007, D/- 3 -4 -2008.
Hemani Malhotra v. High Court of Delhi
WITH Vineeta Goyal v. High Court of Delhi.
Constitution of India, Art.16, Art.233 - EQUALITY IN PUBLIC EMPLOYMENT -
APPOINTMENT - JUDICIAL SERVICE - Appointment - Prescribing minimum marks
for viva voce after written test was conducted - Not permissible.
Prescribing minimum marks for viva voce was not permissible at all after written test was
conducted. There is no manner of doubt that the authority making rules regulating the
selection can prescribe by rules the minimum marks both for written examination and
viva voce, but if minimum marks are not prescribed for viva voce before the
commencement of selection process, the authority concerned, cannot either during the
selection process or after the selection process add an additional requirement/
qualification that the candidate should also secure minimum marks in the interview.
@page-SC2104
Therefore, prescription of minimum marks at viva voce, test was illegal. (Paras 9, 10,
11, 12)
2008 AIR SCW 1529 (Ref.) 8, 10
AIR 1987 SC 454 : 1986 Lab IC 1417 (Ref.) 10
AIR 1987 SC 2267 : 1987 Lab IC 1914 (Ref.) 10
AIR 1985 SC 1351 : 1985 Lab IC 1625 (Ref.) 10
AIR 1984 SC 541 : 1984 Lab IC 301 (Ref.) 10
AIR 1981 SC 1777 : 1981 Lab IC 1515 (Ref.) 5
P.S. Patwalia, Ranjit Kumar, Sr. Advocates, Pradeep Dahiya, Ms. Veenita Goyal, Ms.
Hemani Malhotra, Bharat Sangal, for Petitioner; P.P. Rao, Sr. Advocate, A.
Mariarputham, Ms. Aruna Mathur, Mariarputham, Aruna and Co., for Respondent.
Judgement
J. M. PANCHAL, J. :- These petitions are filed under Article 32 of the Constitution
wherein the common prayer made, is to issue a writ of mandamus or any other
appropriate writ or order to direct the respondent i.e. the High Court of Delhi at New
Delhi to amend notice dated April 10, 2007 issued by Registrar (Vig.), High Court of
Delhi to the effect that the petitioner of each petition, is also declared as selected for
being recommended for appointment to the vacant post in Delhi Higher Judicial Service
and prepare a combined merit list on the basis of total marks obtained in written
examination as well as proportionate marks of the interview, as if, the viva voce test was
of 75 marks instead of 750 marks or by adding marks obtained in written examination
and the marks given to the petitioner in the interview out of 750 marks without cut off.
2. In order to resolve the controversy raised by the petitioners in the petitions it would be
advantageous to refer to certain basic facts.
3. The respondent i.e. the High Court of Delhi at New Delhi through Registrar General
issued an advertisement inviting applications from eligible candidates for 16 vacant posts
to be filled up by direct recruitment to Delhi Higher Judicial Service. Detailed
information was given in the instructions annexed with the Application Form. The
relevant particulars stated in the advertisement were as under :-
"Delhi Higher Judicial Service Examination shall be a two stage selection process
comprising the following :
(a) There shall be a written examination comprising of one paper only of 250 marks. It
shall have two parts. Part I shall be objective and Part II shall be descriptive. Syllabus for
written examination shall comprise General Knowledge, Current Affairs, English
Language and topics on Constitution of India, Evidence Act, Limitation Act, Code of
Civil Procedure, Criminal Procedure Code, Indian Penal Code, Contract Act, Partnership
Act, Principles governing Arbitration Law, Specific Relief Act, Hindu Marriage Act,
Hindu Succession Act, Transfer of Property Act and Negotiable Instruments Act.
(b) Interview/Viva-Voce.
Minimum qualifying marks in the written examination shall be 55% for General
Candidates and 50% for Scheduled Castes and Scheduled Tribes candidates."
4. The petitioner of each petition submitted application in the prescribed form. They were
allotted relevant Roll Nos. A written examination was conducted on March 12, 2006
wherein the petitioners appeared. The written examination was of three hours duration
and comprised both multiple questions as well as questions with descriptive answers. The
respondent High Court did not declare the result of the written examination at all.
However, the petitioners received letter dated June 14, 2006 from the respondent asking
them to appear for interview on July 12, 2006. Since the result of the written examination
conducted by the respondent was not declared, no merit list of the successful candidates
who passed the written test was displayed and therefore it is the case of the petitioners
that they were not in a position to find out details about the number of candidates who
were declared successful in the written examination or for that matter, the number of
candidates who had qualified for viva voce test. According to the petitioners, the
Registrar General of Delhi High Court verified testimonials and other documents
submitted by them and informed them that the interview had been deferred and that the
next date would be intimated in due course. What is averred
@page-SC2105
by the petitioners is that the respondent issued letter dated September 4, 2006 directing
the petitioners to appear for interview on September 20, 2006 at 2.30 P.M., but on
September 19, 2006 another letter was issued intimating the petitioners that the interview
fixed on September 20, 2006 was deferred. It may be mentioned that no next date of
interview was intimated to the petitioners. The respondent High Court issued letter dated
November 9, 2006 intimating the petitioners that the interview was fixed on November
29, 2006, but again on November 28, 2006, another letter was issued intimating the
petitioners that the interview fixed November 29, 2006 was deferred. This last letter of
November 28, 2006 specified that the interviews were to take place on December 7,
2006. According to the petitioners on December 7, 2006 five candidates who had cleared
written test gathered in the Office of Registrar General of Delhi High Court for appearing
at viva voce test and all the five candidates were collectively called in a Chamber by the
Selection Committee comprising five Hon'ble Judges of Delhi High Court to be informed
that the interview had been postponed. Meanwhile, the Selection Committee met and
resolved that as it was desirable to prescribe minimum marks for the viva voce the matter
be placed before the Full Court. Accordingly, the matter was placed before the Full Court
for considering the question whether minimum marks should be prescribed for viva voce
test. The Full Court, in its meeting held on December 13, 2006, resolved as under :-
"Considered. It was resolved that for recruitment to Delhi Higher Judicial Service from
Bar, the minimum qualifying marks in viva voce will be 55% for General candidates and
50% for Scheduled Castes and Scheduled Tribes Candidates."
The respondent High Court thereafter issued letter dated January 17, 2007 intimating the
petitioners that the viva voce was fixed on January 23, 2007, but on January 22, 2007
another letter was issued intimating that the interview fixed on January 23, 2007 was
postponed. Again by letter dated February 2, 2007 the petitioners were intimated that they
were required to appear for interview on February 5, 2007, but even on that day also, no
interview could be held.
5. The respondent High Court issued letter dated February 23, 2007 fixing the oral
interview on February 27, 2007 and on that day viva voce test was finally conducted by
the Selection Committee. Thereafter, the Registrar (Vig.) issued a notice dated April 10,
2007 mentioning that only three candidates were selected and the petitioners had not been
selected. This notice was posted on the web-site of Delhi High Court. What is claimed by
the petitioners is that the Selection Committee had not drawn final merit list on the basis
of combined result of written examination and interview because if the merit list had been
drawn on this basis, the petitioners would have obtained fourth or fifth position in the
final merit list as only five candidates had qualified for the viva voce test, and no cut-off
marks were prescribed for viva voce test. The petitioners claim that they filed an
application under Right to Information Act before the Public Information Officer of High
Court of Delhi on April 28, 2007 seeking information about the result etc. of Delhi
Higher Judicial Service Examination 2006. According to the petitioners the Public
Information Officer of the High Court did not supply most of the information demanded
by them on the pretext of confidentiality, but in reply dated June 20, 2007 only a part of
the information was given to the petitioner in Writ Petition No. 490 of 2007 that out of
250 marks for which written test was conducted, she had secured 141 marks and 363
marks out of 750 marks for which viva voce test, was conducted. The petitioner in Writ
Petition Civil No. 491 of 2007 was informed by intimation dated June 20, 2007 that she
had obtained 153.50 marks out of 250 marks for which written test was conducted and
316 marks out of 750 marks for which viva voce test was conducted. What is maintained
by the petitioners is that the petitioners have been excluded from being considered for
appointment to the post of Higher Judicial Services exclusively on the basis of cut off
marks prescribed at the stage of viva voce test, which is illegal and contrary to the
principle laid down by the Supreme Court in Lila Dhar vs. State of Rajasthan AIR 1981
SC 1777. According to the petitioners what weightage should be attached to written test
and interview depends upon the requirement of service for which selection is being made,
but minimum cut off marks could not have been prescribed for viva voce test, after
process for selection had commenced. It is stressed that the oral interview was the only
criteria adopted by the respondent for selection
@page-SC2106
to the posts in question which is illegal and therefore the notice dated April 10, 2007
issued by the Registrar (Vig.), High Court of Delhi should be directed to be amended to
include names of the petitioners also as selected candidates for appointment to the posts
in question. Under the circumstances the petitioners have invoked extra ordinary
jurisdiction of this Court under Article 32 of the Constitution and claimed the reliefs to
which reference is made earlier.
6. On service of notice, Mr. Ramesh Chand, Deputy Registrar, Delhi High Court has filed
reply affidavit controverting the averments made in the petition. In the reply it is stated
that the writ petitions filed against prescription of minimum percentage of marks for
qualifying at the viva voce test, is not maintainable and therefore should be dismissed. It
is mentioned in the reply that as far as selection made in the year 2000 was concerned, a
candidate was required to get minimum of 55% marks if he belonged to the General
Category and 50% marks if he belonged to the Scheduled Castes and Scheduled Tribes
category for passing the viva voce test and as the petitioners who belong to the General
Category did not secure the minimum marks stipulated for the viva voce, but failed, their
names were not recommended for appointment. It is mentioned in the reply that another
advertisement dated May 19, 2007 was issued for recruitment to the vacant posts in the
Delhi Higher Judicial Service wherein the petitioners had appeared but failed and
therefore also they are not entitled to the reliefs claimed in the petitions. What is pointed
out in the reply is that a candidate is required to secure the stipulated minimum marks in
the written examination in order to qualify for the next stage i.e. viva voce test and
therefore the respondent was justified in prescribing cut off marks at the viva voce test.
By filing the reply the respondent has demanded dismissal of the petitions.
7. This Court has heard the learned Counsel for the parties at length and in great detail.
This Court has also considered the documents forming part of the petitions.
8
. From the record of the case it is evident that the public advertisement was issued by the
respondent for direct recruitment to Delhi Higher Judicial Services. As per the said
advertisement written examination was to be held on March 12, 2006. The selection
process was of two stages : stage one was written examination comprising one paper only
of 250 marks, whereas stage two included interview/viva voce. As per the advertisement
minimum qualifying marks in the written examination were specified to be 55% for
General candidates and 50% for Scheduled Castes and Scheduled Tribes candidates but
no cut off marks were prescribed for viva voce test at all. The averments made in the
petitions which are not effectively controverted by the respondent would indicate that
oral interview was postponed by the respondent on six occasions and was finally
conducted by the Selection Committee only on February 27, 2007. However, before that
date criteria of cut off marks for viva voce test was introduced by the respondent. It is an
admitted position that at the beginning of the selection process, no minimum cut off
marks for viva voce were prescribed for Delhi Higher Judicial Service Examination,
2006. The question, therefore, which arises for consideration of the Court is whether
introduction of the requirement of minimum marks for interview, after the entire
selection process was completed would amount to changing the rules of the game after
the game was layed. This Court notices that in Civil Appeal No. 1313 of 2008 filed by K.
Manjusree against the State of A. P. and Anr. decided on February 15, 2008, the question
posed for consideration of this Court in the instant petitions was considered and answered
in the following terms :- reported in 2008 AIR SCW 1529
"The resolution dated 30.11.2004 merely adopted the procedure prescribed earlier. The
previous procedure was not to have any minimum marks for interview. Therefore,
extending the minimum marks prescribed for written examination, to interviews, in the
selection process is impermissible. We may clarify that prescription of minimum marks
for any interview is not illegal. We have no doubt that the authority making rules
regulating the selection, can prescribe by rules, the minimum marks both for written
examination and interviews, or prescribe minimum marks for written examination but not
for interview, or may not prescribe any minimum marks for either written examination or
interview. Where the rules do not prescribe any procedure, the Selection Committee may
also prescribe the minimum marks,
@page-SC2107
stated above. But if the Selection Committee want to prescribe minimum marks for
interview, it should do so before the commencement of selection process. If the selection
committee prescribed minimum marks only for the written examination, before the
commencement of selection process, it cannot either during the selection process or after
the selection process, add an additional requirement that the candidates should also
secure minimum marks in the interview. What we have found to be illegal, is changing
the criteria after completion of the selection process, when the entire selection proceeded
on the basis that there will be no minimum marks for the interview."
9. From the proposition of law laid down by this Court in the above mentioned case it is
evident that previous procedure was not to have any minimum marks for viva voce.
Therefore, prescribing minimum marks for viva voce was not permissible at all after
written test was conducted. There is no manner of doubt that the authority making rules
regulating the selection can prescribe by rules the minimum marks both for written
examination and viva voce, but if minimum marks are not prescribed for viva voce before
the commencement of selection process, the authority concerned, cannot either during the
selection process or after the selection process add an additional
requirement/qualification that the candidate should also secure minimum marks in the
interview. Therefore, this Court is of the opinion that prescription of minimum marks by
the respondent at viva voce, test was illegal.
10
. The contention raised by the learned Counsel for the respondent that the decision
rendered in K. Manjusree (supra) did not notice the decisions in Ashok Kumar Yadav v.
State of Haryana (1985) 4 SCC 417 as well as K.H. Siraj v. High Court of Kerala and
Others (2006) 6 SCC 395 and therefore should be regarded either as decision per
incuriam or should be referred to Larger Bench for reconsideration, cannot be accepted.
What is laid down in the decisions relied upon by the learned Counsel for the respondent
is that it is always open to the authority making the rules regulating the selection to
prescribe the minimum marks both for written examination and interview. The question
whether introduction of the requirement of minimum marks for interview after the entire
selection process was completed was valid or not, never fell for consideration of this
Court in the decisions referred to by the learned Counsel for the respondent. While
deciding the case of K. Manjusree (supra) the court noticed the decisions in (1) P. K.
Ramachandra Iyer v. Union of India (1984) 2 SCC 141; (2) Umesh Chandra Shukla v.
Union of India (1985) 3 SCC 721; and (3) Durgacharan Misra v. State of Orissa (1987) 4
SCC 646, and has thereafter laid down the proposition of law which is quoted above. On
the facts and in the circumstances of the case this Court is of the opinion that the decision
rendered by this Court in K. Manjusree (Supra) can neither be regarded as Judgment per
incuriam nor good case is made out by the respondent for referring the matter to the
Larger Bench for reconsidering the said decision. 2008 AIR SCW 1529
AIR 1987 SC 454
2006 AIR SCW 3136
AIR 1984 SC 541
AIR 1985 SC 1351
AIR 1987 SC 2267
11
. At this stage this Court notices that as per the information supplied by the respondent to
the petitioners under the provisions of Right to Information Act, the petitioner in Writ
Petition Civil No. 490/2007 had secured 142 marks out of 250 prescribed for the written
test and 363 marks out of 750 marks in viva voce test, whereas the petitioner in Writ
Petition No. 491/2007 had secured 153.50 marks out of 250 marks in the written test and
316 marks out of 750 marks in viva voce test. There is no manner of doubt that the
prescription of 750 marks for viva voce test is on higher side. This Court further notices
that Hon'ble Justice Shetty Commission has recommended in its Report that The viva
voce test should be in a thorough and scientific manner and it should be taken anything
between 25 to 30 minutes for each candidate. What is recommended by the Commission
is that the viva voce test shall carry 50 marks and there shall be no cut off marks in viva
voce test." This Court notices that in All-India Judges Association and Ors. v. Union of
India and Ors. (2002) 4 SCC 247, subject to the various modifications indicated in the
said decision, the other recommendations of the Shetty Commission (supra) were
accepted by this Court. It means that prescription of cut off marks at viva voce test by the
respondent was not in accordance with the decision of this Court. 2002 AIR SCW 1706
@page-SC2108
It is an admitted position that both the petitioners had cleared written examination and
therefore after adding marks obtained by them in the written examination to the marks
obtained in the viva voce test, the result of the petitioners should have been declared. As
noticed earlier 16 vacant posts were notified to be filled up and only five candidates had
cleared the written test. Therefore, if the marks obtained by the petitioners at viva voce
test had been added to the marks obtained by them in the written test then the names of
the petitioners would have found place in the merit list prepared by the respondent. Under
the circumstances, this Court is of the opinion that the petitions filed by the petitioners
will have to be accepted in part.
12. For the foregoing reasons both the petitions succeed. The respondent is directed to
add the marks obtained by the petitioners in the written examination to the marks
obtained by them in the viva voce test and prepare a combined merit list along with the
other selected candidates. The respondent is directed to amend the notice dated April 10,
2007 issued by the Registrar (Vig.), High Court of Delhi, New Delhi and declare the
petitioners as selected for being recommended for appointment to the post in Delhi
Higher Judicial Service. It is clarified that the petitioners would neither be entitled to,
seniority or salary with retrospective effect. Their seniority shall be reckoned from the
date of their appointment and salary as allowable be paid from that date only. Rule is
made absolute accordingly in each petition.
There shall be no order as to cost.
Order accordingly.
AIR 2008 SUPREME COURT 2108 "Sohan Raj Sharma v. State of Haryana"
(From : 2007 (2) Cur Cri R 444) (Punj and Har)
Sohan Raj Sharma v. State of Haryana.
(A) Penal Code (45 of 1860), S.306 - ABETMENT TO SUICIDE - Abetment of suicide -
Abetment involves a mental process of instigating a person or intentionally aiding that
person in doing of a thing - More active role which can be described as instigating or
aiding doing of a thing is thus required before a person can be said to be abetting suicide.
(B) Penal Code (45 of 1860), S.306 - ABETMENT TO SUICIDE - Abetment of suicide -
Proof - Wife committed suicide after giving poison to her children - Suicide note
described accused husband as sexual pervert - It was stated that accused was impotent
and was trying to defame her - She had clearly mentioned that she wanted to take his life
- His cruel or insulting behaviour cannot be taken to be an act of abetting suicide -
Ingredients of S.306 not established - Conviction of accused, improper.
1995 AIR SCW 4570, Rel. on.
2007 (2) Cur Cri R 444 (Pand H), Reversed. (Paras 12, 13, 14)
B.D. Sharma, for Appellant; Rajeev Gaur 'Naseem', Rajesh Ranjan, T.V. George, for
Respondent.
Judgement
Dr. ARIJIT PASAYAT, J. :- Challenge in this appeal is to the order passed by a learned
Single Judge of the Punjab and Haryana High Court upholding appellant's conviction for
offence punishable under Section 306 of the Indian Penal Code, 1860 (in short 'IPC') and
sentence of 7 years RI.
First Information Report lodged by Shri Rajiv Lochan Jain (PW4) was to the effect that
Jyoti (hereinafter referred to as the 'deceased') had written in her letter that her husband
Sohan Raj Sharma the accused-appellant was torturing her for sex in many different
ways, mostly pervert and tired of the same, she had poisoned her children, and had
consumed poison herself. The FIR is further to the effect that appellant-Sohan Raj
Sharma, because of the circumstances, had compelled Jyoti to consume poison. The first
endorsement of the Investigating Officer ASI Rohtash Singh (PW10) on the statement
Ex.PL of Shri Rajiv Lochan Jain (PW4) is Ex.PL/1 and it is to the effect that on his
reaching B.K. Hospital Faridabad along with other police officials, Shri Rajiv Lochan
Jain had handed him over one letter (Ex. PX) of
@page-SC2109
eight pages which was taken into possession of the police vide memo Ex.PM and from
the statement of Shri Rajiv Lochan Jain and the letter produced by him, the allegations of
commission of offences punishable under Section 306 IPC on the part of the Sohan Raj
Sharma were made out. Statement Ex. PL/1, the statement Ex. PL along with
endorsement Ex.PL/1 was sent to the police station for registration of the case on which
formal FIR was recorded. During investigation, the incriminating evidence in the form of
medical evidence regarding death of Jyoti, Pinki and Gudiya having been caused due to
consumption of poison surfaced. Further the report regarding letter (Ex.PX) and other
oral evidence of the witnesses regarding circumstances connected with the occurrence
were collected. Accused Sohan Raj Sharma was put on trial for offence punishable u/S.
306 IPC, he was challaned by the police and was committed to the court of Sessions for
trial by the Illaqa Magistrate.
3. Prosecution examined 11 witnesses and exhibited several documents. Most vital one is
purported suicide note Ex.PX. Appellant took the stand during examination under Section
313 of the Code of Criminal Procedure, 1973 (in for 'Code') that she was never married to
the deceased officially. It also alleged that she was a lesbian and in proof of this stand,
one Anita Parmar was examined as DW1. The Trial Court found the contents of Ex.PX
satisfied ingredients of Section 306 IPC. Accordingly, the appellant was found guilty and
convicted and sentenced as aforesaid.
4. In appeal before the High Court, the stand taken before the Trial Court that ingredients
of Section 306 IPC have not been fulfilled was reiterated. Stand of the prosecution was
that the ingredients have been established.
5. The High Court found that Ex.PX was sufficient to show as to what was the reason for
deceased committing suicide.
6. Learned counsel for the appellant submitted that letter Ex.PX in no way establishes
that the appellant had abeted the suicide. As a matter of fact, the fact that the deceased
took the lives of two innocent children and then committed suicide without any doubt
establishes that she was mentally unsound. The letter at the most describes the accused as
a sexual pervert, but his behaviour, if any, cannot be taken to be an act of abetting the
suicide. It is pointed out that in Ex PX she has clearly stated that she wanted to take
appellants' life.
7. Learned counsel for the respondents-State on the other hand supported the judgment of
the courts below.
Section 306 IPC deals with abetment of suicide. The said provision reads as follows:
"306 ABETMENT OF SUICIDE. If any person commits suicide, whoever abets the
commission of such suicide, shall be punished with imprisonment of either description
for a term which may extend to ten years, and shall also be liable to fine."
8. Abetment involves a mental process of instigating a person or intentionally aiding that
person in doing of a thing. In cases of conspiracy also it would involve that mental
process of entering into conspiracy for the doing of that thing. More active role which can
be described as instigating or aiding the doing of a thing it required before a person can
be said to be abetting the commission of offence under Section 306 of IPC.
9
. In State of West Bengal v. Orilal Jaiswal (AIR 1994 SC 1418) this Court has observed
that the courts should be extremely careful in assessing the facts and circumstances of
each case and the evidence adduced in the trial for the purpose of finding whether the
cruelty meted out to the victim had in fact induced her to end her life by committing
suicide. If it transpires to the Court that a victim committing suicide was hypersensitive
to ordinary petulance, discord and differences in domestic life quite common to the
society to which the victim belonged and such petulance discord and differences were not
expected to induce a similarly circumstanced individual in a given society to commit
suicide, the conscience of the Court should not be satisfied for basing a finding that the
accused charged of abetting the offence of suicide should be found guilty. 1994 AIR
SCW 844
10. Section 107 IPC defines abetment of a thing. The offence of abetment is a separate
and distinct offence provided in the Act as an offence. A person, abets the doing of a thing
when (1) he instigates any person to do that thing; or (2) engages with one or more other
persons in any conspiracy for the doing of that thing; or (3) intentionally aids, by act or
illegal omission, the doing of that thing. These things are essential to complete abetment
as a crime. The word "instigate"
@page-SC2110
literally means to provoke, incite, urge on or bring about by persuasion to do any thing.
The abetment may be by instigation, conspiracy or intentional aid, as provided in the
three clauses of Section 107. Section 109 provides that if the act abetted is committed in
consequence of abetment and there is no provision for the punishment of such abetment,
then the offender is to be punished with the punishment provided for the original offence.
'Abetted' in Section 109 means the specific offence abetted. Therefore, the offence for the
abetment of which a person is charged with the abetment is normally linked with the
proved offence.
11. In cases of alleged abetment of suicide there must be proof of direct or Indirect acts of
incitement to the commission of suicide. The mere fact that the husband treated the
deceased-wife with cruelty is not enough. [See Mahinder Singh v. State of M.P. (1995
AIR SCW 4570)].
12. When the factual scenario is examined, it is clear that the accused has been described
as a sexual pervert and that he had behaved like an animal and the deceased had tolerated
the insulting manner in which he behaved. They were married in court. It was stated that
the accused was impotent and he was trying to defame the deceased for having
relationship with ladies.
13. The most significant part of the letter the deceased had written is as follows :
"I desired to kill you along with us but no, if you have any sense of shame you will die as
a result of the sequence of events. But it do not make any difference for shameless person
because these abuses will sound as correct if you realize your capacity. You have not
spent even eight days in a period of eight years in peace with me. You yourself are
responsible for death of these children. Flowers had been prayed for from the deities of
your family regarding whom you disclosed "they are not mine they are with me from my
friend (girl friend) on, you, the condemned the day children will be born as a result of
cohabitation of a woman with woman, a woman will stop giving birth to man like you."
(Underlined for emphasis)
14. Above being the factual scenario, it cannot be said that the ingredients of Section 306
IPC have been established. Therefore, the conviction as recorded cannot be maintained.
The order of the High Court is set aside. The appellant be released forthwith unless
required in connection with other case.
Appeal allowed.
AIR 2008 SUPREME COURT 2110 "Ponnusamy v. State of Tamil Nadu"
(From : Madras)
Coram : 2 S. B. SINHA AND HARJIT SINGH BEDI, JJ.
Ponnusamy v. State of T.N.
(A) Criminal P.C. (2 of 1974), S.154 - FIR - MURDER - WITNESS - FIR - Lodging of -
Murder - Informant a rustic villager - Stated that she was turned away from police station
on premise that no dead body was recovered or there being no other evidence relating to
death of deceased - No exception to such a statement can be taken - Conduct of Police
Officers not unknown to Courts.
Evidence Act (1 of 1872), S.167. (Para 14)
(B) Penal Code (45 of 1860), S.300 - MURDER - EVIDENCE - Murder - Circumstantial
evidence - Appellant-accused and deceased-wife last seen together - Deceased was
missing thereafter - No explanation given by accused - Dead body found after few days
only upon disclosure made by accused - Identified to be that of deceased - Jewellery put
on by deceased was produced by appellant - Medical evidence does not negate
prosecution case - Extra-judicial confession by accused found to be voluntary and truthful
- Conviction of accused for murder - Not liable to be interfered with. (Paras 15, 18,
25, 28)
2007 AIR SCW 295 : 2007 Cri LJ 1174 (Ref.) 19
2006 AIR SCW 5300 : 2007 Cri LJ 20 (Ref.)19
(2000) 1 SCC 471 (Ref.) 17
A.T.M. Rangaramanujam, Sr. Advocate, V. Balaji, P.N. Ramalingam, for Appellant; P.
Shanmugasundaram, Sr. Advocate, V.G. Pragasam, S. Joseph Aristotle, Prabu
Ramasubramanian, for Respondent.
@page-SC2111
Judgement
1. S. B. SINHA, J. :- This appeal is directed against the judgment and order dated 23rd
June, 2005 passed by a Division Bench of the High Court of Judicature at Madras in
Criminal Appeal No. 937 of 1998 whereby and whereunder an appeal from a Judgment of
conviction and sentence passed by the 1st Additional District Judge-cum-Chief Judicial
Magistrate, Erode dated 12th October, 1998 in S.C. No. 93 of 1998 convicting the
appellant herein for commission of an offence under Section 302 of the Indian Penal
Code as also under Section 201 thereof and sentencing him to undergo rigorous
imprisonment for life and two years respectively, was dismissed.
2. Deceased Selvi was the wife of the appellant. She was earlier married to one Easwaran,
PW-9. Allegedly Easwaran had married one Balamani and after divorcing her, he married
the deceased. He, however, continued to have relations with Balamani. He purported to
have divorced Balamani by a letter. The deceased was living with her mother Ramathal,
PW-1. Appellant thereafter married the deceased. He had been informed, about the fact of
the earlier marriage of the deceased. He agreed to the proposal of marriage but wanted
two acres of land. A Deed of Gift in favour of the deceased was executed by her father.
Appellant wanted the same to be registered in his name. His request was not acceded to.
He left the house of PW-1 after three days of marriage. A year thereafter, he intended to
live with the deceased and approached Thangavel, PW-2, therefor. As the deceased also
agreed to the said proposal, they left the house of PW-1 on 5th March, 1997. She was not
seen thereafter. Allegedly in the morning of 10th March, 1997, the appellant met PW-2
and informed him that the deceased had gone away from his house on that date. A search
for her was carried out. On the next date, the appellant was seen at the Sevoor bus stop.
Kannan Naicker, PW-10 was also present there. He asked the appellant and questioned
the deceased's whereabouts, in response whereto he allegedly disclosed that he had
murdered her on 9th March, 1997. PW-10 allegedly became panicky. He became sick. He
then requested Arunachalam @ Mani, PW-11, to take him to a doctor. When they
returned from the doctor's clinic, they found the appellant in the office of the Village
Administrative Officer, PW-18. He purported to have made a confession again before
PW-18 that he had murdered Selvi before PW-18. He also had a packer of paper in his
hand.
3. PW-10 then requested PW-11 to inform PW-2 about the matter. On receiving the said
information an attempt was made to lodge a First Information Report at Sathyamangalam
police station. The First Information Report was refused to be registered thereat in the
absence of any dead body or any other evidence with regard to the murder. A search was
conducted for the dead body. On the bank of L.B.P. canal dead body was found on 14th
March, 1997 which fell within the Jurisdiction of Kadathur police station. A complaint
was made before Ramasamy, Inspector of Police, PW-13, at 10.30 a.m. on the same day,
whereupon a First Information Report was registered under Section 302 and Section 201
of the Indian Penal Code. Investigation was taken up by PW-22, the Deputy
Superintendent of Police of Gobichettipalayam.
4. PW-1 identified the dead body on the basis of a talisman, which was found on her
hand, as also on identification of her saree. A key was found tagged in the saree. The key
was removed. On a query enquiry made by PW-22, in regard to the lock for which the
key was used, it was stated that the lock was fitted to a trunk. The trunk was brought. The
key was fitted in the lock of the trunk. It was opened with the said key.
5. An inquest was conducted. The dead body was also subjected to post-mortem
examination. In the said report it was stated :-
"Highly decomposed with maggots all over the body. Teeth 1/3 nose, eye, mouth absent.
Thorax : No fracture ribs. Heart : Partially decomposed. Lungs : Decomposed. Hyoid
Bone : Intact. Stomach, Liver, Spleen and Kidney : Partially liquefied with greenish
discolouration. Intestine, Bladder and Uterus : Partially decomposed. Head : No fracture
skull. Brain: Completely liquefied."
6. PW-18, the Village Administrative Officer, in the meantime took the appellant to the
Tahsildar, PW-19. Not only he confessed that he had murdered his wife and thrown the
dead-body in the canal but also produced a 'thali chain', M.O. 1 and ear-rings, M.O. 2
belonging to the deceased. Confessional statement of the appellant was reduced into
writing. He was thereafter produced before the Judicial Magistrate.
@page-SC2112
7. Admittedly, there was no eye-witness to the occurrence.
8. The entire prosecution case is based on circumstantial evidence. The Learned Sessions
Judge in his judgment found the following circumstances to arrive at his conclusion with
regard to the guilt of the appellant. :-
1) Deceased was last seen in his company on 5th March, 1997.
2) She was not seen in anybody else's company between 5th March, 1997 and 10th
March, 1997.
3) Appellant made an extra-judicial confession not only before PW-2 but also before
PWs. 10 and 18.
4) On the basis of his confession that the dead body had been thrown in L.B.P. canal a
search for the dead body was made and recovered.
5) Dead body was that of a female. It was identified to be that of the deceased with
reference to the manglasutra and some other Jewellery which were found on her person.
Photograph of the deceased was superimposed on the photograph of the dead-body and it
was found to be that of her.
6) Appellant produced the belongings of the deceased before the Village Administrative
Officer, PW-18, which admittedly belonged to her.
9. The appeal preferred thereagainst by the appellant has been dismissed by the High
Court by reason of the impugned judgment.
10. Mr. A.T.M. Rangaramanujam, learned Senior Counsel appearing on behalf of the
appellant, in support of the appeal would submit :-
1) It was improbable that the appellant had confessed his guilt before PW-2.
2) The purported extra-judicial confession by the appellant before PW-10 should not be
relied upon, having regard to the latter's conduct, inasmuch, he did not report thereabout
to the police on the pretext of his becoming sick in respect of which no material was
brought on record.
3) Post-mortem report clearly established that the body recovered was in a highly
decomposed stage which was, thus, not in a position to be identified, and, in that view of
the matter, the corpus delicti having not been proved, the impugned judgment cannot be
sustained.
4) No fracture having been found on hyoid bone, it is evident that the deceased did not
die of strangulation which was the positive case of the prosecution.
5) No explanation having been furnished for the delay in lodging the First Information
Report, the entire prosecution case is suspicious.
6) Conduct of the prosecution witnesses and in particular that of PW-1, PW-2 and PW-10
is such, that would lead to the conclusion that they are not trustworthy witnesses.
7) Extra-judicial confession, in any event, being a weak evidence, it was obligatory on
the part of the prosecution to lead evidence corroborating thereto.
8) Extra-judicial confession in any event being contrary to or inconsistent with the
medical report, it would not be safe to rely thereupon.
10A. Mr. R. Shunmugasundaram, learned Senior Counsel appearing on behalf of the
State, on the other hand urged :-
1) The dead body having been identified with reference to manglasutra, key and saree,
the courts below rightly held that the dead-body was that of the deceased 'Selvi'.
2) The jewellery items which were handed over by the appellant himself in a packet, were
identified by PW-1 when she was afforded an opportunity to do so.
3) It is not correct to contend that PW-10, despite extra-judicial confession made before
him, did not take any step in that behalf as he had immediately sent PW-11, Mani, to
inform PW-2 thereabout. It is thereafter only, that they went to the police station.
4) Sufficient explanation had been offered by PW-1, in regard to the delay in lodging of
the First Information Report, having regard to the fact that Sathyamangalam police
station had refused to record the First Information Report in the absence of the dead-body
and/or any other record. A First Information Report was lodged only after the dead-body
was seen and identified with reference to the talisman, M.O.4; key, M.O. 5 and the silver
ring which was found on her toe.
5) Thiru Devarajan, who examined himself as PW-22, and was working as Deputy
Superintendent of Police, was a witness to
@page-SC2113
identification of the dead-body to be that of Selvi from the ninji, "dayath" tied on the
hand and from the key tied to the end of the saree. Only at his instance, the trunk was
brought and the lock opened with the key.
6) Requisition, Ext.P.3, was made by the Superintendent of the Police for chemical test
and the Chemical Test Report, Ext.P.5 categorically established the identity of the
deceased.
7) Absence of fracture on the hyoid bone itself would not lead to the conclusion that the
deceased did not die of strangulation as medical jurisprudence suggests that only in a
fraction of such cases, a fracture of hyoid bone is found.
11. The relationship of the appellant with that of the deceased is not in dispute. That they
were married and immediately thereafter started living in the house of P-1 is also not
denied or disputed. It further stands established that PW-2 is the husband of Rukmani,
another daughter of PW-1. It has also not been disputed that the deceased was earlier
married to Easwaran, PW-9. The prosecution has also brought on record a Deed of Gift
dated 25th January, 1996 executed by the husband of PW-1 in favour of the deceased.
There is also no serious dispute that the appellant did not maintain any relationship with
the deceased for about a year. They were last seen together on 5th March, 1997, when
they travelled together from the house of PW-1.
12. Voluntary statement made by the appellant to PW-2 on 10th March, 1997 that she had
been missing was found by both the courts below to be untrue.
13. Indisputably, some delay took place in lodging the First Information Report. Till 11th
March, 1997 PW-1 or for that matter PW-2, was not sure about the death of the deceased.
Only when an extra-judicial confession was made by the appellant, an attempt was made
to lodge a First Information Report.
14. The contention of the learned counsel that the statement to the said effect, purported
to have been made, by PW-1 should not be relied upon as no officer from the police
station had been examined to establish the said fact, cannot be accepted for more than one
reason. PW1 is a rustic villager. She is an illiterate lady. According to her, she had been
turned away from the police station on the premise that no dead body was recovered or
there being no other evidence relating to her death. No exception to such a statement can
be taken. The courts cannot be oblivious of such conduct on the part of the police
officers. Apathy on the part of the police officers to accept complaints promptly is well
known phenomena.
They were searching for the deceased earlier but without success. Only on the disclosure
statement made by the appellant before PW-10 and the police officer at Sathyamangalam
police station having refused to record the First Information Report, they started
searching for the body on the bank of the canal. The Investigating Officer, Village
Administrative Officer as also other prosecution witnesses , clearly proved the discovery
of a dead-body. Identification of the dead-body on the basis of the manglasutra, saree as
also the sliver ring on the toe of the deceased is not in dispute. Significantly, a key was
also recovered. PW-22, a responsible officer, with a view to satisfy himself as regards the
identity of the dead-body, with reference to the key tied at the end of the saree, asked
PW-2 to bring the trunk and found it to be of the lock put on the said trunk.
15. Attempts on the part of the prosecution to establish identity of the dead-body to be
that of the deceased did not stop there. It was sent for opinion of a Chemical Examiner. It
was opined :-
" During superimposition, the following observations were made :-
a) The anthroposcopic landmark on the fact in item 1 and those on the skull item 2 fitted
fairly well.
b) The outline of the face in item 1 and the outline of skull item 2 were found to be in fair
congruence.
OPINION
The skull item 2 could very well have belonged to the female individual seen in
photograph item 1."
The said report has been proved. Its veracity is not disputed before us. We do not find any
cogent reason to doubt its correctness thereof.
16. Appellant is said to have thrown the dead-body in the canal. The fact that there was
sufficient water in the canal has also been established. In a situation of this nature, a
presumption about the knowledge of the appellant in regard to location of the
@page-SC2114
dead-body of 'Selvi' can be drawn. His confession led to a discovery of fact which had a
nexus with commission of a crime.
17. This Court in State of Mahasrashtra vs. Suresh : (2000) 1 SCC 471 opined :-
"26. We too countenance three possibilities when an accused points out the place where a
dead-body or an incriminating material was concealed without stating that it was
conceded by himself. One is that he himself would have concealed it. Second is that he
would have seen somebody else concealing it. And the third is that he would have been
told by another person that it was concealed there. But if the accused declines to tell the
criminal court that his knowledge about the concealment was on account of one of the
last two possibilities the criminal court can presume that it was concealed by the accused
himself. This is because accused is the only person who can offer the explanation as to
how else he came to know of such concealment and if he chooses to refrain from telling
the court as to how else he came to know of it, the presumption is a well justified course
to be adopted by the criminal court that the concealment was made by himself. Such an
interpretation is not inconsistent with the principle embodied in Section 27 of the
Evidence Act.
18. We have to consider the factual background of the present case in the light of the
relationship between the parties. If his wife was found missing, ordinarily, the husband
would search for her. If she has died in an unnatural situation when she was in his
company, he is expected to offer an explanation therefor. Lack of such explanation on the
part of the appellant itself would be a circumstantial evidence against him.
19
. In Trimukh Maroti Kirkan vs. State of Maharashtra : (2006) 10 SCC 681, it was
observed :- 2006 AIR SCW 5300, Para 17
"22. Where an accused is alleged to have committed the murder of his wife and the
prosecution succeeds in leading evidence to show that shortly before the commission of
crime they were seen together or the offence takes placed in the dwelling home where the
husband also normally resided, it has been consistently held that if the accused does not
offer any explanation how the wife received injuries or offers an explanation which is
found to be false, it is a strong circumstance which indicates that he is responsible for
commission of the crime.
[See also Raj Kumar Prasad Tamarkar vs. State of Bihar and another : 2007 (1) SCALE
19]. 2006 AIR SCW 295
20-21. It is true that the autopsy surgeon, PW-17, did not find any fracture on the hyoid
bone. Existence of such a fracture lead to a conclusive proof of strangulation but absence
thereof does not prove contra.
In Taylor's Principles and Practice of Medical Jurisprudence, Thirteenth Edition, pages
307-308, it is stated :-
"The hyoid bone is 'U' shaped and composed of five parts : the body, two greater and two
lesser horns. It is relatively protected, lying at the root of the tongue where the body is
difficult to feel. The greater horn, which can be felt more easily, lies behind the front part
of the strip-muscles (sternomastoid), 3 cm below the angle of the lower jaw and 1.5 cm
from the midline. The bone ossifies from six centres, a pair for the body and one for each
horn. The greater horns are, in early life, connected to the body by cartilage but after
middle life they are usually united by bone. The lesser horns are situated close to the
junction of the greater horns in the body. They are connected to the body of the bone by
fibrous tissue and occasionally to the greater horns by synovial joints which usually
persist throughout life but occasionally become ankylosed.
Our own findings suggest that although the hardening of the bone is related to age there
can be considerable variation and elderly people sometimes show only slight ossification.
From the above consideration of the anatomy it will be appreciated that while injuries to
the body are unlikely, a grip high up on the neck may readily produce fractures of the
greater horns. Sometimes it would appear that the local pressure from the thumb causes a
fracture on one side only.
While the amount of force in manual strangulation would often appear to be greatly in
excess of that required to cause death, the application of such force, as evidenced by
extensive external and soft tissue injuries, make it unusual to find fractures of the hyoid
bone in a person under the age of 40 years.
As stated, even in older people in which ossification is incomplete, considerable violence
@page-SC2115
may leave this bone intact. This view is confirmed by Green. He gives interesting
figures : in 34 cases of manual strangulation the hyoid was fractured in 12 (35%) as
compared with the classic paper of Gonzales who reported four fractures in 24 cases. The
figures in strangulation by ligature show that the percentage of hyoid fractures was 13.
Our own figures are similar to those of Green."
22. In 'Journal of Forensic Sciences' Volume 41 under the Title - Fracture of the Hyoid
Bone in Strangulation : Comparison of Fractured and Unfractured Hyoids from Victims
of Strangulation, it is stated :-
"The hyoid is the U-shaped bone of the neck that is fractured in one-third of all
homicides by strangulation. On this basis, post-mortem detection of hyoid fracture is
relevant to the diagnosis of strangulation. However, since many cases lack a hyoid
fracture, the absence of this finding does not exclude strangulation as a cause of death.
The reasons why some hyoids fracture and others do not may relate to the nature and
magnitude of force applied to the neck, age of the victim, nature of the instrument
(ligature or hands) used to strangle, and intrinsic anatomic features of the hyoid bone. We
compared the case profiles and xeroradiographic appearance of the hyoids of 20 victims
of homicidal strangulation with and without hyoid fracture (n = 10, each). The fractured
hyoids occurred in older victims of strangulation (39 ±14 years) when compared to the
victims with unfractured hyoids (30 ± 10 years). The age-dependency of hyoid fracture
correlated with the degree of ossification or fusion of the hyoid synchondroses. The hyoid
was fused in older victims of strangulation (41 ± 12 years) whereas the unfused hyoids
were found in the younger victims (28 ±10 years). In addition, the hyoid bone was
ossified or fused in 70% of all fractured hyoids, but, only 30% of the unfractured hyoids
were fused. The shape of the hyoid bone was also found to differentiate fractured and
unfractured hyoids. Fractured byoids were longer in the anterior-posterior plane and were
more steeply sloping when compared with unfractured hyoids. These data indicate that
hyoids of strangulation victims, with and without fracture, are distinguished by various
indices of shape and rigidity. On this basis, it may be possible to explain why some
victims of strangulation do not have fractured hyoid bones."
23. Mr. Rangaramanujam, however, relied upon Modi's 'Medical Jurisprudence and
Toxicology', Twenty-Third Edition at page 584 wherein a difference between hanging and
strangulation has been stated. Our attention in this connection has been drawn to point
No. 12 which reads as under :-
Hanging Strangulation
Fracture of the larynx and trachea - Fracture of the larynx and trachea -
Very rare and that too in judicial hanging. Often found also hyoid bone.
24. A bare perusal of the opinion of the learned Author by itself does not lead to the
conclusion that fracture of hyoid bone, is a must in all the cases.
25. We must also take into consideration the fact that the dead-body was decomposed
with maggots all over it. Other marks of strangulation which could have been found were
not to be found in this case. The dead body was found after a few days. We are, therefore,
of the opinion that medical evidence does not negate the prosecution case.
26
. There cannot be any doubt that extra-judicial confession is evidence of weak nature as
has been held in Kuldip Singh and another vs. State of Punjab : (2002) 6 SCC 757.
2002 AIR SCW 3369
However, it must also be noticed that therein, not only the confession made by the
appellant was found to be unbelievable, even the recovery of the dead-body, pursuant to
the disclosure statement made, was also found to be so. There was no other evidence on
record on the basis of which the conviction of the appellant could be sustained.
In this case, however, not only an extra-judicial confession was made by the appellant
before PW-10, the same was also made before PW-11. The jewellery which had been put
on by the deceased was produced by the appellant. Only upon the disclosure made by the
appellant that the dead-body had been thrown in the canal, a search was made and it was
found. The dead-body was also identified to be that of the deceased.
@page-SC2116
27
. In Vinayak Shivajirao Pol vs. State of Mahasrashtra : (1998) 2 SCC 233, this Court
opined :- 1998 AIR SCW 886
"10. There is no ambiguity in the above statement. It shows that the appellant killed his
wife. Both the Courts have found that the statement was made voluntarily by the
appellant. The sequence of events shows that at the time when the appellant made a
confession, neither he nor the military authorities had any knowledge of the recovery of
the headless trunk of the appellant's wife. The military authorities were in no way biased
or inimical to the appellant. Nothing is brought out in the evidence in respect of the
military officers which may indicate that they had a motive for attributing an untruthful
statement to the appellant. The statement has been proved by one of the officers to whom
it was made. The said officer has been examined as PW-32. A perusal of the evidence
shows that the vague plea raised by the appellant that the statement was obtained from
him on inducement and promise is not true. In such circumstances it is open to the Court
to rest its conclusion on the basis of such statement and no corroboration is necessary."
28. We have been taken through the evidence of PW-10 and PW-18. We have no reason
to differ with the findings of the learned trial Judge as also the High Court that the extra-
judicial confession was voluntary or truthful. We, therefore, are of the opinion that no
case has been made out for interference with the impugned judgment. The appeal fails
and is dismissed accordingly.
Appeal dismissed.
AIR 2008 SUPREME COURT 2116 "Common Cause (A Regd. Society) v. Union of
India"
Coram : 2 H. K. SEMA AND MARKANDEY KATJU, JJ.*
Writ Petn. Civ. No.580 of 2003, D/- 11 -4 -2008.
Common Cause (A Regd. Society) v. Union of India and Ors.
(A) Motor Vehicles Act (59 of 1988), Pre., S.215 - MOTOR VEHICLES - WRITS - Act
is comprehensive enactment - Various matters relating to traffic safety on roads and
minimization of road accidents - Adequately taken care of by Act itself - Lacuna or defect
if there is any - Can be corrected by Legislature by Amending Act and not by the Court.
Per H.K. Sema, J. (Concurring with Markandey Katju, J.). - The relief sought in writ
petition for direction to formulate a suitable Road Traffic Safety Act to meet effectively
the various requirements for minimization of road accidents; and to pass such other and
further orders as may be deemed necessary to deal effectively with the various matters
relating to traffic safety on the roads and minimization of road accidents, is adequately
taken care of by the Motor Vehicles Act itself and if there is any lacuna or defect, it is the
legislature to correct it by amending the Act and not the Court. (Paras 2, 3)
Per Markandey Katju, J. - What the petitioner really prayed for in this petition is for
various directions which would be legislative in nature, as they would amount to
amending the Act. This will not be a legitimate judicial function. The Courts must not
legislate or perform executive functions. (Paras 24, 31, 35, 43, 44)
(B) Constitution of India, Art.226 - WRITS - PUBLIC INTEREST LITIGATION - Public
interest litigation - Powers of Court to entertain.
Per H.K. Sema, J. - Whether to entertain the petition in the form of Public Interest
Litigation either represented by public spirited person; or private interest litigation in the
guise of public interest litigation; or publicity interest litigation; or political interest
litigation is to be examined in the facts and circumstances recited in the petition itself. If
there is a buffer zone unccoupied by the legislature or executive which is detrimental to
the public interest, judiciary must occupy the field to subserve public interest. Therefore,
each case has to be examined on its own facts. Therefore, the blanket bar of the
application in the form of PIL is obviated. (Paras 4, 9, 10)
Per Markandey Katju, J. - The PILs are being entertained by many Courts as a routine
and the result is that the dockets of most of the superior courts are flooded with PILs,
most of which are frivolous or for which the judiciary has no remedy. Public interest
litigation has nowadays largely become 'publicity interest litigation', 'private interest
@page-SC2117
litigation',or 'politics interest litigation' or the latest trend 'paise income litigation'. Much
of P. I. L. is really blackmail. Thus, Public Interest Litigation which was initially created
as a useful judicial tool to help the poor and weaker section of society who could not
afford to come to Courts, has, in course of time, largely developed into an uncontrollable
Frankenstein and a nuisance which is threatening to choke the dockets of the superior
Courts obstructing the hearing of the genuine and regular cases which have been waiting
to be taken up for years together. (Paras 59, 60)
(C) Constitution of India, Art.32, Art.226, Art.50 - WRITS - DIRECTIVE PRINCIPLES -
Powers of Court - Courts cannot give directions of legislative or executive nature - Per
Markandey Katju, J.
H.K. Sema, J. Contra - Observations in 2008 AIR SCW 406, Dissented from. (Paras
18, 5)
(D) Constitution of India, Art.226 - WRITS - PUBLIC INTEREST LITIGATION - PIL -
Powers of Court - Appointing Committees and giving them powers to issue orders to
public or to authorities - Is unconstitutional.
Per Markandey Katju, J. - Appointing committees by the Courts and giving these
committees power to issue orders to the authorities or to the public be wholly
unconstitutional. The power to issue a mandamus or injunction is only with the Court.
The Court cannot abdicate its function by handing over its powers under the Constitution
or the C. P. C. or Cr. P. C. to a person or committee appointed by it. Such 'outsourcing' of
judicial functions is not only illegal and unconstitutional, it is also giving rise to adverse
public commet due to the alleged despotic behaviour of these committees and some other
appointed by the Court to gather some information and/or give some suggestions to the
Court in a matter pending before it, but the Court cannot arm such a committee to issue
orders which only a Court can do. (Para 36)
(E) Constitution of India, Art.21 - RIGHT TO LIFE - OBJECT OF AN ACT - Scope -
Art.21 is not a 'brahmastra' for judiciary to justify every kind of directive.
Per Markandey Katju, J. - Art. 21 is not a 'brahmastra' for judiciary to justify every kind
of directive. (Para 37)
The country can ill afford to be governed through Court decrees. Any such attempt will
not only be grossly undemocratic, it would be most hazardous as the Courts do not have
the expertise or resources in this connection. The judiciary is not in a position to provide
solutions to each and every problem, although human ingenuity would not be lacking to
give it some kind of shape or semblance of a legal or constitutional right, e.g. by resorting
to Art. 21. (Para 45)
(F) Constitution of India, Art.226, Art.50 - WRITS - DIRECTIVE PRINCIPLES -
Judicial activism - Taking over functions of legislature or executive - Not justified.
Per Markandey Katju, J. - The justification given for judicial activism is that the
executive and legislature have failed in performing their functions. Even if this allegation
is true, it does not justify the judiciary in taking over the functions of the legislature or
executive, firstly because that would be in violation of the high constitutional principle of
separation of powers between the three organs of the State, and secondly because the
judiciary has neither the expertise nor the recources for this. If the legislature or executive
are not functioning properly it is for the people to correct the defects by exercising their
franchise properly in the next elections and voting for candidates who will fulfill their
expectations, or by other lawful means e. g. peaceful demonstrations and agitations, but
the remedy is surely not by the judiciary in taking over the functions of the other organs.
(Para 40)
The worst result of judicial activism is unpredictability. Unless Judges exercise self
restraint, each Judge can become a law unto himself and issue directions according to his
own personal fancies, which will create chaos. (Para 47)
The people must know that Courts are not the remedies for all ills in society. The
problems confronting the nation are so huge that it will be creating an illusion in the
minds of the people that the judiciary can solve all the problems. No doubt, the judiciary
can make some suggestions /recommendations to the legislature or the executive, but
these suggestions/recommendations cannot be binding on the legislature or the executive,
otherwise there will be violation of the seven Judge Bench decision of
@page-SC2118
the Supreme Court in 2002 AIR SCW 1841, and violation of the principle of separation
of powers. The judiciary must know its limits and exercise judicial restraint. The people
must also realize that the judiciary has its limits and cannot solve all their problems,
despite its best intentions. The problems facing the people of India have to be solved by
the people themselves by using their creativity and by scientific thinking and not by using
judicial crutches like PILs. These problems (e. g. poverty, unemployment, price rise,
corruption, lack of education, medical aid and housing, etc.) are so massive that they can
only be solved by certain historical, political and social forces that can only be generated
by the people themselves using their creativity and scientific thinking. (Paras 53, 54,
55, 56)
2008 AIR SCW 406 (Diss. from Prt C) 5, 18, 30, 63
2007 AIR SCW 5551 : AIR 2007 SC 3074 (Ref.) 43
2006 AIR SCW 894 : AIR 2006 SC 3517 (Ref.) 36
2005 AIR SCW 46 : AIR 2005 SC 540 (Ref.) 67, 69
2005 AIR SCW 6380 : AIR 2006 SC 767 (Ref.) 36, 42
2004 AIR SCW 2673 : AIR 2004 SC 2538 (Ref.) 37
2004 All LJ 239 : 2004 AIHC 1133 (Ref.) 36
2002 AIR SCW 1841 : AIR 2002 SC 1856 : 2002 Cri LJ 2547 (Ref.) 19, 20, 21, 22,
23, 27, 29, 63
2002 AIR SCW 2186 : AIR 2002 SC 2112 (Ref.) 6, 7, 39
1998 AIR SCW 3208 : AIR 1998 SC 3281 : 1998 Cri LJ 4596 (Ref.) 22, 25, 26
1997 AIR SCW 4023 : AIR 1998 SC 74 (Ref.) 44
2002 AIR SCW 4154 : AIR 1998 SC 190 : (Ref.) 17, 49
1996 AIR SCW 2178 : AIR 1996 SC 1864 (Ref.) 45
1991 AIR SCW 2754 : AIR 1992 SC 96 (Ref.) 35, 36
AIR 1991 SC 101 : 1991 Lab IC 91 (Ref.) 47
AIR 1990 SC 334 (Ref.) 38, 40, 42
AIR 1989 SC 1899 (Ref.) 30, 52
AIR 1988 SC 1531 : 1988 Cri LJ 1661 (Ref.) 23, 24
AIR 1986 SC 180 (Ref.) 47
AIR 1981 SC 746 : 1981 Cri LJ 306 (Ref.) 47
AIR 1978 SC 597 28, 47
(1958) 356 US 86 : 2 Law Ed 2d 630 52
AIR 1955 SC 549 (Ref.) 51
B. Datta, ASG, T.L.V. Iyer, Sr. Advocate, Prashant Bhushan, Rohit Kumar Singh, Sumeet
Sharma, Mayank Misra, Somesh Ratta, Mrs. Asha G. Nair, D.S. Mahra, Sanjeev K.
Bhardwaj, S. Wasim A. Qadri, Mrs. Anil Katiyar, Ravindra Keshavrao Adsure, Tara
Chandra Sharma, Ms. Neelam Sharma, Sanjay R. Hegde, B. Krishna Prasad,
Subramonium Prasad, V.G. Pragasam, S.J. Aristotle, Prabhu Ramasubramanian, for
appearing parties.
* The Judgments are printed in the order in which they are given in the certified copy -
Ed.
Judgement
H. K. SEMA, J. :- This petition has been filed in the form of public interest litigation by
Common Cause (A Registered Society) through its Director Shri H.D. Shourie r/o A-31,
West End, New Delhi.
2. At the risk of Writ Petition, the petitioner sought for the following reliefs :
(i) to issue a Writ, direction or order in the nature of mandamus and/or any other writ,
direction or order directing the Respondent No. 1, in consultation with representatives of
the Respondent Nos. 2, 3, 4, 5 and 6 and also representatives of other States/ UTs :-
(a) to set up fully satisfactory procedures of licensing of vehicles and licensing of drivers,
for ensuring that the vehicles are fully equipped with all the safety travel requirements,
and also ensure that drivers of private vehicles as well as drivers of public vehicles
including buses and trucks, are fully trained and are competent to drive the respective
types of vehicles, and to also organize high-level training arrangements for the drivers of
respective types of vehicles; appropriate procedures should also be ensured for
suspension/cancellation of driving licences in the event of any default or for involvement
in any accident;
(b) to ensure provision of all infrastructural requirements of roads, including
@page-SC2119
signs, signals, footpaths, repairs of roads, and all such other requirements which will help
to minimise risks of accidents on the roads;
(c) to set up methodology and requirements for undertaking scientific analysis of every
accident, for ensuring that similar causes do not recur which can lead to accidents,
thereby minimizing the possibilities of accidents;
(d) to establish suitable organizations for providing education to all types of users of
roads, through experts as well as use of suitably devised visual and audio media;
(e) to ensure the availability of ambulances for immediate removal of injured persons to
hospitals;
(f) to set up Committees of Experts in each State/UT and in the bigger cities for dealing
with these various requirements for minimization of accidents on the roads;
(ii) to direct Respondent No. 1 to formulate a suitable Road Traffic Safety Act to meet
effectively the various requirements for minimization of road accidents; and
(iii) to pass such other and further orders as may be deemed necessary to deal effectively
with the various matters relating to traffic safety on the roads and minimization of road
accidents, on the facts and in the circumstances of the case.
3. I had the privilege of going through the erudite judgment prepared by my learned
brother Justice Katju and I respectfully agree with the conclusion reached by my brother
Katju that the Writ Petition be dismissed. While coming to this conclusion brother Katju
was of the opinion that the Motor Vehicles Act is a comprehensive enactment on the
subject. He was further of the opinion that if there is lacuna or defect in the Act it is for
the legislature to correct it by a suitable amendment and not by the Court. I am also of the
view that the relief sought for in this Writ Petition is adequately taken care of by the
Motor Vehicles Act itself and if there is any lacuna or defect, it is the legislature to correct
it by amending the Act and not the Court.
4. I however, respectfully dissociating myself from certain general observations of my
learned brother in paragraphs 36, 37, 38, 39, 43, 44, 45, 46, 47, 48, 49, 50, 52, 53 and 55
in the judgment, expressing doubts about the jurisdiction of this Court entertaining the
petition in the form of public interest litigation.
5
. I also respectfully disagree with certain observations made by a two-Judge Bench of this
Court in the case of Divisional Manager, Aravali Golf Course and Anr. v. Chander
Hass,JT 2008 (3) SC 221, as referred to by my learned brother in Para 8 of his judgment.
2008 AIR SCW 406
(Para 18)
. In the case of Union of India vs. Association for Democratic Reforms and another
(2002) 5 SCC 294, raised the substantial question of law of public importance was
whether in a nation constitutionally wedded to republican and democratic form of
Government, where election as a Member of Parliament or as a Member of Legislative
Assembly is of utmost importance for democratic form of thecountry, before casting
votes, voters have a right to know relevant particulars of their candidates; and whether
the High Court had jurisdiction to issue directions in a Writ Petition filed under Article
226 of the Constitution of India? The High Court of Delhi entertained the writ petition
and directed the Election Commission to secure to voters the following information
pertaining to each of the candidates contesting election to Parliament and to the State
Legislatures and the parties they represent : 2002 AIR SCW 2186
1. Whether the candidate is accused of any offence(s) punishable with imprisonment. If

so, the details thereof.
2. Assets possessed by a candidate, his or her spouse and dependent relations.
3. Facts giving insight into the candidate's competence, capacity and suitability for acting
as a parliamentarian or a legislator including details of his/her educational qualifications.
4. Information which the Election Commission considers necessary for judging the
capacity and capability of the political party fielding the candidate for election to
Parliament or the State Legislature.
7
. Aggrieved by the aforesaid direction of the High Court, an appeal was filed before the
Supreme Court by the Union of India. A three-Judge Bench of this Court, of which one of
us was a party (Sema, J.), in Union of India vs. Association for Democratic Reforms and
Another (supra) upheld the direction, repelling the arguments of the appellant 2002
AIR SCW 2186, Paras 21 and 22
@page-SC2120
this Court held :
"The Supreme Court cannot give any directions for amending the Act or the statutory
Rules. It is for Parliament to amend the Act and the Rules. It is also established law that
no direction can be given, which would be contrary to the Act and the Rules. However, it
is equally settled that in case when the Act or Rules are silent on a particular subject and
the authority implementing the same has constitutional or statutory power to implement
it. the Court can necessarily issue directions or orders on the said subject to fill the
vacuum or void till a suitable law is enacted." (Emphasis supplied)
8
. Further, in paragraph 46 (6) of the judgment it is held : Para 56 (6) of AIR SCW
"46(6). On cumulative reading of a plethora of decisions of this Court as referred to, it is

clear that if the field meant for legislature and executive is left unoccupied detrimental to
the public interest, this Court would have ample jurisdiction under Article 32 read with
Articles 141 and 142 of the Constitution to issue necessary directions to the executive to
subserve public interest."
(Emphasis supplied)
9. Therefore, whether to entertain the petition in the form of Public Interest Litigation
either represented by public-spirited person; or private interest litigation in the guise of
public interest litigation; or publicity interest litigation; or political interest litigation is to
be examined in the facts and circumstances recited in the petition itself. I am also of the
view that if there is a buffer zone unoccupied by the legislature or executive which is
detrimental to the public interest, judiciary must occupy the field to subserve public
interest. Therefore, each case has to be examined on its own facts.
10. In my considered opinion, therefore, the blanket bar of the application in the form of
PIL is obviated. Subject to aforesaid, I agree with the conclusion of my learned Brother
that the petition be dismissed.
11. MARKANDEY KATJU, J:- This writ petition under Article 32 of the Constitution
furnishes a typical illustration of how public interest litigation which was conceived and
created as a judicial tool by the courts in this country for helping the poor, weaker and
oppressed sections of society, who could not approach the court due to their poverty, has
over the years grown and grown, and now it seems to have gone totally out of control,
and has become something so strange and bizarre that those who had created it probably
would be shocked to know what it has become.
12. The petitioner is a society registered under the Societies Registration Act which
claims to be engaged in espousing problems of general public importance.
13. In the present case, the petitioner has referred to the rising number of road accidents
in the country which are taking place in cities, towns and on national highways causing
deaths, injuries etc. The petitioner has referred to the defects in the licensing procedure,
the training of drivers, and the need for suspending licences in case of negligent driving,
and driving under the influence of alcohol, which cause accidents etc. He has also
referred to the inadequate infrastructure relating to roads and inadequate provisions of
traffic control devices including traffic signals, traffic signs, road devices and other road
safety measures. It has been stated in the petition that there should be proper and
continuous coordination between various authorities which are connected with roads and
control of traffic, and for this purpose the only appropriate remedy is to establish Road
Safety Committees. The petitioner has also emphasized the need for having readily
available ambulances for shifting the injured persons in road accidents to hospitals for
immediate treatment.
14. The petitioner has also stated that there should be road safety education for the users
of roads, pedestrians, traffic participants including cyclists, handcarts men, bullock-cart
drivers etc., who generally have low socio-economic and educational background and do
not know traffic rules and regulations. The petitioner has alleged that pedestrians and
non-motorized traffic face enormous risks as they account for 60% to 80% of road traffic
fatalities in the country. All non-motorized traffic need to be given thorough and repeated
orientation in observance of road traffic rules and avoidance of any situations which can
cause accidents. These road safety education programmes can include written material for
those who are literate and also illustrations, slides, specially prepared films, and also
publicity
@page-SC2121
through the medium of TV and radio.
15. The petitioner has also alleged that there is a paramount need for enactment of a Road
Traffic Safety Act to lay down regulations dealing with specific responsibilities of
drivers, proper maintenance of roads and traffic-connected signs and signals etc., and all
rules and regulations for observance by all concerned including pedestrians and non-
motorized traffic. The Road Traffic Safety Act should contain all the regulations and the
requirements relating to avoidance of accidents, responsibilities of respective
Departments of State Governments, Municipal bodies, Police authorities, and the penalty
for non-observance of prescribed regulations. The Act should specify the duties,
responsibilities, rights, directives and punishments in case of failures by any one e.g.
driver, vehicle, road user, etc.
16. The petitioner has alleged that the number of accidents has increased greatly over the
years in India and hence he has filed this writ petition with the following prayers :
(i) to issue a Writ, direction or order in the nature of mandamus and /or any other writ,
direction or order directing respondent No. 1 (the Union of India) in consultation with
representatives of respondent Nos. 2, 3, 4, 5 and 6 (the Government of NCT of Delhi, and
the State Governments of Maharashtra, Tamil Nadu, West Bengal and Karnataka) and
also representatives of other States/ UTs :-
(a) to set up fully satisfactory procedures of licensing of vehicles and licensing of drivers,
for ensuring that the vehicles are fully equipped with all the safety travel requirements,
and also ensure that drivers of private vehicles as well as drivers of public vehicles
including buses and trucks, are fully trained and are competent to drive the respective
types of vehicles, and also to organize high-level training arrangements for the drivers of
respective types of vehicles; appropriate procedures for suspension/cancellation of
driving licenses in the event of any default or for involvement in any accident;
(b) to ensure provision of all infrastructural requirements of roads, including signs,
signals, footpaths, repairs of roads, and all such other requirements which will help to
minimize risks of accidents on the roads;
(c) to set up methodology and requirements for undertaking scientific analysis of every
accident, for ensuring that similar causes do not recur which can lead to accidents,
thereby minimizing the possibilities of accidents;
(d) to establish suitable organizations for providing education to all types of users of
roads, through experts as well as use of suitably devised visual and audio media;
(e) to ensure the availability of ambulances for immediate removal of injured persons to
hospitals;
(f) to set up Committees of Experts in each State/UT and in the bigger cities for dealing
with these various requirements for minimization of accidents on the roads;
(ii) to direct respondent No. 1 to formulate a suitable Road Traffic Safety Act to meet
effectively the various requirements for minimization of road accidents; and
(iii) to pass such other and further orders as may be deemed necessary to deal effectively
with the various matters relating to traffic safety on the roads and minimization of road
accidents, on the facts and in the circumstances of the case.
17
. Shri Prashant Bhushan, learned counsel for the petitioner has relied on the decision of
the three-Judge Bench of this Court in M.C. Mehta v. Union of India, AIR 1998 SC 190,
in which the following directions have been given : 1997 AIR SCW 4154
"A. The Police and all other authorities entrusted with the administration and
enforcement of the Motor Vehicles Act and generally with the control of the traffic shall
ensure the following :
(a) No heavy and medium transport vehicles, and light goods vehicle being four wheelers
would be permitted to operate on the roads of the NCR and NCT, Delhi, unless they are
fitted with suitable speed control devices to ensure that they do not exceed the speed limit
of 40 KMPH. This will not apply to transport vehicles operating on Inter-State permits
and national goods permits. Such exempted vehicles would, however, be confined to such
routes and such timings during day and night as the police/ transport authorities may
publish. It is made clear that no vehicle would be permitted on roads other than the
aforementioned exempted
@page-SC2122
roads or during the times other than the aforesaid time without a speed control device.
(b) In our view the scheme of the Act necessarily implies an obligation to use the vehicle
in a manner which does not imperil public safety. The authorities aforesaid should,
therefore, ensure that the transport vehicles are not permitted to overtake any other four-
wheel motorized vehicle.
(c) They will also ensure that wherever it exists, buses shall be confined to the bus lane
and equally no other motorized vehicle is permitted to enter upon the bus lane. We direct
the Municipal Corporation of Delhi, NDMC, PWD, Delhi Government and DDA, Union
Government and the Delhi Cantt. Board to take steps to ensure that bus lanes are
segregated and roads markings are provided on all such roads as may be directed by the
police and transport authorities.
(d) They will ensure that buses halt only at bus stops designated for the purpose and
within the marked area. In this connection also Municipal Corporation of Delhi, NDMC,
PWD, Delhi Cantt. Board would take all steps to have appropriate bus stops constructed,
appropriate markings made, and 'bus-bays' built at such places as may be indicated by
transport/police authorities.
(e) Any breach of the aforesaid directions by any person would, apart from entailing other
legal consequences, be dealt with as contravention of the conditions of the permit which
could entail suspension/cancellation of the permit and impounding of the vehicle.
(f) Every holder of a permit issued by any of the road transport authorities in the NCR
and NCT, Delhi will within ten days from today, file with its RTA a list of drivers who are
engaged by him together with suitable photographs and other particulars to establish the
identity of such persons. Every vehicle shall carry a suitable photograph of the authorized
driver, duly certified by the RTA. Any vehicle being driven by a person other than the
authorized driver shall be treated as being used in contravention of the permit and the
consequences would accordingly follow.
No bus belonging to or hired by an educational institution shall be driven by a driver who
has
- less than ten years of experience;
- been challaned more than twice for a minor traffic offence;
- been charged for any offence relating to rash and negligent driving.
All such drivers would be dressed in a distinctive uniform, and all such buses shall carry
a suitable inscription to indicate that they are in the duty of an educational institution.
(g) To enforce these directions, flying squads made up of inter-departmental teams
headed by an SDM shall be constituted and they shall exercise powers under Section 207
as well as Section 84 of the Motor Vehicles Act.
The Government is directed to notify under Section 86(4) the officers of the rank of
Assistant Commissioners of Police or above so that these officers are also utilized for
constituting the flying squads.
(h) We direct the police and transport authorities to consider immediately the problems
arising out of congestion caused by different kinds of motorized and non-motorized
vehicles using the same roads. For this purpose, we direct the police and transport
authorities to identify those roads which they consider appropriate to be confined only to
motorized traffic including certain kind of motorized traffic and identify those roads
which they consider unfit for use by motorized or certain kinds of motorized traffic and to
issue suitable directions to exclude the undesirable form of traffic from those roads.
(i) The civil authorities including DDA, the Railways, the police and transport authorities,
are directed to identify and remove all hoardings which are on roadsides and which are
hazardous and a disturbance to safe traffic movement. In addition, steps be taken to put
up road/traffic signs which facilitate free flow of traffic.
B. We direct the Union of India to ensure that the contents of this Order are suitably
publicized in the print as well as the electronic media not than November 22, 1997 so that
everybody is made aware of the directions contained in the Order. Such publication
would be sufficient public notice to all concerned for due compliance."
18
. In our opinion the prayers made by the petitioner in this petition require us to give
directions of a legislative or executive nature which can only be given by the legislature
or executive. As held by this Court 2008 AIR SCW 406
@page-SC2123
in Divisional Manager, Aravali Golf Course and Anr. v. Chander Hass, JT 2008 (3) SC
221, the judiciary cannot encroach into the domain of the legislature or executive. The
doctrine of separation of powers has been discussed in great detail in the aforesaid
decision, and we endorse the views expressed therein.
19
. We are fully conscious of the fact that the decision cited by Shri Prashant Bhushan viz.
M.C. Mehta vs. Union of India (supra), is a decision of a three-Judge Bench of this Court
and would ordinarily have been binding on us since our Bench consists of two Judges.
However, a subsequent seven- Judge Bench decision of this Court in P. Ramachandra Rao
vs. State of Karnataka, 2002 (4) SCC 578, has taken the view that such directions cannot
be given. In para 26 of theaforesaid decision of the seven-Judge Bench in P.
Ramachandra Rao's case (supra), it was observed : 1997 AIR SCW 4154
2002 AIR SCW 1841, Para 27
"Professor S.P. Sathe, in his recent work (year 2002) Judicial Activism in India -
Transgressing Borders and Enforcing Limits, touches the topic "Directions : A new Form
of Judicial Legislation." Evaluating legitimacy of judicial activism, the learned author has
cautioned against court "legislating" exactly in the way in which a legislature legislates
and he observes by reference to a few cases that the guidelines laid down by court, at
times, cross the border of judicial law-making in the realist sense and trench upon
legislating like a legislature.
"Directions are either issued to fill in the gaps in the legislation or to provide for matters
that have not been provided by any legislation. The court has taken over the legislative
function not in the traditional interstitial sense but in an overt manner and has justified it
as being an essential component of its role as a constitutional court."
"In a strict sense these are instances of judicial excessivism that fly in the face of the
doctrine of separation of powers. The doctrine of separation of powers envisages that the
legislature should make law, the executive should execute it, and the judiciary should
settle disputes in accordance with the existing law. In reality such watertight separation
exists nowhere and is impracticable. Broadly, it means that one organ of the State should
not perform a function that essentially belongs to another organ. While law-making
through interpretation and expansion of the meanings of open-textured expressions such
as 'due process of law', 'equal protection of law', or 'freedom of speech and expression' is
a legitimate judicial function, the making of an entirely new law...through directions....is
not a legitimate judicial function."
(Emphasis supplied)
20
. The aforesaid seven-Judge Bench decision of this Court in P. Ramachandra Rao's case
(supra) has referred with approval the observations made in the book Judicial Activism in
India - Transgressing Borders Enforcing Limits' by Prof. S.P. Sathe. In that book the
learned author has referred to the directions of a legislative nature given by various two-
Judge and three-Judge Bench decisions of this Court in P.I.Ls. The learned author has
remarked that these were not legitimate exercise of judicial power. 2002 AIR SCW 1841
21. The position has thus been clarified by the seven-Judge Bench decision of this Court
in P. Ramachandra Rao's case (supra) which has clearly observed (in paras 22-27) that
giving directions of a legislative nature is not a legitimate judicial function. A seven-
Judge Bench decision of this Court will clearly prevail over smaller Bench decisions.
22
. In P. Ramachandra Rao's case (supra), the question considered by the seven-Judge

Bench was whether the bar of limitation for criminal trials fixed by smaller Benches of
this Court in Common Cause vs. Union of India, 1996 (4) SCC 33; Rajdeo Sharma (I) vs.
State of Bihar, 1998 (7) SCC 507 and Rajdeo Sharma (II) v. State of Bihar, 1999 (7) SCC
604 was valid. The seven-Judge Bench of this Court was of the view that the directions
given by the smaller Benches decisions mentioned above were invalid as they amounted
to directions of a legislative nature which only the legislature could give. 2002 AIR
SCW 1841
1996 AIR SCW 2279
1998 AIR SCW 3208
23
. In the aforesaid decisions of smaller Benches (which were overruled by the seven-Judge
Bench decision in P. Ramachandra Rao's case) the Courts were concerned with delay in
disposal of criminal cases, particularly since the right to a speedy trial had been held to be
part of Article 21 of the Constitution by a seven-Judge Bench decision 2002 AIR
SCW 1841
AIR 1988 SC 1531
@page-SC2124
of this Court in A.R. Antulay vs. R.S. Nayak, 1988 (2) SCC 602.
24
. Following Antulay's case, a two-Judge Bench of this Court in Common Cause vs. Union
of India, 1996 (4) SCC 33, held that if there was delay in disposal of certain kinds of
criminal cases beyond a period specified by the Court the accused must be released on
bail, and in certain other kinds of cases the criminal case itself should be closed. Thus by
judicial verdict the Benchfixed a limitation period in certain kinds of criminal cases.
1996 AIR SCW 2279
25
. Thereafter in Rajdeo Sharma (I) vs. State of Bihar, 1998 (7) SCC 507, a three-Judge
Bench of this Court directed that in certain kinds of criminal cases the trial court shall
close the prosecution evidence on completion of a certain period from the date of
recording the plea of the accused on the charges framed, and in certain cases if the
accused has been in jail for at least half the maximum period of punishment prescribed he
shall be released on bail. 1998 AIR SCW 3208
26
. In Rajdeo Sharma (II) vs. State of Bihar, 1999 (7) SCC 604 a three-Judge Bench of this
Court clarified certain directives in Rajdeo Sharma (I) vs. State of Bihar (supra). 1999
AIR SCW 3522
1998 AIR SCW 3208
27
. The correctness of the aforesaid three decisions of this Court was considered by the
seven-Judge Constitution Bench in P. Ramachandra Rao's case (supra) and the seven-
Judge Bench held that these decisions were incorrect as they amounted to impermissible
legislation by the judiciary (vide para 23). The seven-Judge Bench was of the view that in
its zeal to protect the right to speedy trial of an accused the Court cannot devise and enact
bars of limitation when the legislature and statute have chosen not to do so. In paragraphs
26 and 27 of the judgment in P. Ramachandra Rao's case (supra) the seven-Judge Bench
of thisCourt has clearly held that directives of a legislative nature cannot be given by the
Court, since legislation is the task of the legislature and not of the Court. 2002 AIR
SCW 1841
28. Before proceeding further, we would like to make it clear that we are not against all
judicial activism. Judicial activism can be both legitimate as well as illegitimate. For
example, when the Courts have given an expanded meaning of Articles 14 and 21 of the
Constitution vide Maneka Gandhi vs. Union of India, AIR 1978 SC 597, it was a case of
legitimate judicial activism because the Court gave a wider meaning to Articles 14 and 21
in the light of the new developments in the country. This was a perfectly legitimate
exercise of power.
29
. However, as pointed out by the seven-Judge Bench decision of this Court in P.

Ramachandra Rao's case (supra), when Judges by judicial decisions lay down a new
principle of law of the nature specifically reserved for the legislature, they legislate, and
not merely declare the law (vide para 22 of the decision in P. Ramachandra Rao's case).
This is an illegitimate exercise of power and many such illustrations of illegitimate
exercise of judicial power have been given inProf. S.P. Sathe's book 'Judicial Activism in
India' which has been referred to with approval by the seven-Judge Bench decision of this
Court. 2002 AIR SCW 1841
30
. These are instances of judicial excessivism that fly in the face of the doctrine of
separation of powers which has been broadly (though not strictly), envisaged by the
Constitution vide Divisional Manager, Aravali Golf Club and Anr. vs. Chander Hass and
Anr., JT 2008 (3) SC 221; Asif Hameed vs. State of Jammu and Kashmir, JT 1989 (2) SC
548 etc. In other words, while expansion of the meanings of statutory or constitutional
provisions by judicial interpretation is alegitimate judicial function, the making of a new
law which the Courts in this country have sometimes done, is not a legitimate judicial
function. The Courts of the country have sometimes clearly crossed the limits of the
judicial function and have taken over functions which really belongs either to the
legislature or to the executive. This is unconstitutional. If there is a law, Judges can
certainly enforce it. But Judges cannot create a law by judicial verdict and seek to enforce
it. 2008 AIR SCW 406
AIR 1989 SC 1899
31. Moreover, it must be realized by the courts that they are not equipped with the skills,
expertise or resources to discharge the functions that belong to the other coordinate
organs of the Government (the legislature and executive). Its institutional equipment is
wholly inadequate for undertaking legislative or administrative functions.
@page-SC2125
32. As observed by Hon'ble Dr. Justice A.S. Anand, former Chief Justice of India :
"Courts have to function within the established parameters and constitutional bounds.
Decisions should have a jurisprudential base with clearly discernible principles. Courts
have to be careful to see that they do not overstep their limits because to them is assigned
the sacred duty of guarding the Constitution. Policy matters, fiscal, educational or
otherwise, are thus best left to the judgment of the executive. The danger of the judiciary
creating a multiplicity of rights without the possibility of adequate enforcement will, in
the ultimate analysis, be counter productive and undermine the credibility of the
institution. Courts cannot "create rights" where none exists nor can they go on making
orders which are incapable of enforcement or violative of other laws or settled legal
principles. With a view to see that judicial activism does not become "judicial
adventurism", the courts must act with caution and proper restraint. They must remember
that judicial activism is not an unguided missile - failure to bear this in mind would lead
to chaos. Public adulation must not sway the Judges and personal aggrandizement must
be eschewed. It is imperative to preserve the sanctity and credibility of judicial process. It
needs to be remembered that courts cannot run the Government. The judiciary should act
only as an alarm bell; it should ensure that the executive has become alive to perform its
duties."
33. We respectfully agree with the views stated above.
34. Before proceeding further, we may state that the Motor Vehicles Act is a
comprehensive enactment on the subject. If there is a lacuna or defect in the Act, it is for
the legislature to correct it by a suitable amendment and not by the Court. What the
petitioner really prays for in this petition is for various directions which would be
legislative in nature, as they would amount to amending the Act.
35
. In Union of India and Anr. vs. Deoki Nandan Aggarwal, AIR 1992 SC 96, a three-Judge
Bench of this Court observed (vide paragraph 14) : 1991 AIR SCW 2754
"It is not the duty of the Court either to enlarge the scope of the legislation or the
intention of the legislature when the language of the provision is plain and unambiguous.
The Court cannot rewrite, recast or reframe the legislation for the very good reason that it
has no power to legislate. The power to legislate has not been conferred on the courts.
The Court cannot add words to a statute or read words into it which are not there.
Assuming there is a defect or an omission in the words used by the legislature the Court
could not go to its aid to correct or make up the deficiency. Courts shall decide what the
law is and not what it should be. The Court of course adopts a construction which will
carry out the obvious intention of the legislature but could not legislate itself. But to
invoke judicial activism to set at naught legislative judgment is subversive of the
constitutional harmony and comity of instrumentalities. Modifying and altering the
scheme and applying it to others who are not otherwise entitled to under the scheme will
not also come under the principle of affirmative action adopted by courts sometimes in
order to avoid discrimination. If we may say so, what the High Court has done in this
case is a clear and naked usurpation of legislative power."
36
. This Court cannot direct legislation vide Union of India vs. Prakash P. Hinduja (2003) 6
SCC 195 : AIR 2003 SC 2612 (vide SCC para 30: AIR para 29) and it cannot legislate
vide Sanjay Kumar vs. State of U.P., 2004 All LJ 239; Verareddy Kumaraswamy Reddy
vs. State of A.P. (2006) 2 SCC 670 : JT; (2006) 2 SC 361, Suresh Seth vs. Commr.,
Indore Municipal Corporation (2005) 13 SCC 287 : AIR 2006 SC 767 (vide para 5) and
Union of India vs. Deoki Nandan Aggarwal, 1992 Supp (1) SCC 323 : AIR 1992 SC 96.
2003 AIR SCW 3258
2006 AIR SCW 894
2005 AIR SCW 6380
1991 AIR SCW 2754
37
. The Court should not encroach into the sphere of the other organs of the State vide N.K.
Prasada vs. Govt. of India (2004) 6 SCC 299 : JT 2004 Supp (1) SC 326 (vide paras 27
and 28). 2004 AIR SCW 2673
38. Thus in Supreme Court Employees' Welfare Assn. vs. Union of India (1989) 4 SCC
187 : AIR 1990 SC 334 (vide SCC p. 220, para 55) this Court observed :
"There can be no doubt that an authority exercising legislative function cannot be
directed to do a particular act. Similarly the President of India cannot be directed by the
@page-SC2126
court to grant approval to the proposals made by the Registrar General of the Supreme
Court, presumably on the direction of the Chief Justice of India."
39
. In Union of India vs. Assn. for Democratic Reforms (2002) 5 SCC 294 : AIR 2002 SC
2112 (vide AIR para 21) this Court observed (SCC p. 309, para 19) : 2002 AIR
SCW 2186
"19. At the outset, we would say that it is not possible for this Court to give any
directions for amending the Act or the statutory rules. It is for Parliament to amend the
Act and the Rules. It is also established law that no direction can be given, which would
be contrary to the Act and the Rules."
40
. In Union of India v Prakash P. Hinduja (2003) 6 SCC 195 : AIR 2003 SC 2612 (vide
AIR para 29) this Court observed (SCC pp. 216-17, para 30) : 2003 AIR SCW 3258
"Under our constitutional scheme Parliament exercises sovereign power to enact laws and
no outside power or authority can issue a direction to enact a particular piece of
legislation. In Supreme Court Employees' Welfare Assn. vs. Union of India, it has been
held that no court can direct a legislature to enact a particular law. Similarly, when an
executive authority exercises a legislative power by way of a subordinate legislation
pursuant to the delegated authority of a legislature, such executive authority cannot be
asked to enact a law which it has been empowered to do under the delegated legislative
authority. This view has been reiterated in State of J.and K. vs. A.R. Zakki, 1992 Supp (1)
SCC 548 : AIR 1992 SC 1546." AIR 1990 SC 334
1992 AIR SCW 1711
41. A perusal of the prayers made in this writ petition (which have been quoted above)
clearly shows that what the petitioner wants us to do is legislation by amending the law.
In our opinion, this will not be a legitimate judicial function. The petitioner has prayed
that we direct the Union of India to formulate a suitable Road Traffic Safety Act, but it is
well settled that the Court cannot direct legislation. In fact, there is already a Road Safety
Council as contemplated by Section 215 of the Motor Vehicles Act, reference of which
has been made in the counter-affidavit of the Central Government in which it has been
stated that Central Government has constituted a National Road Safety Council which has
held various meetings. It is an apex body comprising of Transport Ministers of various
States and Union Territories, DG Police of various States/ Union Territories,
representatives of various Central Ministries and agencies apart from NGOs and experts
in the field of road safety. In the deliberations of National Road Safety Council
suggestions received from various quarters as also the measures being taken by the
Ministry regarding road safety as also the areas of concern have been considered. In the
counter-affidavit, various other steps taken by the respondent No. 1 regarding road safety
have also been mentioned in detail. Some of the other respondents have also filed their
counter-affidavits mentioning the measures taken for road safety, and we have perused
the same.
42
. In Suresh Seth v. Commissioner, Indore Municipal Corporation and others, JT 2005 (9)
SC 210, a three-Judge Bench of this Court rejected the petitioner's prayer that appropriate
amendment be made to the M.P. Municipal Corporation Act, 1956 debarring a person
from holding two elected offices viz. that of a member of the Legislative Assembly and
also of Mayor of a Municipal Corporation. The Court observed : 2005 AIR SCW 6380,
Para 5
"That apart this Court cannot issue any direction to the Legislature to make any particular
kind of enactment. Under our constitutional scheme Parliament and Legislative
Assemblies exercise sovereign power or authority to enact laws and no outside power or
authority can issue a direction to enact a particular piece of legislation. In Supreme Court
Employees Welfare Association vs. Union of India (JT 1989 (3) SC 188 : (1989) 4 SCC
187) it has been held that no court can direct a legislature to enact a particular law.
Similarly, when an executive authority exercises a legislative power by way of a
subordinate legislation pursuant to the delegated authority of a legislature, such executive
authority cannot be asked to enact a law which it has been empowered to do under the
delegated legislative authority." AIR 1990 SC 334
43
. In Bal Ram Bali and Anr. vs. Union of India, JT 2007 (10) SC 509, a petition under
Article 32 was filed praying for a mandamus directing for a total ban of slaughtering of
cows, horses, buffaloes, etc. Rejecting this contention this Court observed : 2007
AIR SCW 5551
@page-SC2127
"It is not within the domain of the Court to issue a direction for ban on slaughter of cows,
buffaloes and horses as it is a matter of policy on which decision has to be taken by the
Government. That apart, a complete ban on slaughter of cows, buffaloes and horses, as
sought in the present petition, can only be imposed by legislation enacted by the
appropriate legislature. Courts cannot issue any direction to the Parliament or to the State
Legislature to enact a particular kind of law."
44
. As observed by a three-Judge Bench of this Court in Institute of Chartered Accountants

of India vs. Price Waterhouse and Anr., 1997 (6) SCC 312 (vide para 50), Judges should
not proclaim that they are playing the role of a law-maker merely for an exhibition of
judicial valour. They have to remember that there is a line, though thin, which separates
adjudication from legislation. That line should not be crossed. 1997 AIR SCW 4023
45
. In Madhu Kishwar and Ors. vs. State of Bihar and Ors., 1996 (5) SCC 125 (vide para 5),
this Court observed that the Court is not fully equipped to cope with the details and
intricacies of the legislative subject, and it can at best advise and focus attention on the
State policy on a problem and shake it from its slumber, goading it to awaken, march and
reach the goal. Thus, the Court can play a catalytic role with regard to the social and
economic problems of the people.However, whatever the concern of the Court, it has to
apply somewhere and at sometimes brakes to its self-motion, described in judicial
parlance as judicial self-restraint. In particular, Courts must not legislate or perform
executive functions. 1996 AIR SCW 2178
46. We would also like to advert to orders by some Courts appointing committees giving
these committees power to issue orders to the authorities or to the public. This is wholly
unconstitutional. The power to issue a mandamus or injunction is only with the Court.
The Court cannot abdicate its function by handing over its powers under the Constitution
or the C.P.C. or Cr.P.C. to a person or committee appointed by it. Such 'outsourcing' of
judicial functions is not only illegal and unconstitutional, it is also giving rise to adverse
public comment due to the alleged despotic behaviour of these committees and some
other allegations. A committee can be appointed by the Court to gather some information
and/or give some suggestions to the Court on a matter pending before it, but the Court
cannot arm such a committee to issue orders which only a Court can do.
47. We have gone deep into the subject of Judicial activism and public interest litigation
because it is often found that courts do not realize their own limits. Apart from the
doctrine of separation of powers, courts must realize that there are many problems before
the country which courts cannot solve, however much they may like to. It is true that the
expanded scope of Articles 14 and 21 which has been created by this Court in various
judicial decisions e.g. Smt. Maneka Gandhi vs. Union of India and Anr., AIR 1978 SC
597, have given powerful tools in the hands of the Judiciary. However, these tools must
be used with great circumspection and in exceptional cases and not as a routine manner.
In particular, Article 21 of the Constitution must not be misused by the Courts to justify
every kind of directive, or to grant every kind of claim of the petitioner. For instance, this
Court has held that the right to life under Article 21 does not mean mere animal
existence, but includes the right to live with dignity vide Olga Tellis vs. Bombay
Corporation, AIR 1986 SC 180; D.T.C. vs. D.T.C. Mazdoor Congress Union, AIR 1991
SC 101 (paras 223, 234, 259); Francis Coralie Mullin vs. Union Territory Delhi
Administrator, AIR 1981 SC 746. However, these decisions must be understood in a
balanced way and not in an unrealistic sense. For example, there is a great deal of poverty
in this country and poverty is destructive of most of the rights including the right to a
dignified life. Can then the Court issue a general directive that poverty be abolished from
the country because it violates Article 21 of the Constitution? Similarly, can the Court
issue a directive that unemployment be abolished by giving everybody a suitable job?
Can the Court stop price rise which now-a-days has become an alarming phenomenon in
our country? Can the Court issue a directive that corruption be abolished from the
country? Article 21 is not a 'brahmastra' for the judiciary to justify every kind of
directive.
48. The concern of the petitioner is that many people die in road accident. But many
people also die due to murders. Should then the Court issue a general directive that
murders be not committed in the country
@page-SC2128
And how would such a directive (even if issued) be implemented?
49
. We would be very happy to issue such directives if they could really be implementable.
However, the truth is that they are not implementable (for various reasons, particularly
lack of financial and other resources and expertise in the matter). For instance, the
directives issued by this Court regarding road safety in M.C. Mehta's case (supra) hardly
seem to have had any effect because everyday we read in the newspapers or see the news
on TV about Blueline buses killing or injuring people. In the Hawala case (Vineet Narain
vs. Union of India, AIR 1998 SC 889) a valiant I effort was made by this Court to check
corruption, but has it made even a dent on the rampant corruption prevailing in the
country? It is well settled that futile writs should not be issued by the Court. 1997
AIR SCW 4154
1998 AIR SCW 645
50. The justification given for judicial activism is that the executive and legislature have
failed in performing their functions. Even if this allegation is true, does it justify the
judiciary in taking over the functions of the legislature or executive? In our opinion it
does not, firstly because that would be in violation of the high constitutional principle of
separation of powers between the three organs of the State, and secondly because the
judiciary has neither the expertise nor the resources for this. If the legislature or executive
are not functioning properly it is for the people to correct the defects by exercising their
franchise properly in the next elections and voting for candidates who will fulfil their
expectations, or by other lawful means e.g. peaceful demonstrations and agitations, but
the remedy is surely not by the judiciary in taking over the functions of the other organs.
51. In Ram Jawaya vs. State of Punjab, AIR 1955 SC 549 (vide paragraph 12), a
Constitution Bench of this Court observed :
"The Indian Constitution has not indeed recognized the doctrine of separation of powers
in its absolute rigidity but the functions of the different parts or branches of the
Government have been sufficiently differentiated and consequently it can very well be
said that our Constitution does not contemplate assumption by one organ or part of the
State, of functions that essentially belong to another."
(Emphasis supplied)
52. Similarly, in Asif Hameed vs. State of Jammu and Kashmir, AIR 1989 SC 1899 a
three-Judge Bench of this Court observed (vide paragraphs 17 to 19) :
"Before adverting to the controversy directly involved in these appeals we may have a
fresh look on the inter se functioning of the three organs of democracy under our
Constitution. Although the doctrine of separation of powers has not been recognized
under the Constitution in its absolute rigidity but the Constitution makers have
meticulously defined the functions of various organs of the State. Legislature, executive
and judiciary have to function within their own spheres demarcated under the
Constitution. No organ can usurp the functions assigned to another. The Constitution
trusts to the judgment of these organs to function and exercise their discretion by strictly
following the procedure prescribed therein. The functioning of democracy depends upon
the strength and independence of each of its organs. Legislature and executive, the two
facets of people's will, have all the powers including that of finance. Judiciary has no
power over sword or the purse nonetheless it has power to ensure that the aforesaid two
main organs of State function within the constitutional limits. It is the sentinel of
democracy. Judicial review is a powerful weapon to restrain unconstitutional exercise of
power by the legislature and executive. The expanding horizon of judicial review has
taken in its fold the concept of social and economic justice. While exercise of powers by
the legislature and executive is subject to judicial restraint, the only check on our own
exercise of power is the self-imposed discipline of judicial restraint.
Frankfurter, J. of the U.S. Supreme Court dissenting in the controversial expatriation case
of Trop v. Dulles (1958) 356 US 86, observed as under :
"All power is, in Madison's phrase, "of an encroaching nature". Judicial power is not
immune against this human weakness. It also must be on guard against encroaching
beyond its proper bounds, and not the less so since the only restraint upon it is self-
restraint.............."
(Emphasis supplied)
53. The directives sought for in this petition require the expertise of administrative and
technical officials, apart from financial
@page-SC2129
resources. Not only should the Court not give such directives because that would violate
the principle of separation of powers, but also because these are highly technical matters
to be left to be dealt with by administrative and technical authorities who have experience
and expertise in the matter. For instance, what should be the maximum permissible speed
for vehicles in a city, where should speed breakers be fixed, when should heavy vehicles
be allowed on roads, and other matters for ensuring road safety are all matters to be dealt
with by the concerned authorities under the Motor Vehicles Act and other enactments,
and it would be wholly inappropriate for the judiciary to meddle in such matters.
Decisions on such matters by the judiciary land the administrative agencies in practical
difficulties and make them bear the brunt of the decisions of the Court some of which are
wholly oblivious to administrative needs and as such ill- conceived.
54. Moreover, if once the Courts take upon themselves the task of issuing ukases as to
how administrative agencies should function, what is there to prevent them from issuing
directions as to how the State Government or Central Government should administer the
State and run the country? In our opinion such an approach would not only disturb the
delicate balance of powers between the three wings of the State, it would also strike at the
very basis of our democratic polity which postulates that the governance of the country
should be carried on by the executive enjoying the confidence of the legislature which is
answerable and accountable to the people at the time of elections. Such an approach
would in our opinion result in judicial oligarchy dethroning democratic supremacy.
55. In our opinion the Court should not assume such awesome responsibility even on a
limited scale. The country can ill-afford to be governed through court decrees. Any such
attempt will not only be grossly undemocratic, it would be most hazardous as the Courts
do not have the expertise or resources in this connection. The judiciary is not in a position
to provide solutions to each and every problem, although human ingenuity would not be
lacking to give it some kind of shape or semblance of a legal or constitutional right, e.g.
by resorting to Article 21.
56. When other agencies or wings of the State overstep their constitutional limits, the
aggrieved parties can always approach the courts and seek redress against such
transgression. If, however, the court itself becomes guilty of such transgression, to which
forum would the aggrieved party appeal? As the ancient Romans used to say "Who will
guard the Praetorian guards?" The only check on the courts is its own self-restraint.
57. The worst result of judicial activism is unpredictability. Unless Judges exercise self-
restraint, each Judge can become a law unto himself and issue directions according to his
own personal fancies, which will create chaos.
58. It must be remembered that a Judge has to dispense justice according to the law and
the Constitution. He cannot ask the other branches of the State to keep within their
constitutional limits if he exceeds his own.
59. As stated by A.G. Noorani in his article on 'Judicial Activism vs. Judicial Restraint'
(published in SPAN magazine of April/May, 1997 edition) :
"Zeal leads Judges to enter areas with whose terrain they are not familiar; to order
minutiae of administration without reckoning with the consequences of their orders.
Judges have made orders not only how to run prisons but also hospitals, mental homes
and schools to a degree which stuns the professional. In their judgments they draw on
material which is untested and controversial and which they are ill-equipped to evaluate."
60. In our opinion adjudication must be done within the system of historically validated
restraints and conscious minimization of the Judges' preferences. The Court must not
embarrass the administrative authorities and must realize that administrative authorities
have expertise in the field of administration while the Court does not. In the words of
Chief Justice Neely, former Chief Justice of the West Virginia State Supreme Court :
"I have very few illusions about my own limitations as a Judge. I am not an accountant,
electrical engineer, financier, banker, stockbroker or system management analyst. It is the
height of folly to expect Judges intelligently to review a 5000 page record addressing the
intricacies of a public utility operation. It is not the function of a Judge to act as a super
board, or with the zeal of a
@page-SC2130
pedantic school master substituting his judgment for that of the administrator."
61. As observed by Mr. Justice Cardozo of the U.S. Supreme Court :
"The Judge, even when he is free, is still not wholly free. He is not to innovate at
pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty
or of goodness. He is to draw his inspiration from consecrated principles. He is not to
yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a
discretion informed by tradition, methodized by analogy, disciplined by system, and
subordinated to "promotional necessity of order in the social life."
(see Cardozo's 'The Nature of the Judicial Process')
62. Chapter VIII of the Motor Vehicles Act, 1988 has provisions for control of traffic.
These include fixing limits of speed (S. 112), : restriction on use of certain vehicles (S.
115), power to erect traffic signs (S. 116), fixing parking places (S. 117), making driving
regulations (S. 118), duty to obey traffic signs '(S. 119), requirement for drivers to make
such signals as are prescribed (S. 121), safety measures for drivers and pillion riders on
two wheelers (S. 128), wearing of protective headgear (S. 129), etc. These provisions are
obviously meant for road safety, and if further provisions are required for this purpose the
petitioner may approach the legislature or concerned authority for this purpose, but this
Court can certainly not amend the law.
63
. The people must know that Courts are not the remedy for all ills in society. The
problems confronting the nation are so huge that it will be creating an illusion in the
minds of the people that the judiciary can solve all the problems. No doubt, the judiciary
can make some suggestions/recommendations to the legislature or the executive, but
these suggestions/recommendations cannot be binding on the legislature or the executive,
otherwise there will be violation of the seven-Judge Bench decision of this Court in P.
Ramachandra Rao's case (supra), and violation of the principle of separation of The
judiciary must know its limits and exercise judicial restraint vide Divisional Manager,
Aravali Golf Course and Anr. vs. Chander Hass, JT 2008 (3) SC 221.The people must
also realize that the judiciary has its limits and cannot solve all their problems, despite its
best intentions. 2002 AIR SCW 1841
2008 AIR SCW 406
64. The problems facing the people of India have to be solved by the people themselves
by using their creativity and by scientific thinking and not by using judicial crutches like
PILs.
65. These problems (e.g. poverty, unemployment, price rise, corruption, lack of
education, medical aid and housing, etc.) are so massive that they can only be solved by
certain historical, political and social forces that can only be generated by the people
themselves using their creativity and scientific thinking.
66. The view that the judiciary can run the Government and can solve all the problems of
the people is not only unconstitutional, but also it is fallacious and creates a false
impression and false illusion that the Judiciary is a panacea for all ills in society. Such
Illusions, in fact, do great harm to the people because it makes the people believe that
their problems can be solved by others and not by the people themselves. It debilitates
their will and makes them believe that they can solve their problems and improve their
conditions not by their own struggles and creativity but by filing a PIL in Court.
67
. Before concluding, we would like to refer to the decision of this Court in Dattaraj
Nathuji Thaware vs. State of Maharashtra, AIR 2005 SC 540, in which Hon'ble Pasayat,
J. expressed the view about Public Interest Litigation in the following memorable words :
"It is depressing to note that on account of such trumpery proceedings initiated before the
Courts, innumerable days are wasted, which time otherwise could have been spent for the
disposal of cases of the genuine litigants. Though we spare no efforts in fostering and
developing the laudable concept of PIL and extending our long arm of sympathy to the
poor, the ignorant, the oppressed and the needy whose fundamental rights are infringed
and violated and whose grievances go unnoticed, unrepresented and unheard; yet we
cannot avoid but expressing our opinion that while genuine litigants with legitimate
grievances relating to civil matters involving properties worth hundreds of millions of
rupees and criminal cases in which persons sentenced
@page-SC2131
to death facing gallows under untold agony and persons sentenced to life Imprisonment
and kept in incarceration for long years, persons suffering from undue delay in service
matters, Government or private, persons awaiting the disposal of cases wherein huge
amounts of public revenue or unauthorized collection of tax amounts are locked up,
detenus expecting their release from the detention orders etc. etc, are all standing in a
long serpentine queue for years with the fond hope of getting into the Courts and having
their grievances redressed, the busybodies, meddlesome interlopers, wayfarers or
officious interveners having absolutely no public interest except for personal gain or
private profit either of themselves or as proxy of others or for any other extraneous
motivation or for glare of publicity break the queue muffing their faces by wearing the
mask of public interest litigation and get into the Courts by filing vexatious and frivolous
petitions and thus criminally waste the valuable time of the Courts, as a result of which
the queue standing outside the doors of the Courts never moves, which piquant situation
creates frustration in the minds of the genuine litigants and resultantly they lose faith in
the administration of our judicial system."
68. In the same decision it has also been observed that PIL is a weapon which is to be
used with great care and circumspection.
69
. Unfortunately, the truth is that PILs are being entertained by many courts as a routine
and the result is that the dockets of most of the superior courts are flooded with PILs,
most of which are frivolous or for which the judiciary has no remedy. As stated in
Dattaraj Nathuji Thaware's case (supra), public interest litigation has now-a-days largely
become 'publicity interest litigation', 'private interest litigation', or 'politics interest
litigation' or the latest trend 'paise income litigation'. Much of P.I.L. is really blackmail.
2005 AIR SCW 46
70. Thus, Public Interest Litigation which was initially created as a useful judicial tool to
help the poor and weaker section of society who could not afford to come to courts, has,
in course of time, largely developed into an uncontrollable Frankenstein and a nuisance
which is threatening to choke the dockets of the superior courts obstructing the hearing of
the genuine and regular cases which have been waiting to be taken up for years together.
71. With the above observations, the Writ Petition is dismissed.
Petition dismissed.
AIR 2008 SUPREME COURT 2131 "Noorjahan v. State"
(From : Madras)*
-2008.
Noorjahan v. State.
(A) Penal Code (45 of 1860), S.304B, S.498A - DOWRY DEATH - CRUELTY BY
HUSBAND OR HIS RELATIVE - Sections not mutually inclusive - They deal with
distinct offences. (Para 11)
(B) Penal Code (45 of 1860), S.498A - CRUELTY BY HUSBAND OR HIS RELATIVE -
DOWRY DEATH - EVIDENCE - Dowry death - Conviction - No evidence to show that
appellant who was aunt of husband of deceased was either present when demand was
made or she herself made any demand - Her conviction cannot be maintained.
Criminal Appeal (MD) No. 283 of 2004, D/-22-03-2007 (Mad), Reversed. (Paras 13, 14)
K. Ragendra Chowdhary, Sr. Advocate, V. Ramasubramanian, for Appellant; V.G.

Pragasam, S. Aristotle, Prabhu Ramasubramanian, for Respondent.
* Cri. Appeal (MD) No. 283 of 2004, D/- 22-3-2007 (Mad).
Judgement
1. Dr. ARIJIT PASATAT, J. :-Leave granted.
2. Challenge in this appeal is to the judgment of a Division Bench of the Madras High
Court dismissing the appeal of the appellant and upholding the conviction for offence
punishable under Section 498-A of the Indian Penal Code, 1860 (in short the 'IPC')
recorded and imposed by the learned District and Sessions Judge, Karur in S.C. No. 1 /
2004. Several persons who had faced trial had preferred the appeal. Accused Nos. 1 to 5
and 7 i.e. present appellant were found guilty of offence punishable under Section 498-A
IPC. Accused Nos. 1 to 5 were found guilty under Section 302 IPC.
3. In appeal it was held that A-1 and A-2 were guilty of offence punishable under Section
@page-SC2132
302 IPC and, therefore, their conviction as recorded by the trial Court was affirmed.
Conviction of A-3, A-4 and A-5 for offence punishable under Section 302 IPC was set
aside. In respect of offence punishable under Section 498-A the conviction in respect of
A-1 to A-5 and A-7 was confirmed. Appellant is A-7.
4. Background facts as projected by prosecution in a nutshell are as follows :
The marriage between A-1 and Syed Ali Fathima (hereinafter referred to as the deceased)
took place on 22-4-2001. A-2 is the brother of A-1. A-3 and A-4 are the sisters of A-1 and
A-5 is the mother and A-6 is the father of A-1. A-7 is the aunt of A-1. PW-1 is the mother
of the deceased. At the time of marriage, PW-1 paid Rs. 5,000/- and three sovereigns of
gold jewels and after a period of two months, A-1 went over to Mumbai seeking for a job.
All the other accused ill treated the deceased stating that the dowry demand was not met.
Prior to the occurrence, A-1 came from Mumbal. PW-1 was summoned. At that time,
there was a demand from A-1, A-2 and A-7, the appellant that 10 sovereigns of gold and a
sum of Rs. 5,000/- towards "Seervarisal" for Ramzan must be paid immediately. A-7, the
appellant, who was present at that time informed PW-1 that she can pay the said demand
within a period of two months.
PW-2 is closely related to PW-1. On 6-3-2000 he came to Pallapatti and went to the
house of PW-1. PW-2 was informed by PW-1 that there was a dowry demand from the
side of the accused. A marriage was scheduled to take place in the house of a neighbour
which is next to the house of A-l and hence on 8-3-2002, PW-2 came there between 11.00
a.m. and 12 noon. He was chatting with the said neighbour. Since PW-2 knew that there
was a dowry demand, he decided to meet the deceased in her house for that purpose.
When he was just getting down through the stair case, he was able to see the house of the
deceased Fathima. A window was open through which he was able to see within 10 feet.
At that time, A-1 and A-2 strangulated the deceased Fathima with a rope and A-3 and A-4
caught hold of both the arms. On seeing this, PW-2 was shocked. When he was
witnessing the occurrence, A-2 saw PW-2. Immediately, PW-2 went over to the place of
PW-1. But he could not meet anybody and he went over to his native place, Salem and
returned on 9-3-2002.
When PW-1 went to the house of the accused, the wife of A-2 locked from inside and
informed that the deceased Fathima was upstairs. When PW-1 went upstairs, she found
only the dead body of her daughter and PW-1 was able to see a ligature mark around the
neck of the deceased. PW-1 immediately came back and informed the relatives and
proceeded to the Police Station. PW-13 the Sub Inspector of Police was on duty on the
day of occurrence. PW-1 gave a complaint at about 1700 hrs which is marked as Ex. P-1
on the strength of which a case came to be registered in Crime No. 49/2002 under Section
174 of the Code of Criminal Procedure, 1973 (in short the 'Code'). Ex.P-11, the FIR was
dispatched to the Court. On receipt of the copy of the FIR PW-14 the Deputy
Superintendent of Police took up investigation, proceeded to the scene of occurrence,
made inspection and prepared Ex.P-2 the observation Mahazar and Ex.P-12 the rough
sketch. He also sent a copy of the FIR to PW-10, the Revenue Divisional Officer. PW-10,
the Revenue Divisional Officer, on receipt of the copy of the FIR proceeded on the place
and also conducted inquest on the dead body in the presence of witnesses and prepared
Ex.P-9; the Inquest Report, wherein he opined that it was not a case of suicide but it was
the death by homicide. He also made enquiries from the witnesses including the accused.
Following the same, the dead body was subjected to post mortem by PW-9, the doctor
attached to the Government Head Quarters Hospital, Karur, who opined that the deceased
appeared to have died of asphyxia due to strangulation about 24-36 hours prior to
autopsy.
Originally, the case was registered under Section 174 of the Code. Later it was converted
into one under Sections 498-A and 302 IPC and the express FIR (Ex.P-13) was
dispatched to the Court.
Pending investigation, A-1 to A-6 were arrested. A-2 came forward to give confessional
statement voluntarily and the same was recorded by PW-13, the Deputy Superintendent
of Police in the presence of witness, pursuant to which A-2 has produced M.O.1-nylon
rope which was recovered under a recovery Mahazar, Ex.P-1.
On completion of the investigation, the Investigating Officer filed the report. The case
was committed to the Court of Session. Necessary charges were framed. In order to
@page-SC2133
substantiate the charges levelled against the accused, the prosecution examined 16
witnesses and relied upon 13 exhibits and 3 material objects. On completion of evidence
on the side of the prosecution, the accused were questioned under Section 313 of the
Code as to the incriminating circumstances found in the evidence of the prosecution
witnesses which they denied as false. The accused examined three witnesses who were all
Medical Officers through whom 5 exhibits were also marked.
The accused persons pleaded innocence and, therefore, trial was held and conviction was
recorded and sentence imposed as noted above.
5. In support of the appeal, learned counsel for the appellant submitted that there was no
evidence so far as the present appellant is concerned to show that any demand for dowry
was made by her. The witnesses had not stated that she was present when the demand was
made. Therefore, it is submitted that the trial Court and the High Court erred in directing
her conviction.
6. In response, learned counsel for the respondent-State supported the judgment of the
trial Court and the appellate Court.
7. Section 498-A appears in Chapter XX-A IPC.
8. Substantive Section 498-A IPC and presumptive Section 113-B of the Indian Evidence
Act, 1872 (in short the 'Evidence Act') have been inserted in the respective statutes by the
Criminal Law (Second Amendment) Act, 1983 and by the Dowry Prohibition
(Amendment) Act, 1986 respectively.
9. Section 498-A of IPC and Section 113-B of the Evidence Act include in their
amplitude past events of cruelty. Period of operation of Section 113-B of the Evidence
Act is seven years, presumption arises when a woman committed suicide within a period
of seven years from the date of marriage.
10. Section 498A reads as follows :
"498A : Husband or relative of husband of a woman subjecting her to cruelty - Whoever,
being the husband or the relative of the husband of a woman, subjects such woman to
cruelty shall be punished with imprisonment for a term which may extend to three years
and shall also be liable to fine.
Explanation- For the purpose of this section 'cruelty' means -
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit
suicide or to cause grave injury or danger to life, limb or health (whether mental or
physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or
any person related to her to meet any unlawful demand for any property or valuable
security or is on account of failure by her or any person related to her to meet such
demand."
"113B : Presumption as to dowry death - When the question is whether a person has
committed the dowry death of a woman and it is shown that soon before her death such
woman has been subjected by such person to cruelty or harassment for, or in connection
with, any demand for dowry, the Court shall presume that such person had caused the
dowry death.
Explanation- For the purposes of this section 'dowry death' shall have the same meaning
as in Section 304-B of the Indian Penal Code (45 of 1860)."
11. Consequences of cruelty which are likely to drive a woman to commit suicide or to
cause grave injury or danger to life, limb or health, whether mental or physical of the
woman is required to be established in order to bring home the application of Section
498A IPC. Cruelty has been defined in the Explanation for the purpose of Section 498A.
Substantive Section 498A IPC and presumptive Section 113B of the Evidence Act have
been inserted in the respective statutes by Criminal Law (Second Amendment) Act, 1983.
It is to be noted that Sections 304B and 498A, IPC cannot be held to be mutually
inclusive. These provisions deal with two distinct offences. It is true that cruelty is a
common essential to both the Sections and that has to be proved. The Explanation to
Section 498A gives the meaning of 'cruelty'.
12. The object for which Section 498-A IPC was introduced is amply reflected in the
Statement of Objects and Reasons while enacting the Criminal Law (Amendment) Act 46
of 1983. As clearly stated therein the increase in the number of dowry deaths is a matter
of serious concern. The extent of the evil has been commented upon by the Joint
Committee of the Houses to examine the work of the Dowry Prohibition Act, 1961. In
some cases, cruelty of the husband and the relatives of the husband which culminate in
suicide by or murder of the helpless
@page-SC2134
woman concerned, constitute only a small fraction involving such cruelty. Therefore, it
was proposed to amend IPC, the Code of Criminal Procedure, 1973 and the Evidence Act
suitably to deal effectively not only with cases of dowry deaths but also cases of cruelty
to married women by the husband, in laws and relatives. The avowed object is to combat
the menace of dowry death and cruelty.
13. So far as the present appellant is concerned, the evidence is inadequate to show that
she was party to any demand for dowry. In fact, PW-1 stated that when she went to the
place of her daughter appellant was present alongwith A-1 and A-2. The said A-1
demanded jewels and presentation of Rs. 5,000/- for Ramzan. She accepted that she told
A-1 and A-2 that she will send the same within a week. The next statement of this witness
is very significant. She (appellant) told that two months' time will be sufficient for
offering the presentation. In other words, she did not make any demand for dowry. That
aspect has been accepted by PW-1. Significantly, this witness in her cross examination
had admitted that appellant is residing at Coimbatore for the last 35 years. She has
categorically admitted that while she went to the house of her daughter, she (appellant)
was not present. Therefore, there is no evidence to show that appellant was either present
when the demand was made or she herself made any demand.
14. Above being the position, the prosecution has failed to establish the accusations
against the appellant. Therefore, her conviction cannot be maintained and is set aside. She
was released on bail by order dated 22-2-2008. In view of the order of acquittal, bail
bonds shall stand discharged.
15. The appeal is allowed.
Appeal allowed.
AIR 2008 SUPREME COURT 2134 "Bharat Karsondas Thakkar v. Kiran Construction
Co."
(From :Bombay)*
Civil Appeal No. 2573 of 2008 (@ SLP (C) No. 2328 of 2007), D/- 9 -4 -2008.
Bharat Karsondas Thakkar v. M/s. Kiran Construction Co. and Ors.
Civil P.C. (5 of 1908), O.6, R.17 - PLEADINGS - AMENDMENT - Amendment of plaint
- Sought in suit for specific performance - Said amendment substantially changing nature
and character of original suit - Not permissible in law.
Appeal No. 745 of 2001 in Chamber Summons No. 1203 of 2000 in Suit No. 1578 of
1981, D/-16-11-2006 (Bom), Reversed. (Paras 21, 22, 26)
2005 AIR SCW 2368 : AIR 2005 SC 2813 (Ref.) 13, 21
2002 AIR SCW 3925 : AIR 2002 SC 3369 (Ref.) 19
1995 AIR SCW 1782 (Rel. on) 14, 23
AIR 1954 SC 75 (Disting.) 18, 22, 23
F. De'Vitre, Sr. Advocate, N. Janandarnan, Mahesh Agarwal, Rishi Agrawala, Gaurav
Goel, Amit Sharma, Ashutosh Garg and E.C. Agrawala, for Appellant; Buddy A.
Ranganadhan, Ms. Dimple Shah, Shiv Kumar Suri, Rajesh Kumar and S.S. Khanduja, for
Respondents.
* Appeal No. 745 of 2001 in Chamber Summons No. 1203 of 2000 in Suit No. 1578 of
1981, D/- 16-11-2006 (Bom).
Judgement
1. ALTAMAS KABIR, J. :- Leave granted.
2. On 27-5-1949 one Sowar Ramji Vaity was given a grant by the Collector of Thane,
which entitled him to lease of the lands in Serial Nos. 83-91 in village Mulund for a term
of 999 years. Sowar Ramji Vaity died in 1965 leaving behind him four legal
representatives, namely, Jagannath, Babu, Vishnu and Bhaskar. On 1-10-1973 the Vaitys
entered into an Agreement with one K.L. Danani to sell their rights and interests in the
said land for a total consideration of Rs. 2 lakhs. In between April and June 1974, Mr.
K.L. Danani constituted a partnership firm with one Mr. K.B. Thakkar and S.S. Thakkar
under the name of M/s. Swas Construction Company. B.K. Thakkar, the appellant herein,
who was then a minor, was also admitted to the benefits of the partnership firm. As his
contribution towards the partnership firm K.L. Danani brought the benefits of the said
Agreement dated 1-10-1973 to the partnership firm. In 1976, with the enactment of the
Urban Land (Ceiling and Regulation) Act, 1976, K.L. Danani claiming to be in
possession of the lands in question under the Agreement dated 1-10-1973 filed a
statement as required under Section 6(1) of the aforesaid Act. On 12-6-1979 the
Government of Maharashtra
@page-SC2135
executed a lease in favour of the Vaitys for a total term of 60 years.
3. Soon, thereafter, on 18-6-1979 the Vaitys entered into another Agreement with M/s.
Modern Development Corporation granting them development rights over the same
properties. Clause 14 of the Agreement mentioned the fact that the Vaitys had entered into
an Agreement to sell the said lands to M/s. Thakkar and Associates. M/s. Modern
Development Corporation, in their turn entered into an Agreement with Kiran
Construction Company, the respondent No. 1 herein, to transfer its beneficial interest in
the suit land, except for Sl. No. 91, in favour of the said respondent No. l. Clause 12 of
the said Agreement required Modern Development Corporation to obtain confirmation
from M/s. Thakkar and Associates that there was no subsisting Agreement for sale in their
favour in respect of the property agreed to be sold.
4. On 18-2-1980 the present appellant Bharat K. Das Thakkar and K.B. Thakkar filed
Suit No. 252 of 1980 in the Bombay High Court against K.L. Danani and S.S. Thakkar
seeking a declaration that a partnership had subsisted between them and that K.L. Danani
and S.S. Thakkar have retired from Swas Construction Company, and, in the alternative,
for an order of dissolution of partnership, accounts, costs and other reliefs. On Notice of
Motion No. 283 of 1980 filed by the appellant and K.B. Thakkar in Suit No. 252 of 1980,
K.L. Danani gave an undertaking not to part with the possession of the suit land pending
disposal of the Notice of Motion. The said Notice of Motion No. 283 of 1980 was finally
disposed of on 9-10-1980 and a Court Receiver was appointed by the Bombay High
Court and put into possession of the suit lands.
5. On 15-5-1981 the Vaitys terminated the Agreement dated 18-6-1979 with M/s. Modern
Development Corporation Limited. Such termination was followed by Suit No. 1578 of
1981 instituted by the respondent No. 1 on 7-9-1981 against the Vaitys and the partners of
M/s. Modern Development Corporation Limited for specific performance of the
Agreements allegedly executed on 18-6-1979 and 24-8-1979. On 14-9-1981 the Bombay
High Court restrained the Vaitys and the partners of M/s. Modern Development
Corporation Limited from selling, transferring or further parting with possession of the
suit lands. Notice of Motion No. 1271 of 1981 on which the above restraint order was
passed was heard on 1-7-1982 and the Vaitys were restrained during the pendency of the
Suit No. 1578 of 1981 from selling, transferring, encumbering the suit property forming
the subject-matter of the Agreement dated 18-6-1979 entered into by the Vaitys with M/s.
Modern Development Corporation Limited.
6. During pendency of the said suit for specific performance filed by respondent No. 1,
all the parties to Suit No. 252 of 1980 arrived at a comprehensive settlement which was
reduced into consent terms which were filed in the said suit pending before the Bombay
High Court. By its order dated 6-5-1998 the Bombay High Court passed a decree in Suit
No. 252 of 1980 on the basis of the consent terms filed by the parties to the suit. By
virtue of the said decree, the Vaitys, inter alia, admitted that an Agreement had been
executed on 1-10-1973 in favour of K.L. Danani and that M/s. Swas Construction
Company was placed in possession of the suit lands on 3-8-1975.
7. Under the consent decree the Court Receiver was entrusted to discharge certain
functions which had been agreed upon and recorded in the consent decree. Pursuant
thereto in January 1999 the Court Receiver took out a Notice of Motion No. 140 of 1999
in Suit No. 1578 of 1981 filed by the Respondent No. 1 praying that the order of
injunction made on 1-7-1982 be vacated. On 25-8-1999 the Vaitys also took out Notice of
Motion No. 2700 of 1999 in the aforesaid suit for the same relief. During the pendency of
the suit the respondent No. 1 took out Chamber Summons No. 1203 of 2000 in his suit
seeking to amend the plaint by joining the respondent No. 13 to 19 as defendants and to
also challenge the consent decree passed by the Bombay High Court in Suit No. 252 of
1980 on 6-5-1998. The High Court dismissed the Chamber Summons No. 1203 of 2003
filed by the respondent No. 1 in his suit and also vacated the injunction granted on 1-7-
1982. As a consequence the other two notices of Motion for vacating the order of
injunction dated 1-7-1982 were allowed. Aggrieved by the said order of the learned
Single Judge dated 21-6-2001, the respondent No. 1 filed Appeal No. 745 of 2001 before
the Division Bench of the High Court. On 16-11-2006 the High Court allowed the
aforesaid appeal, thereby allowing the amendment of the plaint and directed that
@page-SC2136
the amendment to the plaint be effected accordingly.
8. It is the said order of the Division Bench which is the subject-matter of challenge in the
present appeal and raises the question as to whether in a suit for specific performance of
an agreement for sale of immovable property instituted by the beneficiary of the
agreement against the vendor, a stranger or a third party to the agreement who had
acquired an interest in the same property is either a necessary or a proper party to the suit.
In other words, could the appellant herein, who had acquired an independent right in the
suit property by way of a separate decree but was not a party to the agreement between
the respondent No. 1 and M/s. Modern Development Corporation, be added as a party in
the suit for specific performance filed by respondent No. 1 and whether the decree passed
in his favour could be assailed by the respondent No. 1 in his suit for specific
performance.
9. Although, we have set out the facts which are relevant for an understanding of the
circumstances in which the order impugned in this appeal came to be passed, the scope of
the appeal is confined to the question whether the Division Bench of the High Court had
exercised its jurisdiction correctly by allowing the amendment to implead the appellant as
a party to the suit for specific performance filed by respondent No. 1 and also by
allowing the amendment to the pleadings and the prayer in the plaint to include the
following prayers :
"a(i) that this Hon'ble Court be pleased to declare that the decree passed on 6th May,
1998 in Suit No. 252 of 1980 insofar as it relates to the Suit Property more particularly
described in Exhibit 'A' hereto is illegal, null and void and is liable to be quashed and set
aside;
a(ii) that it may be declared that the decree dated 6th May, 1998 passed in Suit No. 252 of
1980 insofar as it relates to the Suit Property more particularly described in Exhibit A
hereto is not binding upon the Plaintiffs herein;
a(iii) that the Court Receiver, High Court, Bombay appointed Receiver in the Suit
property more particularly described in the Exhibit-A hereto be discharged;
b(iii) that the Defendant Nos. 1 to 4(c), and 13 to 18 and herein be ordered and decreed to
pay to the Plaintiffs as and by way of exemplary/punitive damages the sum of Rs. 50
crores together with interest thereon at the rate of 18% per annum from 6th May, 1998 till
payment or realisation.
d(i) that pending hearing and final disposal of the Suit operation of Order dated 6th May,
1998 passed in Suit No. 252 of 1980 insofar as it relates to the Suit property more
particularly described in Exhibit 'A' hereto be stayed."
10. Appearing in support of the appeal, Mr. F. De'Vitre, Senior Advocate, submitted that
the learned Single Judge of the Bombay High Court had dismissed Chamber Summons
No. 1203 of 2000 filed by the respondent No. 1 herein in Suit No.1578 of 1981, mainly
on the ground of limitation holding that the relief claimed by way of amendment of the
plaint for setting aside the consent decree had its origin in the Agreement dated 1-10-
1973 executed by the Vaitys in favour of K.L. Danani and that the same had not been
challenged earlier by the respondent No. 1 despite having knowledge thereof.
11. Mr. De'Vitre, submitted that apart from the above, the fact relating to the earlier
Agreement and the filing of Suit No. 252 of 1980 and the appointment of the Court
Receiver and his taking possession of the suit properties were intimated to the learned
advocate for the Respondent No. 1 by the learned advocate for the petitioner and K.B.
Thakkar by letter dated 27-3-1984 and at least since that date the respondent No. 1 had
knowledge of the earlier Agreement and the consent decree, but he did not take any steps
to amend the plaint of the suit filed by him on 7-9-1981 for specific performance of the
Agreement said to have been executed between the Vaitys and the partners of M/ s.
Modern Development Corporation and between M/s. Modern Development Corporation
and the respondent No. 1. Such amendment was sought to be made only on 5-10-2000 by
way of Chamber Summons No. 1203 of 2000. Mr. De'Vitre submitted that even if the
date of intimation of the filing of Suit No. 252 of 1980 on 27-3-1984 is taken to be
starting point of limitation, even then the later suit filed by respondent had stood barred
by limitation, and it was so held by the learned Single Judge of the Bombay High Court
while rejecting the Chamber Summons No. 1203 of 2000 filed by the respondent No. l.
12. In addition to the above, Mr. De'Vitre
@page-SC2137
submitted that by allowing the amendment sought for by the respondent No. 1 of his
plaint, the Division Bench of the Bombay High Court had allowed the respondent No. 1
to completely change the nature and character of his suit from one for specific
performance of an agreement to one for declaration of title against a third party to the
agreement for which specific performance had been claimed. It was submitted that the
suit, as amended, was no longer maintainable as one under Section 19 of the Specific
Relief Act, 1963.
13
. In support of his aforesaid submission, Mr. De'Vitre referred to and relied on a decision
of a three-Judge Bench of this Court inKasturi vs. Iyyamperumal and others [(2005) 6
SCC 733] where an identical question arose in almost identical circumstances, as to
whether a third party or stranger to the contract could be added in a suit for specific
performance merely in order to find out who is in possession of the contracted property
or to avoid multiplicity of suits and such question was answered in the negative. 2005
AIR SCW 2368
14
. Mr. De'Vitre also referred to another decision of this Court in Anil Kumar Singh vs.
Shivnath Mishra (1995 3 SCC 147) where also, in an almost identical fact-situation, this
Court held that having regard to the provisions of Sections 15 and 16 of the Specific
Relief Act, 1963, the respondent in the said case was neither a necessary nor a proper
party to adjudicate upon the dispute arising in the suit since he was not a party to the
agreement of sale in respect of which specific performance had been prayed. 1995
AIR SCW 1782
15. Relying on the said decisions, Mr. De'Vitre urged that the decision of the Division
Bench of the Bombay High Court impugned in the present appeal was liable to be set
aside.
16. The submissions made on behalf of the appellant was strongly opposed by Mr. Buddy
A. Ranganadhan, learned advocate appearing for the respondents. It was submitted by
him that no prejudice could be caused to the appellant by the amendment of the pleadings
in the respondent's suit since filing of a separate suit for setting aside the consent decree
would only lead to multiplicity of proceedings. In fact, in order to avoid such multiplicity
of proceedings, the High Court had very pragmatically allowed the amendments so that
the said question could also be decided in the suit filed by the respondent No. 1,
inasmuch as, the subject-matter of the suit of the respondent No. 1 and the consent decree
was one and the same. It was urged that having regard to the nature of the claim of the
respondent No. 1, the High Court had on 1st July, 1982, restrained the Vaitys from
selling, tranferring, encumbering, alienating or further parting with the suit property
during the pendency of the suit filed by the respondent No. 1.
17. Mr. Ranganadhan submitted that in the interest of justice and for a complete
adjudication of the rights of the parties inter se in respect of the suit property, the
amendment of the plaint allowed by the High Court should not be disturbed and the
interim order of injunction passed on 1-7-1982 should be allowed to continue.
18. Mr. Ranganadhan referred to the decision of a Bench of three-Judges of this Court in
Durga Prasad vs. Deep Chand (AIR 1954 SC 75) which also involved a suit for specific
performance by a prior purchaser against his vendor and a subsequent purchaser who had
paid the purchase money to the vendor. In the said context, this Court held that in case the
suit filed by the prior purchaser is decreed, then the form of decree should be such as to
direct specific performance of the contract between the vendor and the prior transferee
and to direct the subsequent transferee to join in the conveyance so as to pass on the title
which resides in him to the prior transferee. It was observed that the only work required
to be performed by the subsequent transferee was to pass on his title to the prior
transferee. Mr. Ranganadhan submitted that in this case also, all that the appellant was
required to do in the present suit was to pass on his title, obtained on the basis of the
consent decree, to the respondent No. 1 as plaintiff. Accordingly, in view of the aforesaid
decision, it could not be said that the High Court committed any error in allowing the
impleadment of the appellant in the suit or in allowing the prayers in the plaint to be
amended to include a declaration for declaring the consent decree to be not binding on
the plaintiffs.
19
. Relliance was also placed on another decision of this Court in Sampath Kumar v.
Ayyakannu and Anr. (2002 (7) SCC 559) wherein while considering the provisions of
Order 6, 2002 AIR SCW 3925
@page-SC2138
Rule 17 of the Code of Civil Procedure, hereinafter referred to as the "Code", this Court
observed that amendment of pleadings at a pre-trial stage should be liberally allowed.
20. It was lastly submitted that even on the question of bar of limitation, the Division
Bench of the High Court had erred in holding that the suit was not barred particularly
when the amendment, which was necessitated by the consent decree, related back to the
agreement dated 1st October, 1973. As a consequence, the limitation would run from the
date of the consent decree and not from the date of the agreement dated 1st October,
1973, although, the effect of the decree would relate back to the agreement of 1st
October, 1973.
21
. Having carefully considered the submissions made on behalf of the respective parties,
and the decisions cited on their behalf, we are of the view that the Division Bench of the
High Court erred in law in allowing the amendment of the plaint sought for by the
respondent No. 1 herein as the plaintiff in the suit. Even if the bar of limitation is not
taken into account, the plaintiff, namely, the respondent No. 1 herein, is faced with the
ominous question as to whether the amendment of the pleadings could have at all been
allowed by the High Court since it completely changed the nature and character of the
suit from being a suit for specific performance of an agreement to one for declaration of
title and possession followed by a prayer for specific performance of an agreement of sale
entered into between its assignee and the vendors of the assignees. Along with that is the
other question, which very often raises its head in suits for specific performance, that is,
whether a stranger to an agreement for sale can be added as a party in a suit for specific
performance of an agreement for sale in view of Section 15 of the Specific Relief Act,
1963. The relevant provision of Section 15 with which we are concerned is contained in
clause (a) thereof and entitles any party to the contract to seek specific performance of
such contract. Admittedly, the appellant herein is a third party to the agreement and does
not, therefore, fall within the category of "parties to the agreement". The appellant also
does not come within the ambit of Section 19 of the said Act, which provides for relief
against parties and persons claiming under them by subsequent title. This aspect of the
matter has been dealt with in detail in Kasturi's case (supra). While holding that the scope
of a suit for specific performance could not be enlarged to convert the same into a suit for
title and possession, Their Lordships observed that a third party or a stranger to the
contract could not be added so as to convert a suit of one character into a suit of a
different character. 2005 AIR SCW 2368
22. In the instant case, the appellant obtained the consent decree on the strength of an
agreement said to have been entered into between the Vaitys and K.L. Danani who
brought the said agreement to the partnership which was formed by him with two other
persons. Although, this fact was brought to the notice of the learned advocates for the
respondent No. l on 27th March, 1984, no steps were taken by the said respondent to
amend the plaint at that stage. Instead, the respondent No. 1 waited till a consent decree
was passed before applying for amendment of the plaint. The proper course of action for
the respondent No. 1 would have been to challenge the consent decree not in its suit for
specific performance, but in a separate suit for declaration that the consent decree ought
not to have been passed and the same was not binding on the respondent. By seeking
amendment of the plaint in its suit for specific performance, the respondent No. 1 has
created its own difficulties by substantially changing the nature and character of the
original suit, which is not permissible in law. If, as was held in Durga Prasad's case
(supra), the impleadment of the appellant was only for the purpose of joining him in the
conveyance if the respondent No. 1's suit ultimately succeeded, the ratio of the said
decision would possibly have been applicable to the facts of this case. Unfortunately, that
is not the case here, since the respondent No. 1 has by amending the plaint prayed for a
declaration that the consent decree obtained by the appellant was not binding on him and
also for a declaration that the consent decree was null and void and was liable to be
quashed.
23
. In our view, the decision of this Court in Durga Prasad's case (supra), cannot be brought
to the aid of the case made out by respondent No. 1. Furthermore, the Division Bench of
the High Court also appears to have committed an error in observing that the decision in
Anil Kumar AIR 1954 SC 75
1995 AIR SCW 1782
@page-SC2139
Singh's case (supra) was not applicable to the facts of this case, despite the fact that on a
consideration of the provisions of Order 1, Rule 10 and Order 22, Rule 10 of the Code,
this Court held that since the plaintiff in the said matter was merely seeking the specific
performance of an agreement of sale, any attempt to implead a third party to the contract
in the suit would be hit by the provisions of Section 15 (a) of the Specific Relief Act,
1963. In fact, in Anil Kumar Singh's case (supra) in a suit for specific performance, the
respondent, who was not a party to the contract but wanted to be impleaded as a
defendant on the ground that he had acquired subsequent interest as a co-owner by virtue
of a decree obtained from the court, was held not entitled to be joined as defendant either
under Order 1, Rule 3 or under Order 1, Rule 10(ii) of the Code having regard to the
provisions of Sections 15 and 6 of the Specific Relief Act, 1963.
24. As it appears the respondent No. 1, was proceeding before a wrong forum to establish
its stand that the decree obtained by the appellant was a nullity and was not binding on it.
25. In that view of the matter, although, we are setting aside the order of the Division
Bench of the High Court impugned in this appeal, the respondent No. 1 may, if so
advised, file a separate suit to challenge the consent decree in view of the fact that he had
been pursuing his claim before the wrong forum.
26. We, therefore, allow the appeal and set aside the impugned order of the Division
Bench of the High Court in Appeal No. 745 of 2001 in Chamber Summons No. 1203 of
2000 in Suit No. 1578 of 1981, pending in the Bombay High Court. The respondent No. 1
may file a separate suit to challenge the consent decree obtained by the appellant on 6th
May, 1998 in Suit No. 252 of 1980 filed by the appellant herein and one K.B. Thakkar
against K.L. Danani and S.S. Thakkar and invoke the relevant provisions of the
Limitation Act, 1963, for the period during which he was pursuing his relief against the
consent decree in his suit and the appeals arising therefrom.
Appeal allowed.
AIR 2008 SUPREME COURT 2139 "North Eastern Railway Administration v. Bhagwan
Das"
(From : Uttaranchal)*
Coram : 2 S. B. SINHA AND D. K. JAIN, JJ.
-2008.
North Eastern Railway Administration, Gorakhpur v. Bhagwan Das (D) by L.Rs.
(A) Civil P.C. (5 of 1908), S.107, S.100, O.41, R.27(1)(b) - APPELLATE COURT -
APPEAL - EVIDENCE - HIGH COURT - Additional evidence - Adduction of, at
appellate stage - Permissible - If Court requires it to pronounce judgment or is necessary
for giving Judgment in more satisfactory manner - Application to adduce as additional
evidence official record exposing fraud committed upon Court in obtaining decree - High
Court dismissing appeal even without considering application - Improper.
AIR 1931 PC 143, AIR 1963 SC 1526, Foll. (Paras 13, 14, 17)
(B) Civil P.C. (5 of 1908), O.6, R.17 - AMENDMENT - PLEADINGS - Amendment of
pleadings - Permissible even at appellate stage - Provided amendment does not work
injustice to other party and is necessary for determination of question in controversy.
AIR 1957 SC 363, (1990) 1 SCC 166. Foll. (Para 15)
1994 AIR SCW 243 : AIR 1994 SC 853 (Ref.) 17
(1990)1 SCC 166 (Foll.) 15
AIR 1963 SC 1526 (Foll.) 14
AIR 1957 SC 363 (Foll.) 15
AIR 1931 PC 143 (Foll.) 13, 14
V. Shekhar, Sr. Advocate, Ms. Shilpa Singh, B.K. Prasad, Abhigya, D.S. Mahra, for
Appellant; Anurag Sharma, Prashant Kumar, Arjun Bansal, M/s. AP and J Chambers,
Jitendra Mohan Sharma, for Respondents.
* S. A. No. 8 of 2002, D/- 17-7-2002 (Utr).
Judgement
D. K. JAIN, J. :Leave granted.
2. This appeal by North Eastern Railway Administration arises out of orders dated 17th
July, 2002 and 14th June, 2005 passed by the High Court of Uttaranchal. By the first
impugned order, the second appeal, preferred by the appellant, was dismissed
@page-SC2140
on the ground that no substantial question of law arose for consideration of the Court. By
the same order, the High Court has dismissed one of the applications' filed by the
appellant under Order 6 Rule 17 of the Code of Civil Procedure, 1908 (for short 'C.P.C.'),
seeking leave to amend the written statement, on the ground that such an application
cannot be entertained in the second appeal. An application preferred by the appellant for
review of order dated 17th July, 2002 has been dismissed vide latter order dated 14th
June, 2005.
3. In order to appreciate the issue, requiring determination, a few material facts may be
stated :
The respondent herein instituted a suit for perpetual prohibitory injunction against the
appellant herein, restraining them from interfering in his possession and cultivation of
crop on plot bearing Nos. 129 and 131 situated in village Bhajanpura, Tehsil and District
Champawat. The suit was contested by the appellant on the ground that after acquisition,
the suit land had been transferred to them by the Government.
4. Vide order dated 13th March, 2001, the Trial Court decreed the suit, inter alia, holding
that the respondent is a Bhumidar and in possession of the suit land and the transfer of
possession by the U.P. Government to the appellant was not proved. Against the said
decree, the appellant filed appeal before the District Judge, which was dismissed vide
order dated 13th November, 2001.
5. Being aggrieved, the appellant preferred second appeal before the High Court.
Alleging that the respondent had obtained the decree by concealing material facts, it was
averred that, as per the official records, the name of Kanhai, grandfather of the
respondent, was entered as Maurnsin Khasikar in Varg-2 at Zaman 8 in the revenue
record, which showed that he was simply a Pattedar, while the State of U.P. was its
owner. It was pleaded that vide Government order dated 16th June, 1969 the suit land
(3.615 acres) was ordered to be transferred to the appellant on deposit of Rs. 4855.60p. In
pursuance of the said order, the appellant deposited the money and took possession of the
land in question from Kanhai, who had not only received Rs. 201.56p as compensation
from the Government, he had delivered the possession of the land to the appellant and
had also moved an application to Tehsildar Khatima for deleting his name from the
revenue records. He also gave a statement to the effect that he was not in possession of
the land and, therefore, since October, 1971 the appellant had become the owner in
possession of the land. It was also stated that since the State of U.P. was the owner of the
land, there was no question of acquiring it by issuing notifications under Sections 4 and 6
of the Land Acquisition Act, 1894. It was also alleged that Kanhai had fraudulently,
without getting any notice issued either to the State of U.P. or to the appellant, obtained
the Bhumidhari Sanad in the month of December, 1971, although prior to that period he
had already surrendered possession of the land and was not in possession thereof. It was,
thus, pleaded that Sanad having been obtained by playing fraud, it was null and void and
could not create any right or title in favour of Kanhai. Subsequently, in support of the said
pleas and contentions, in order to bring on record the copies of the official records, the
appellant moved an application under Order 41 Rule 27 C.P.C., before the High Court on
3rd April, 2002.
6. Vide order dated 3rd April, 2002, the High Court directed the Collector, Nainital to
produce the notification under which the suit land had been acquired. Pursuant thereto,
the Collector filed a detailed report, inter alia, pointing out that since the land belonged to
the Government, there was no question of issue of any notification under the Land
Acquisition Act, 1894 and, therefore, the notification/ declaration under Sections 4 and 6
of the Land Acquisition Act, 1894 could not be produced. It was also pointed out that a
sum of Rs. 201.56p had been paid to Kanhai as compensation. However, the High Court
without even referring to the report of the Collector, which, in fact, had been submitted
pursuant to the direction issued by it, dismissed the second appeal, on the afore-stated
ground.
7. Aggrieved, the appellant moved an application seeking review of order dated 17th July,
2002, on the ground that some material facts had escaped the attention of the Court while
passing the order dated 17th July, 2002.
8. During the pendency of the review application, two more applications were filed by the
appellant on 24th March, 2003 and 28th June, 2004 seeking permission to urge additional
grounds in support of the amendment
@page-SC2141
application as well as the review application. As noted above, the review application was
also dismissed.
9. Mr. V. Shekhar, learned senior counsel appearing on behalf of the appellant has
vehemently contended that apart from the fact that the High Court has failed to even take
note of the application filed by the appellant under Order 41 Rule 27 C.P.C., it has
committed grave error in rejecting the amendment application on the ground of its
maintainability at the stage of the second appeal. The submission is that since the
respondent has obtained the decree by concealing material facts, the decree is a nullity
and, therefore, non consideration of the additional material placed on record, has resulted
in grave miscarriage of justice. It is asserted that had the application been allowed, the
additional evidence brought on record by the appellant, which was nothing but a part of
the official record, would have exposed the fraud played by the respondent and in any
case, would have made material difference in the finding recorded by the lower courts. To
buttress the argument, learned counsel has referred us to various documents placed on
record by the appellant.
10. Per contra, learned counsel for the respondent while supporting the order passed by
the High Court has submitted that the appellant cannot be permitted to fill up the lacuna
by adducing additional evidence at this belated stage.
11. We have considered the submissions of the learned counsel in the light of the
documents on record. We are constrained to observe that the High Court has altogether
failed to consider the application filed by the appellant under Order 41 Rule 27 C.P.C. We
also feel that even the application under Order 6 Rule 17 C.P.C. has not been dealt with in
its correct perspective and the High Court was in error in rejecting the same on the sole
ground that such an application was not maintainable at the stage of second appeal.
12. Though the general rule is that ordinarily the appellate court should not travel outside
the record of the lower court and additional evidence, whether oral or documentary is not
admitted but Section 107 C.P.C., which carves out an exception to the general rule,
enables an appellate court to take additional evidence or to require such evidence to be
taken subject to such conditions and limitations as may be prescribed. These conditions
are prescribed under Order 41 Rule 27 C.P.C. Nevertheless, the additional evidence can
be admitted only when the circumstances as stipulated in the said rule are found to exist.
The circumstances under which additional evidence can be adduced are :
(i) the court from whose decree the appeal is preferred has refused to admit evidence
which ought to have been admitted, (clause (a) of sub-rule (1)) or
(ii) the party seeking to produce additional evidence, establishes that notwithstanding the
exercise of due diligence, such evidence was not within the knowledge or could not, after
the exercise of due diligence, be produced by him at the time when the decree appealed
against was passed, (clause (aa) of sub-rule (1) inserted by Act 104 of 1976) or
(iii) the appellate court requires any document to be produced or any witness to be
examined to enable it to pronounce judgment, or for any other substantial cause, (clause
(b) of sub rule (1)).
13. It is plain that under clause (b) of sub-rule (1) of Rule 27 Order 41 C.P.C., with which
we are concerned in the instant case, evidence may be admitted by an appellate authority
if it 'requires' to enable it to pronounce judgment 'or for any other substantial cause'. The
scope of the rule, in particular of clause (b) was examined way back in 1931 by the Privy
Council in Parsotim Thakur and Ors. vs. Lal Mohar Thakur and Ors.1While observing
that the provisions of Section 107 as elucidated by Order 41 Rule 27 are clearly not
intended to allow litigant, who has been unsuccessful in the lower court, to patch up the
weak parts of his case and fill up omissions in the court of appeal, it was observed as
follows :
1 AIR 1931 PC 143.
"Under Cl. (1) (b) it is only where the appellate Court 'requires' it, (i.e., finds it needful)
that additional evidence can be admitted. It may be required to enable the Court to
pronounce judgment or for any other substantial cause, but in either case it must be the
Court that requires it. This is the plain grammatical reading of the sub-clause. The
legitimate occasion for the exercise of this discretion is not whenever before the appeal is
heard a party applies to adduce fresh evidence,
@page-SC2142
but when on examining the evidence as it stands some inherent lacuna or defect becomes
apparent."
14
. Again in K. Venkataramiah vs. A.Seetharama Reddy and Ors.2a Constitution Bench of

this Court while reiterating the afore-noted observations in Parsotim's case (supra),
pointed out that the appellate court has the power to allow additional evidence not only if
it requires such evidence 'to enable it to pronounce judgment' but also for 'any other
substantial cause'. There may well be cases where even though the court finds that it is
able to pronounce judgment on the state of the record as it is, and so, it cannot strictly say
that it requires additional evidence 'to enable it to pronounce Judgment', it still onsiders
that in the interest of justice something which remains obscure should be filled up so that
it can pronounce its judgment in a more satisfactory manner. Thus, the question whether
looking into the documents, sought to be filed as additional evidence, would be necessary
to pronounce judgment in a more satisfactory manner, has to be considered by the Court
at the time of hearing of the appeal on merits. AIR 1963 SC 1526
AIR 1931 PC 143
2 (1963) 2 SCR 35.

15. Insofar as the principles which govern the question of granting or disallowing
amendments under Order 6 Rule 17 C.P.C. (as it stood at the relevant time) are
concerned, these are also well settled. Order 6 Rule 17 C.P.C. postulates amendment of
pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil vs. Kalgonda
Shidgonda Patil and Ors.3which still holds the field, it was held that all amendments
ought to be allowed which satisfy the two conditions : (a) of not working injustice to the
other side, and (b) of being necessary for the purpose of determining the real questions in
controversy between the parties. Amendments should be refused only where the other
party cannot be placed in the same position as if the pleading had been originally correct,
but the amendment would cause him an injury which could not be compensated in costs.
(Also see : Gajanan Jaikishan Joshi vs. Prabhakar Mohanlal Kalwar4)
3 AIR 1957 SC 363.
4 (1990) 1 SCC 166.
16. These are the broad principles to be kept in view while dealing with applications
under Order 41 Rule 27 and Order 6 Rule 17 C.P.C.
17
. It is manifest that in the present case, the High Court did not examine the record of the
case with the thoroughness which was expected at the time of disposal of the pending
applications. On a perusal of the impugned decisions, it is clear that the High Court was
not even aware of the pendency of the application under Order 41 Rule 27 C.P.C. seeking
leave to adduce additional evidence. A perusal of the documents, which came to light
pursuant to the directions given by the High Court on 3rd April, 2002, prima facie, goes
to show that these are likely to widely affect the decision of the Court in one way or the
other. If the stand of the appellant, which, according to them, is borne out from the
documents now on record, is found to be correct, then obviously these will have material
bearing on the core issue, namely, whether the decree dated 13th March, 2001 is a nullity,
having been allegedly obtained by concealing material facts and playing fraud on the
Court. It is trite that a judgment or decree by the first court or by the highest court
obtained by playing fraud on the Court is a nullity and non est in the eyes of law. (See S.
P. Chengalvaraya Naidu vs. Jagannath5and India Household and Healthcare Ltd. vs. LG
Household and Healthcare Ltd.).6In any event, had the Court found the additional
documents, sought to be admitted,necessary to pronounce the judgment in the appeal, in a
more satisfactory manner, it would have allowed the application and, if not, the
application would have been dismissed. Nonetheless, it was bound to consider the
application before taking up the appeal. We say no more at this stage, as the
aforementioned applications are yet to be considered by the High Court on merits in the
light of the legal position, briefly set out hereinabove. In view of the aforenoted factual
scenario, we are of the opinion that the impugned judgment and theorders are erroneous
and cannot be sustained. 1994 AIR SCW 243
2007 AIR SCW 1721
5 (1994) 1 SCC 1.
6 (2007) 5 SCC 512
18. In the result, the appeal is allowed and the judgment and orders dated 17th July, 2002
and 14th June, 2005 are set
@page-SC2143
aside. The matter is remitted back to the High Court, which shall, after hearing the
parties, take a fresh decision on the applications preferred by the appellant under Order
41 Rule 27 and Order 6 Rule 17 C.P.C. and thereafter form its opinion afresh on the
merits of the second appeal. We may clarify that we have not expressed any final opinion
on the merits of the second appeal as well as the applications, which shall be considered
and disposed of by the High Court on their own merit in accordance with law.
19. The appeal stands disposed of accordingly leaving the parties to bear their own costs.
Order accordingly.
AIR 2008 SUPREME COURT 2143 "Om Parkash Batish v. Ranjit Kaur"
-2008.
Om Parkash Batish v. Ranjit @ Ranbir Kaur and Ors.
(A) Workmen's Compensation Act (8 of 1923), S.30 - WORKMEN'S COMPENSATION
- APPEAL - Appeal - Substantial question of law - It will carry the same meaning as is
commonly understood - No distinction can be made between a substantial question of law
for purpose of first appeal and one for second appeal.
Civil P.C. (5 of 1908), S.96, S.100. (Para 13)
(B) Workmen's Compensation Act (8 of 1923), S.30 - WORKMEN'S COMPENSATION
- APPEAL - Appeal - A right of appeal under Act is provided, both to management as also
workman - It cannot be said that, whereas for workman High Court shall exercise a
wider jurisdiction but in event the employer is appellant, its jurisdiction would be limited.
(Para 15)
(C) Workmen's Compensation Act (8 of 1923), S.23 - WORKMEN'S COMPENSATION
- PRACTICE AND PROCEDURE - APPLICABILITY OF AN ACT - Proceedings
before com missioner - Procedure - Provisions of Code of Civil Procedure or of Evidence
Act are not applicable - Commissioner could lay down his own procedures - He could,
for purpose of arriving at truth, rely upon such documents which were produced before it.
(Para 16)
(D) Workmen's Compensation Act (8 of 1923), S.30, S.2(n) - WORKMEN'S
COMPENSATION - APPEAL - HIGH COURT - Appeal against order of Commissioner -
Substantial question of law - Respondent suffered serious injury when he came in contact
with live wire in appellant's building - He was not working with appellant - It was case of
pure and simple accident - Respondent would not be "workman' only because he was
working in connection with appellant's building activity - High Court wrongly proceeded
on basis that appreciation of evidence also would give rise to substantial question of law
and held appellant liable to pay amount of compensation - Impugned order is liable to be
set aside.
F.A.O. No. 64 of 2001, D/-27-09-2005 (H.P.), Reversed. (Paras 8, 19, 23, 24, 25)
(1584) 3 Co. Rep 7a : 76 ER 637 25
J.L. Gupta, Sr. Advocate, Dharamvir Sharma and Tarun Gupta (for Ms. S. Janani), with
him for Appellant; Ravi Bakshi and Yash Pal Chingra, for Respondents.
* F.A.O. No. 64 of 2001, D/- 27-9-2005
Judgement
2. Whether a casual employee who was appointed for a limited period to carry out
repairing job in a building would be a 'workman' within the meaning of the provisions of
Section 2(n) of the Workmen's Compensation Act, 1923 (the Act) is the core question
involved herein.
3. Appellant is the owner of a residential building. It is situated by the side of an
industrial establishment known as M/s. Chandrika Textiles.
4. On or about 30th June, 1996, the predecessor-in-interest of the respondents, Ram Lal,
suffered an accident corning in contact with a high tension electrical wire passing over
the roof of the said M/s. Chandrika Textiles. He suffered injuries as a result thereof. He
was shifted to the Post Graduate Institute of Medical Research, Chandigarh, where his
statement was recorded. He expired on 6th July, 1996.
5. On the premise that the said Ram Lal was a 'workman' under the appellant, a
proceeding was initiated by the Workmen Compensation Commissioner under the Act. In
the said proceeding the parties adduced their respective evidences. One of the contentions
raised by the appellant was that
@page-SC2144
the accident took place when the said Ram Lal was on the roof of the said textile mills
and that he had not been working under him. It was, however, accepted that he had been
working for sometime with the appellant for carrying out repair works. It was
furthermore urged that a casual employee would not be a 'workman' within the meaning
of the provisions of the said Act.
6. The Workmen Compensation Commissioner framed several issues; principal amongst
them were :-
" 1. Whether the deceased Ram Lal was employed as workman by the opposite party in
the relevant date? OPA
4. Whether the application is not maintainable? OPR
The first issue was answered in the negative. The Workmen Compensation Commissioner
on issue No. 4 held :-
"In the nutshell nothing can be derived from the statement of PW-3 Kamal Chand except
that he knew the date of accident i.e. 30-6-1996 at the time which assumably seems to
have been afterthought only. Therefore both the witnesses of the applicants could not
prove the alleged place of accident which resulted into the death of Ram Lal whereas
there is sufficient evidence having been admitted by Achharpal PW about the site of the
accident further having corroboration in the statement of Hamir Chand and Anil Kumar
RWs who are independent witnesses.
Thus the entire evidence of respondents is logical which goes to show that Ram Lal got
shock injuries on the roof of the shed of a closed factory owned by late Partap Singh at
village Khera on 30-6-1996 as per site plan Ex.RW-3/A.
Secondly the contention of respondents that deceased Ram Lal was not covered under the
definition of a workman is not required to be discussed here as the relationship of
employee and worker is not there in this particular case.
In view of the above discussion I hereby hold that the application is not maintainable as
Ram Lal deceased was not workman on the relevant date i.e. 30-6-1996 with the
respondents and he got inflicted by an electric shock at another place than the alleged
one.
Therefore issue No. 4 is decided in favour of the respondents and against the applicants."
7. Respondents herein preferred an appeal thereagainst before the High Court in terms of
Section 30 of the said Act. The High Court framed the following substantial questions of
law.
" 1. Whether the Commissioner has totally failed to appreciate the evidence properly and
legally and as such has caused injustice to the appellants?
2. Whether the Commissioner has wrongly mixed the question of criminal proceedings as
well as the proceedings under the Workmen's Compensation Act and has given wrong
weightage to the police report?
3. Whether the learned Commissioner has wrongly and illegally decided issue No. 4
regarding maintainability of the application?
8. The High Court proceeded on the basis that although an appeal under Section 30 of the
Act lies only on a substantial questions of law, however, total misreading and
misappreciation of evidence would also give rise to the one. It meticulously went into the
deposition of the witnesses examined on behalf of both the parties. It, for the reasons
stated in the impugned judgment, did not accept the statement made by the deceased
which was treated to be the dying declaration on his part.
9. While holding that there was nothing to disbelieve the statement of the widow with
regard to the nature of the injuries suffered by Ram Lal in the accident, the deposition of
the witnesses examined on behalf of the appellant herein was disbelieved holding :-
"Keeping in view the entire evidence and the aforesaid discussion I am of the considered
view that deceased Ram Lal was employed with O.P. Batish and the accident occurred in
the premises of O.P. Batish."
A sum of Rs. 1,66,369.50 ps. was awarded in favour of the respondents. Appellant was
also held liable to pay penalty of 50% of the said amount i.e. Rs. 83,184.75 ps.
10. Mr. Jawahar Lal Gupta, learned senior counsel appearing on behalf of the appellant
would submit that there being no relationship of employer employee by and between the
appellant and the deceased Ram Lal, the impugned judgment is wholly unsustainable.
11. Mr. Yash Pal Dingra, learned counsel appearing on behalf of the respondents, on the
other hand, would contend that the definition of 'workman' as contained in Section 2 (n)
of the Act must be read with the
@page-SC2145
Schedule II appended thereto. It was submitted that only because Ram Lal was a daily
wager, the same would not mean that he was also a casual workman.
12. The Workmen's Compensation Commissioner arrived at a finding of fact that the
accident did not take place at the premises of the appellant. It was on the said premise
that the Workmen's Compensation Commissioner did not deem it fit to go into the
question as to whether late Ram Lal was a workman or not.
13. Section 30 of the Act provides that an appeal shall lie to the High Court on a
substantial question of law. A substantial question of law, in our opinion, will carry the
same meaning as is commonly understood. Distinction sought to be made by Mr. Dhingra
that a substantial question of law for the purpose of a first appeal and one for a second
appeal would be different, cannot be accepted.
14. The right to file an appeal is a statutory right. The Parliament may not provide such a
right at all. The right to file an appeal can be hedged with conditions. A limited right can
also be conferred.
15. A right of appeal under the Act is provided, both to the management as also the
workman. It is difficult to hold that whereas for the workman the High Court shall
exercise a wider jurisdiction but in the event the employer is the appellant, its jurisdiction
would be limited. The High Court unfortunately proceeded on the basis that appreciation
of evidence also would give rise to a substantial question of law.
16. In a proceeding initiated under the Act the provisions of the Code of Civil Procedure
or of the Evidence Act are not applicable. The Commissioner could lay down his own
procedures. He could, for the purpose of arriving at the truth, rely upon such documents
which were produced before it.
17. The incident was reported to the police authorities. The Officer Incharge of the
concerned police station recorded the statement of deceased Ram Lal. The said statement
was marked as Ex.RW-5/A, the translated version whereof reads as under :-
"Stated that I am a resident of aforesaid address and have passed matric. I was working in
Khera Chak in the house of O.P. (Om Parkash) as beldar (daily wager) for about 8 days.
On 30-6-1996 I had gone to Mama's (maternal Uncle's) house at Khera. At about 8.30 in
the morning I climbed on to the roof of the factory which is adjacent to the house of my
maternal uncle just to watch the weather and while away my time, I did not pay attention
to the high tension wire going above the roof. Suddenly by mistake my hand touched the
electric wire and thereafter I do not know what happened. This accident occurred due to
my being electrocuted suddenly. I do not have any suspicion on any person. I do not want
to start any police investigation."
18. The entire approach of the High Court, with respect, as regards the correctness or
otherwise of the said statement is wrong. The statement was recorded by the police
authorities. If that be so, it could be looked into by the Workmen's Compensation
Commissioner. The High Court opined that the Commissioner had mixed up the
proceeding before it with the criminal proceedings. He did not.
19. If the statement of the deceased was admissible in evidence, evidently no case has
been made out for initiating any proceeding under the Act against the appellant. It was a
case of pure and simple accident and that too at a place over which the appellant had no
control. Entering into the realm of appreciation of evidence adduced by the parties per se
is out of bound of an appellate court which is concerned with determination of a
substantial question of law. It is one thing to say that the findings of the Workmen's
Compensation Commissioner were perverse and in arriving at its findings it failed to take
into consideration relevant facts or took into consideration irrelevant factors which were
not germane for the purpose of determining the issue, but whether a witness is
trustworthy or not, has nothing to do with determining into the question of perversity.
20. We may consider the case from another angle. The averments contained in the claim
application are as under :-
"That the deceased Ram Lal S/o. Sh. Ram Rattan R/o. Village Palasra, Tehsil Nalagarh,
Distt. Solan, H.P. was employed as workman for construction work of residential building
of opposite party in the month of June, 1996. The deceased Ram Lal had worked with the
opposite party for 27 days continuously as workman for the repair work of shed at village
Khera, Tehsil Nalagarh, Distt. Solan, H.P."
@page-SC2146
21. The definition of 'workman' as provided in Section 2(n) of the Act, as it stood on the
date of the incident, reads as under :-
"(n) "workman" means any person other than a person whose employment is of a casual
nature and who is employed otherwise than for the purpose of employer's trade or
business who is -
.... .... ....
(ii) employed in any such capacity as is specified in Schedule II,
whether the contract of employment was made before or after the passing of this Act and
whether such contract is expressed or implied, oral or in writing; but does not include any
person working in the capacity of a member of the Armed Forces of the Union and any
reference to a workman who has been injured shall, where the workman is dead, include
a reference to his dependants or any of them.
The ingredients of the said provisions are -
i) the workman must not be employed as a casual workman;
ii) his employment must be in connection with the employer's trade and business.
22. We must, however, place on record that the words beginning from "other than a
person whose employment is of a casual nature and who is employed otherwise than for
the purpose of the employer's trade or business" have been omitted by Act 46 of 2000.
We are, however, considering the statutory provision as it then stood.
23. The workman in the present case was employed for a limited period for carrying out
repair works in a residential house. The same does not, thus, answer the description of a
workman as contained in the provisions of the Act.
24. Schedule II appended to the said Act to which reference was made by Mr. Dhingra, in
our opinion, is not applicable, as it is subject to the provisions of Section 2(1)(n) of the
Act. If, therefore, the law as it then stood would exclude the applicability of the Act,
having regard to the definition of the term "workman" the same cannot be held to include
deceased, only because he was working in connection with a building activity.
Even otherwise, working in a residential house does not satisfy the requirements of law.
25. We must also bear in mind that the very fact that the Act was amended is itself a
pointer to show that the Parliament intended to avoid a mischief which was prevailing.
Applying the principles of mischief rule [Heydon's case (1584) 3 Co. Rep. 7a], it must be
held that prior to the amendment of the definition of "workman", the category of
workman to which Ram Lal belonged did not come within the purview of the provisions
of the said Act.
26. For the reasons abovementioned the impugned Judgment cannot be sustained, which
is set aside accordingly. The appeal is allowed with no order as to cost. However, the
amount paid to the respondents by the appellant, if any, shall not be recovered.
Appeal allowed.
AIR 2008 SUPREME COURT 2146 "Managing Director, State Bank of Hyderabad v. P.
Kata Rao"
(From : 2007 Lab IC 3857 (Andh Pra.))
Coram : 2 S. B. SINHA AND D. K. JAIN, JJ.
Civil Appeal Nos. 2961-2962 of 2008 (arising out of SLP (C) Nos. 14356-14357 of
2007), D/- 24 -4 -2008.
Managing Director, State Bank of Hyderabad and Anr. v. P. Kata Rao
State Bank of India Act (23 of 1955), S.43 - BANKING - DISCIPLINARY
PROCEEDINGS - CRIMINAL TRIAL - MISCONDUCT - HIGH COURT - Disciplinary
proceedings - Impact of findings in criminal trial - Bank official - Misconduct of giving
undue pecuniary benefit to wife and sanction of loans to relatives alleged - Criminal
prosecution initiated simultaneously on same facts - Acquittal of official by criminal
Court - Clear finding by criminal Court that official committed inadvertent mistakes -
Misconduct on his part was neither willful nor there existed any fraudulent intention on
his part - Punishment of dismissal imposed in disciplinary proceedings, in facts of case,
improper - Order passed by High Court to reconsider punishment - Not liable to be
interfered with. (Paras 21, 22, 23, 25, 26, 29)
@page-SC2147
2006 AIR SCW 2709 : AIR 2006 SC 2129 (Ref.) 25, 27

1999 AIR SCW 1098 : AIR 1999 SC 1416 : 1999 Lab IC 1565 (Ref.) 20, 25, 27
Soli J. Sorabjee, Sr. Advocate, A.V. Rangam, Buddy A, Rangadhan, for Appellants;
Respondent in person.
Judgement
2
. Appellant is aggrieved by and dissatisfied with a judgment and order dated 4-6-2007
passed by a Division Bench of the Andhra Pradesh High Court in Writ Appeal No.
627/628 of 2005 whereby and whereunder it refused to interfere with the judgment and
order passed by a learned Single Judge of the said Court in WP No. 476 of 2001.
Reported in 2007 Lab IC 3857
3. Respondent at all material times was an employee in the appellant Bank. He was
placed under suspension on or about 13-8-1998. A departmental proceeding was initiated
against him.
12 items of charges were drawn up; charge Nos. 11 and 15 whereof read as under :
"Charge No. 11:He authorized cash and transfer credits to the demand loan accounts
against pledge of gold ornaments of Smt. P. Lakshmi, his wife, from out of proceeds of
loan amounts released to two DIR and one cash credit borrowers. Thus he facilitated his
wife to get undue pecuniary benefit by permitting unauthorized adjustments which were
done with his prior knowledge.
Charge No. 15:He sanctioned and released loans to his close relatives in contravention of
H.O. Cir. No. ADV/98 of 1976 dated the 2nd December, 1976."
4. He was also proceeded against in a criminal case. He was acquitted of the criminal
charges.
5. However, the departmental proceedings continued during pendency of the criminal
proceedings as prayer for stay thereof was not acceded to. The Enquiry Officer found that
all the charges apart from charge Nos. 1(a), 2(b), 3 were proved.
6. The Appointing Authority passed an order of dismissal. An appeal preferred
thereagainst by the respondent was dismissed.
7. By an order dated 29-12-1995, the appellant was acquitted of the charges framed
against him in the criminal proceeding under Sections 120B, 420 and 468 of the Indian
Penal Code. He was also acquitted of the charges for alleged commission of offences
under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act.
8. Respondent, however, was convicted under Section 477(A) of the Indian Penal Code
as also under Section 5(1)(d) and 5(2) of the Prevention of Corruption Act. He preferred
an appeal thereagainst before the High Court.
A Writ Petition was also filed questioning the said order of dismissal.
9. By an order dated 12-3-1999, a learned Single Judge of the High Court quashed the
order of punishment and directed the disciplinary authority to issue a show cause notice
indicating the modified punishment and pass an appropriate order.
10. A show cause notice was issued, pursuant to the said direction.
11. Again an order of dismissal was passed on 2-7-1999. An appeal preferred thereagainst
was dismissed. Another writ petition was filed by the respondent aggrieved by and
dissatisfied therewith.
12. The Criminal Appeal filed by the appellant came up for consideration before a learned
Single Judge of the High Court and by a judgment and order dated 3-10-2001, it was held
:
"... In such a case, it is difficult to believe that the appellant had any intention to benefit
himself or other persons. It has to be noted that the above reasoning of the trial court is
most perverse and without any material. In my considered view the trial court had
jumped to the conclusion without any basis."
13. As regards, alleged commission of offence under Section 477A of the Indian Penal
Code, it was stated :
"From the above discussion, I am of the considered opinion that the appellant could not
have made the alleged entries willfully and with dishonest intention to defraud. It is
certainly not the case of the prosecution that the appellant had independently committed
the offence under Section 477-A I.P.C. and on the contrary the specific allegation of the
prosecution was that there was conspiracy initially and as such a conspiracy has
culminated into various offences attributable
@page-SC2148
to all the accused and in particular of the offence under Section 477-A against the
appellant.
Therefore, in view of the above observation made by the Apex Court and in view of
peculiar facts and circumstances, in the instant case, it is unsafe to draw any adverse
inference against the appellant that he committed the offence under Section 477-A I.P.C.,
inasmuch as the essential ingredients viz., 'willfulness' and 'intention' to defraud could not
successfully be substantiated by the prosecution against the appellant. Admittedly the
case of the appellant as stated in his examination under Section 313 Cr.P.C., that it was
only a mistake committed inadvertently and from the above facts and circumstances and
the evidence on record, the only inference that can be drawn is that the accused, no doubt,
might have made some wrong entries, but the same cannot be termed as acts of
willfulness and with fraudulent intention to falsify the accounts. Hence the appellant is
entitled for an acquittal for the offence under Section 477-A I.P.C."
The judgment of conviction and sentence under Sections 5(1)(d) and 5(2) of the
Prevention of Corruption Act was also set aside by the High Court opining that the
prosecution had failed to prove the guilt of the accused beyond all reasonable doubts,
holding :
"... In other words when the appellant was acquitted of all the charges including the
charge under Section 477-A, I.P.C. by this Court, it cannot be said that he committed the
offence under the provisions of Prevention of Corruption Act."
14. The Writ Petition filed by the appellant against the order of dismissal passed against
him came up for consideration before a learned Single Judge of the High Court. The High
Court, while passing its judgment dated 7-02-2005, considered the totality of the
circumstances.
As regards the correctness of the order of dismissal, it was opined :
"......The said orders can in no way be considered to be a reason as such for a de novo
consideration on the aspect of punishment and it is also to be noticed that reconsideration
is only in respect of punishment and that too based on the earlier recommendations made
in appeal. Therefore, necessarily it follows that the order of dismissal as was imposed
earlier on 23-07-1994 could not possibly be repeated or restated much less reimposed.
Necessarily it has to be any other punishment other than the order of dismissal or
removal. Further, the specific direction is only to take a follow-up action in terms of the
directions given in the appeal on the earlier occasion. Thus, on a conspectus reading of
the said directions, the only scope left for reconsideration is to once again take into
consideration the earlier directions given in appeal and not otherwise, or to impose any
other punishment much less dismissal order. Having regard to the aforesaid
circumstances and also even taking into account totality of the circumstances vis-a-vis the
allegations as made against him and also the clear acquittal of the petitioner on criminal
side though it may not be binding, necessarily the respondents had to follow the earlier
orders of this Court, since the same are not kept in view and the impugned orders are not
in terms of the said order. Hence, the matter requires to be reconsidered afresh by the
authorities. In the circumstances, it has to be held that the impugned orders of the
respondents in dismissing the petitioner from service are not only contrary to the
directions given by this Court on 12-03-1999 in W.P. No. 16833 of 1994, but also do not
in any way commensurate to the gravity of the allegations as made or found against him."
It was directed :
"In the circumstances, both the Writ Petitions are allowed setting aside both the orders of
respondents dated 02-07-1999 and 02-02-2000 and directing fresh consideration and
disposal of the matter in accordance with law after giving notice and opportunity to the
petitioner. The respondents are also directed to pay subsistence allowance and all such
other allowances to which the petitioner is entitled during the period of his suspension
from 01-08-1994 to 02-07-1999. No costs."
15. An intra-court appeal was preferred thereagainst. The Division Bench, in its
impugned judgment dated 4-06-2007, opined :
"In the present case, we find that the enquiry officer had exonerated the respondent of
charges 1(a), 2(b), 3 and 5, which pertain to misappropriation and deriving of pecuniary
benefits by him. A perusal of the judgment dated 03-10-2001 passed by the learned
Single Judge in Criminal Appeal No.
@page-SC2149
12 of 1996 makes it clear that the respondent was honourably acquitted with an
unequivocal finding that there was neither any loss to the bank nor any pecuniary benefit
was taken by the respondent. Thus, on the crucial issue whether the respondent isguilty of
financial misfeasance and malfeasance, there is no conflict between the findings of the
enquiry officer and the Court,which disposed of the criminal appeal. Since the learned
Single Judge, who decided Writ Petition No. 16833 of 1994 and the appointing authority,
which reconsidered the matter in the light of the direction given by this Court, did not
have the benefit of considering the judgment of acquittal rendered in Criminal Appeal
No. 12 of 1996, the only appropriate course would be to direct the appellants to again
consider the respondent's case and pass appropriate order in accordance with law.
[Emphasis supplied]
It was directed :-
"In the result, Writ Appeal No. 627 of 2005 is dismissed and Writ Appeal No. 628 of
2005 is disposed of with the direction that the appointing authority shall reconsider the
case of the respondent on the issue of quantum of punishment to be imposed on him and
pass appropriate order within six weeks from the date of receipt of copy of this
judgment."
16. Mr. Soli J. Sorabjee, the learned senior counsel appearing on behalf of the appellant
would submit that the High Court committed a serious error in passing the impugned
judgment insofar as it failed to take into consideration :-
(i) That the criminal court merely granted the benefit of doubt in favour of the
respondent; and
(ii) Even an order of acquittal may not be a bar for passing an order of dismissal from
service particularly keeping in view the fact that a bank employee is required to maintain
strict integrity.
17. Mr. P. Kata Rao, the respondent appearing in person, however, would urge that both
the departmental proceedings and the criminal case were based on the same set of facts.
The charge of misconduct against him, it was urged, was based on violation of some
procedural guidelines only and, thus, not grave in nature. It was pointed out that the
learned Single Judge examined the entire records and it had been found that the
respondent is not guilty of any malpractice and furthermore has not derived any
pecuniary benefit. Even the charges of misappropriation, it was urged, have not been
proved against him.
18. There cannot be any doubt whatsoever that the jurisdiction of superior courts in
interfering with a finding of fact arrived at by the Enquiry Officer is limited. The High
Court, it is trite, would also ordinarily not interfere with the quantum of punishment.
There cannot, furthermore, be any doubt or dispute that only because the delinquent
employee who was also facing a criminal charge stands acquitted, the same, by itself,
would not debar the disciplinary authority in initiating a fresh departmental proceeding
and/or where the departmental proceedings had already been initiated or to continue
therewith.
19. We are not unmindful of different principles laid down by this court from time to
time. The approach that the court's jurisdiction is unlimited although had not found
favour with some Benches, the applicability of the doctrine of proportionality, however,
had not been deviated from.
20
. The legal principle enunciated to the effect that on the same set of facts the delinquent
shall not be proceeded in a departmental proceedings and in a criminal case
simultaneously, has, however, been deviated from. The dicta of this Court in Capt. M.
Paul Anthony v. Bharat Gold Mines Ltd. and Another [(1999) 3 SCC 679], however,
remains unshaken although the applicability thereof had been found to be dependant on
the fact situation obtaining in each case. 1999 AIR SCW 1098
21. The case at hand is an exceptional one. Respondent was a responsible officer. He was
holding a position of trust and confidence. He was proceeded with both on the charges of
criminal misconduct as also civil misconduct on the same set of facts, subject, of course,
to the exception that charges Nos. 11 and 15 stricto sensu were not the subject-matter of
criminal proceedings, as integrity and diligence, however, were not in question. Before us
also it has not been contended that he had made any personal gain.
22. The High Court in its judgment categorically opined that he merely had committed
some inadvertent mistakes. He did not have any intention to commit any misconduct. The
purported misconduct on his
@page-SC2150
part was neither willful nor there existed any fraudulent intention on his part to falsify the
account. The High Court opined that the prosecution had failed to bring home the guilt of
the accused beyond all reasonable doubts for the offences punishable under the
provisions under the Indian Penal Code.
The judgment of the High Court states a definite view. It opined that the finding of the
learned Trial Judge holding him guilty under Section 477A of the Indian Penal Code and
the provisions of the Prevention of Corruption Act was perverse. The circumstances in
favour of the accused, the High Court inferred, had wrongly been attributed against him
by the Trial Judge.
23. At learned Single Judge of the High Court in his judgment dated 7-02-2005 only upon
taking into consideration the observations made by the High Court in the said criminal
appeal but also the other circumstances, brought on record, directed fresh consideration
and disposal of the matter in accordance with the law upon giving an opportunity of
hearing to the respondent. The Division Bench of the High Court, in the first round of
litigation, noticed that the entire record had been perused by the learned Single Judge. It
was found that the original authority had imposed a punishment of only stoppage of one
increment with cumulative effect which was modified by the appellate authority into one
of withholding of increment without cumulative effect and held that failure of the
disciplinary and appellate authorities to take into consideration modified punishment has
caused serious prejudice to the respondent.
24. It was furthermore noticed that in purported compliance of the directions issued by
the learned Single Judge, the penalty of dismissal from service was re-imposed on the
respondent.
25. The Division Bench, however, disagreed with the conclusion of imposition of
stoppage of one increment. Even then it observed that in the facts and circumstances of
this case the issue relating to dismissal of respondent needs reconsideration. It was
directed :
"While doing so, the concerned authority shall keep in view the following factors :
(i) Both the disciplinary authority and this Court in Criminal Appeal No. 12 of 1996
found the respondent not guilty of charges of misappropriation, deriving the personal
benefit for himself and causing loss to the bank.
(ii) The effect of the Judgment of this Court in Criminal Appeal No. 12 of 1996 in the
light of the decision of the Supreme Court in M. Paul Anthony's case (supra) and G.M.
Tank's case (supra). 1999 AIR SCW 1098
2006 AIR SCW 2709
(iii) Modified punishment of withholding of increment without cumulative effect

imposed on the respondent is a minor penalty unlike the punishment of withholding of
increment with cumulative effect, which was held to be a major penalty by the Supreme
Court in Kulwant Singh Gill's case (supra).
(iv) While considering the proportionality of the punishment, distinction lies between the
procedural irregularities constituting misconduct from the acts of misappropriation of
finances, causing loss to the institution, etc."
26. We do not see any reason keeping in view the peculiar facts and circumstances of the
case to disagree with the said findings, although we would like to reiterate the principles
of law to which we have referred to hereinbefore.
27
. We may, however, notice that Mr. Sorabjee has strongly relied upon a decision of this
Court in Commissioner of Police, New Delhi v. Narender Singh [(2006) 4 SCC 265] to
contend that therein initiation of a departmental proceeding was upheld inter alia on the
ground that although a confession made by an accused in a criminal proceeding would
not be admissible having regard to Sections 25 and 27 of the Evidence Act, the same
would not be a bar to proceed against him departmentally. 2006 AIR SCW 1958
In that case it was held :

"13. It is now well settled by reason of a catena of decisions of this Court that if an
employee has been acquitted of a criminal charge, the same by itself would not be a
ground not to initiate a departmental proceeding against him or to drop the same in the
event an order of acquittal is passed."
This court therein considered the nature of the confessions made by the delinquent officer
and the implication thereof having regard to Sections 25 and 26 of the Evidence Act to
hold that the Tribunal was not correct in holding that the confessional statement was not
admissible in the departmental proceeding.
@page-SC2151
In G.M. Tank v. State of Gujarat and Others [(2006) 5 SCC 446], noticing a large number
of decisions operating in the field, it was observed : 2006 AIR SCW 2709, Paras 31 and
32
"30. The judgments relied on by the learned counsel appearing for the respondents are
distinguishable on facts and on law. In this case, the departmental proceedings and the
criminal case are based on identical and similar set of facts and the charge in a
departmental case against the appellant and the charge before the criminal court are one
and the same. It is true that the nature of charge in the departmental proceedings and in
the criminal case is grave. The nature of the case launched against the appellant on the
basis of evidence and material collected against him during enquiry and investigation and
as reflected in the charge-sheet, factors mentioned are one and the same. In other words,
charges, evidence, witnesses and circumstances are one and the same. In the present case,
criminal and departmental proceedings have already noticed or granted on the same set of
facts, namely, raid conducted at the appellant's residence, recovery of articles therefrom.
The Investigating Officer Mr V.B. Raval and other departmental witnesses were the only
witnesses examined by the enquiry officer who by relying upon their statement came to
the conclusion that the charges were established against the appellant. The same
witnesses were examined in the criminal case and the criminal court on the examination
came to the conclusion that the prosecution has not proved the guilt alleged against the
appellant beyond any reasonable doubt and acquitted the appellant by its judicial
pronouncement with the finding that the charge has not been proved. It is also to be
noticed that the judicial pronouncement was made after a regular trial and on hot contest.
Under these circumstances, it would be unjust and unfair and rather oppressive to allow
the findings recorded in the departmental proceedings to stand.
31. In our opinion, such facts and evidence in the departmental as well as criminal
proceedings were the same without there being any iota of difference, the appellant
should succeed. The distinction which is usually proved between the departmental and
criminal proceedings on the basis of the approach and burden of proof would not be
applicable in the instant case. Though the finding recorded in the domestic enquiry was
found to be valid by the courts below, when there was an honourable acquittal of the
employee during the pendency of the proceedings challenging the dismissal, the same
requires to be taken note of and the decision in Paul Anthony case 1 will apply. We,
therefore, hold that the appeal filed by the appellant deserves to be allowed." 1999
AIR SCW 1098
Each case, therefore, must be determined on its own facts.

28
. However, we may notice that this Court, in State Bank of India and Others v. T.J. Paul
[(1999) 4 SCC 759], noticed :1999 AIR SCW 1687
"7. The above orders were questioned in a writ petition. The learned Single Judge while
allowing the writ petition held that the finding of the enquiry officer on Item 23 was that
no financial loss was proved and if it was a case of not taking adequate "security" from
the loaners and in not obtaining ratification as per Head Office instructions, these charges
were not sufficient-in view of Rules 22(vi)(c) and (d) read with sub-rule (vii) for
imposing a penalty of dismissal or removal. Only a minor penalty could be imposed. As
per the enquiry officer's report there was no actual loss caused by reason of any act of the
employee wilfully done. There was no evidence of financial loss adduced before the
enquiry officer. The finding that the respondent jeopardised the Bank's interest was based
on no evidence. Penalty must have been only for minor misconduct. The SBI Rules were
not applicable since the misconduct alleged related to the period of service in Bank of
Cochin. The learned Judge observed that "punishment of removal" could not have been
imposed as it was not one of the enumerated punishments under Bank of Cochin Rules.
The writ petition was allowed, the impugned order was quashed. It was, however,
observed that the Bank could impose punishment for minor misconduct as per rules of
Bank of Cochin."
T.J. Paul (supra) was a case involving violation of the instructions of the Head Office as
also gross negligence on the part of the delinquent officer. While holding that the same
would constitute major misconduct referring to the case of Union of India v. G.
Ganayutham [(1997) 7 SCC 463], it was opined : 1997 AIR SCW 3464
"19........In our view, this decision is not

@page-SC2152
applicable to the facts of the case. Here the Court is not interfering with the punishment
awarded by the employer on the ground that in the opinion of the Court the punishment
awarded is disproportionate to the gravity of the misconduct. Here, the gradation of the
punishments has been fixed by the rules themselves, namely, the rules of Bank of Cochin
and the Court is merely insisting that the authority is confined to the limits of its
discretion as restricted by the rules. Inasmuch as the rules of Bank of Cochin have
enumerated and listed out the punishments for "major misconduct", we are of the view
that the punishment of "removal" could not have been imposed by the appellate authority
and all that was permissible for the Bank was to confine itself to one or the other
punishment for major misconduct enumerated in para 22(v) of the rules, other than
dismissal without notice. This conclusion of ours also requires the setting aside of the
punishment of "removal" that was awarded by the appellate authority. Now the other
punishments enumerated under para 22(v) are "warning or censure or adverse remark
being entered, or fine, or stoppage of increments/reduction of basic pay or to condone the
misconduct and merely discharge from service". The setting aside of the removal by the
High Court and the relief of consequential benefits is thus sustained. The matter has,
therefore, to go back to the appellate authority for considering imposition of one or the
other punishment in para 22(v) other than dismissal without notice."
29. As the respondent has merely been found to be guilty of commission of procedural
irregularity, we are of the opinion that it is not a fit case where we should exercise our
discretionary jurisdiction under Article 136 of the Constitution of India, particularly in
view of the fact that the respondent has now reached his age of superannuation, and the
appropriate authority of the appellant would be entitled to impose any suitable penalty
upon him.
30. The appeals are dismissed. No costs.
Appeal dismissed.
AIR 2008 SUPREME COURT 2152 "H. S. M. I. T. Corpn. V. G. S. Uppal"
(From : 2002 Lab IC 629 (Pand H))
Coram : 2 R. V. RAVEENDRAN AND LOKESHWAR SINGH PANTA, JJ.
Civil Appeal No. 9244 of 2003 with C. A. Nos. 9239 and 9248 of 2003, D/- 16 -4 -2008.
Haryana State Minor Irrigation Tubewells Corporation and Ors. v. G.S. Uppal and Ors.
WITH
Haryana State Minor Irrigation Tubewells Corporation and Ors. v. Chakrawarti Garg
WITH
Haryana State Minor Irrigation Tubewells Corporation and Ors. v. A.S. Dhir.
Constitution of India, Art.16 - EQUALITY IN PUBLIC EMPLOYMENT - PAY SCALE
- Pay revision - Revised pay scales given to Engineers of State Govt. - As also to
Engineers of Govt. Corporation - Anomaly in pay scales of Govt. Engineers rectified
subsequently - Said rectification would also be applicable to Corporation Engineers to
maintain parity - Moreso when said benefit was extended to all other employees of
Corporation - Fact that Corporation running under losses - Immaterial.
When the pay revision took place, the revised pay scales that were given to the Engineers
of the State Govt. were also given to the Engineers of the Govt. Corporation with effect
from 1-1-1986 thereby maintaining the parity. What was not extended to the Corporation
employees, which is the subject matter of the grievance, is the further revision by way of
removal of anomaly in pay scales' given to AEE/AE/SDO/SDE of the State Govt. with
effect from 1-5-1989. When, after a pay revision, an anomaly is found in the pay scale
given to a class of Govt. servants and such anomaly is rectified, it is not a new pay
revision but a correction of the original pay revision, or an amendment to the pay scale
that has already been granted. Therefore, where the pay revision extended to the Govt.
servants has already been extended to the employees of the Corporation also, it follows
that any correction of anomaly in the revised pay scale given to the Govt. servants should
also be made in the case of those who were earlier given parity by extending the pay
scale which is the subject matter of the correction. It should be borne in mind that the
question whether Corporation Engineers were on par with PWD Engineers and should be
given
@page-SC2153
parity in pay scales was already decided when the pay scale revision granted to Govt.
(PWD) Engineers was extended to the Corporation Engineers also with effect from 1-1-
1986. That question did not again arise when the anomaly in the pay revision was
rectified with reference to the Govt. Engineers. When the anomaly in the pay scale of
Govt. Engineers was rectified, the rectification should apply to Corporation Engineers
also to maintain the parity. Moreso when said benefit was extended to all other
employees of the Corporation. (Paras 22, 23)
The plea of the appellants that the Corporation is running under losses and it cannot meet
the financial burden on account of revision of scales of pay would be liable to be rejected.
The scales of pay of corporation employees were initially revised w. e. f. April 1, 1979
and thereafter on January 1, 1986. On both these occasions, the pay scales of the
employees of the Corporation were treated and equated at par with those in Govt. It is
thus an established fact that both were similarly situated. Thereafter, nothing happened
which may justify the differential treatment. Thus, the Corporation cannot put forth
financial loss as a ground only with regard to a limited category of employees. It cannot
be said that the Corporation is financially sound insofar granting of revised pay scales to
other employees, but finds financial constraints only when it comes to dealing with the
respondents.
AIR 1990 SC 937 and 2000 AIR SCW 1475, Foll. (Para 24)
2006 AIR SCW 2197 : 2006 Lab IC 2107 : 2006 (3) AIR Kar R 539 16
2004 AIR SCW 321 : AIR 2004 SC 1402 : 2004 Lab IC 527 (Ref.) 12, 14
2002 AIR SCW 1881 : AIR 2002 SC 1955 : 2002 Lab IC 1682 : 2002 AIR - Kant HCR
1381 (Ref.) 12, 13
2002 AIR SCW 2896 : AIR 2002 SC 2589 : 2002 Lab IC 2630 (Ref.) 12, 15
AIR 1990 SC 937 (Foll.) 24
Neeraj Kumar Jain, AAG, M.N. Krishnamani, Sr. Advocate, Vikrant Hoods, Sandeep
Chaturvedi (for Ugra Shankar Prasad), Raj Kumar Gupta, (for A.N. Bardiyar), Rishi
Malhotra (for Prem Malhotra) for appearing parties.
Judgement
LOKESHWAR SINGH PANTA, J. :-These appeals, by special leave, filed by Haryana

State Minor Irrigation Tubewells Corporation and Others are directed against the
common judgment dated August 22, 2001 passed by the Division Bench of the High
Court of Punjab and Haryana in Letters Patent Appeal No. 725/1993 and Civil Writ
Petition No. 5946/1994 and Civil Writ Petition No. 834/1996. Reported in 2002 Lab
IC 629
2. By the impugned judgment, the Division Bench of the High Court dismissed the
Letters Patent Appeal filed by the appellants against the judgment and order dated May,
18, 1993 of the learned Single Judge passed in C.W.P. No. 14200/1993 and allowed
C.W.P. No. 5946/1994 filed by Chakrawarti Garg and C.W.P. No. 834/1996 of A.S. Dhir,
respondents herein.
3. These appeals are similar in nature and they involve identical questions of law and
facts and, therefore, they are being decided by this common judgment.
4. The facts giving rise to the filing of these appeals are that the respondents in Civil
Appeal Nos. 9244/2003 and 9248/2003, at the time of filing of the writ petitions, were
working on the post of Sub-Divisional Officer (SDO), Sub-Divisional Engineer (SDE)
and Assistant Engineer (AE) with the Haryana State Minor Irrigation Tubewells
Corporation Ltd. (for short 'the Corporation') appellant No. 1, which is a Government
company, within the meaning of that expression under the Companies Act, 1956. The
respondent in C.A. No. 9239/2003 was working as Law Officer with the Corporation.
State of Haryana exercises deep and pervasive control over the Corporation. Secretary,
Irrigation Department; Secretary, Agricultural Department; Secretary, Finance
Department, to the Government of Haryana; Chairman, Haryana State Electricity Board
and Chief Engineer (Canals), Irrigation Works, Haryana, were the exclusive shareholders
in the Corporation at the time of its formation in the year 1970. The Corporation was
carved out of the Irrigation Wing of the Public Works Department and since its inception
in the year 1970, a number of officers have been appointed to different posts by way of
deputation. There were about 27 SDOs on deputation from the Irrigation Department
working in Corporation whose nature of duties and responsibilities were
@page-SC2154
similar and identical to the nature and duties of the SDOs working in the equivalent post
of Corporation. Their duties were inter-changeable and as such it was the case of the
respondents before the High Court that there was no difference whatsoever between the
duties and responsibilities expected to be shouldered by a deputationist and by an
employee of the Corporation. The respondents pleaded before the High Court that there
was no qualitative difference between the duties and responsibilities of persons employed
on the posts of SDOs, SDEs, AEs in various departments of Haryana Government, such
as Public Works Department (Buildings and Roads), Public Health Departments, various
Corporations, Haryana State Electricity Board, Haryana Urban Development Authority
and several other Boards. Rule 5.1 of Part V of the Service Bye-Laws of the Corporation
reads as under :-
"1) Each post in the Corporation will carry a time scale of pay, the present pay scale
being indicated in Appendix II.
2) The pay scale is subject to revision by the Board, which will, however, generally
follow the pattern adopted by the Government of Haryana from time to time."
5. The Corporation ever since its inception in the year 1970 has been following the pay
scales of the employees of the Haryana Government as revised from time to time in
respect of all categories of its employees. As noticed earlier, initially, when the
Corporation was formed, almost the entire Engineering staff right from the rank of Chief
Engineer to the rank of AEs/SDOs/SDEs was taken on deputation from the Irrigation
Department of the State Government till the Corporation recruited its own cadre of AEs.
Qualifications and experience for recruitment and promotion to the ranks of AEs, SDOs,
Executive Engineers, Superintending Engineers and Chief Engineers are the same as in
the Irrigation Department. All those employees who came on deputation on whatever
post, were granted pay scales as revised by the Haryana Government from time to time
for the Engineers in the Government Departments, like PWD (B and R), Public Health
and Irrigation Department. Keeping in view these facts, pay scales of employees of the
Corporation including those of Engineers were revised with effect from 01-04-1979 and
01-01-1986 on the pattern of revision of pay scales approved by the Haryana Government
for its employees. The revision of pay scales with effect from 01-01-1986 was also
approved by the Pay Revision Committee (PRC) constituted by the Haryana Government
for revision of pay scales of the employees of various public
Undertakings/Boards/Corporations in its meeting held on 21-09-1988. Revision of pay
scales were made applicable to the Engineers in the Corporation w.e.f. 01-01-1986, but
thereafter the Haryana Government, while removing certain anomalies in the pay scale of
the Superintending Engineers, further revised the pay scales of SEs of PWD (B and R),
Public Health and Irrigation Department from Rs.3700-5000/- to Rs. 4100-5300/- vide
Finance Department letter No.6/38/3PR(FD) -27 dated 16-05-1989. By another letter of
the said Department No. 6/38/PR dated 02-06-1989, salaries of other Engineers, such as
AEEs/AEs/SDOs/SDEs (Class-I and Class-II) were also revised with effect from 01-05-
1989 by way of removal of anomalies. The Board of Directors of the Corporation in its
94th meeting held on 18-08-1989 decided that in view of the parity in pay scales that had
been maintained in the past between the Corporation and their counter parts in the
Haryana Government Departments, which was approved by the Finance Department,
may be recommended to the Public Enterprises and Investment Cell of the Finance
Department, Haryana, for their concurrence. The names of the posts, their existing and
revised pay scales are tabulated as below :-
Name of the Post Existing Scales of payRevised Scales of Pay

Superintending Engineer Rs. 3700-5000 Rs. 4100-5300
Engineers
AEE/AE/SDO/SDE
(Class I and II) Rs.2200-4000
Rs.2000-3500
service) Rs.2200-4000
Rs.3000-4500
(After 5 years of regular
Rs.4100-5300
(After 12 years of regular service)
6. The Haryana Government once again modified pay scales of the Engineers vide letter
dated 16-05-1990 with effect from 01-05-1989 as under :-
Name of the Post Existing Scales of payRevised Scales of Pay

Engineers
AEE/AE/SDO/SDE
(Class I and II) Rs.2200-4000
Rs.2000-3500
(After 5 years of regular service Rs.4100-5300 (After 12 years of regular service)
Rs.2200-4000
Rs.3000-4500
(After 5 years of regular satisfactory service)
Selection Grade Rs.4100-5300 (After 12 years of regular satisfactory service) limited to
20% of the cadre posts.
7. The Board of Directors of the Corporation considered and approved the adoption of the
above modified scales of pay w.e.f. 01-05-1989 in respect of the Engineers of the
Corporation in 97th meeting held on 25-06-1990, subject to the concurrence of the
Finance Department. It was further resolved that any further amendment/modification
made by the Haryana Government in the pay scales of the Engineers may also be made
applicable in respect of the Corporation employees, subject to the concurrence of the
Finance Department. The proposal of the Board of Directors of the Corporation for
revision of pay scales of the Corporation Engineers was sent to the Finance Department
and in the said proposal, it was brought to the notice of the Standing Committee that the
revised pay scales had already been granted to the Engineers of the
@page-SC2155
Haryana Urban Development Authority and that of the Haryana State Electricity Board.
The proposal was placed before the Standing Committee in its meeting that was held on
28-05-1992, which approved the pay scales in a selective manner. The revision in the pay
scales of the Superintending Engineers, Accounts Officers, Circle Head Draftsmen,
Divisional Head Draftsmen, etc. were approved, whereas the revision of pay scales of the
AEs/SDOs/SDEs was postponed and it was decided that the matter would be examined
separately by the Finance Department. The claim of the respondents with regard to the
revision of pay scales, however, was not taken up by the Standing Committee. The
respondents submitted repeated representations but they could not get any relief and the
respondents were left with no option but to file the writ petitions before the High Court.
8. The Corporation contested the claim of the respondents before the High Court by filing
written statement wherein it has been pleaded that the respondents are seeking revised
pay scales on the pattern of Engineers of three wings of PWD of the State Government.
The proposal of the Corporation for revision of pay scales of engineering staff was placed
for consideration of the Standing Committee in its meeting held on 15-11-1991. The
decision taken in the aforesaid meeting reads thus :
"It was decided to constitute a Sub-Committee comprising of Member Secretary, Haryana
Bureau of Public Enterprises; Managing Director, Haryana State Minor Irrigation
Tubewell Corporation and Joint Secretary Finance (Pay Revision) to review the entire
staffing pattern along with pay scale of CORPORATION. Based on the recommendations
of the Sub-Committee, the Corporation could submit a fresh proposal for consideration of
the Standing Committee, if need be."
The meetings aforesaid of the Sub-Committee were held on 16-01-1992 and 6-02-1992.
Minutes of these meetings containing recommendations of the Sub-Committee were
placed for consideration of the
@page-SC2156
Standing Committee in its meeting held on 28-05-1992 wherein it was decided as under :-
"The revision of pay scales of posts of AEE/AE/SDO/SDEs was postponed and it was
decided that the matter will be examined separately by the Finance Department."
It has further been stated that as the matter was under active consideration and had not
been finally decided by the Finance Department, no cause of action arose to the
respondents and, therefore, the writ petition being premature was liable to be dismissed
on that sole ground. The main defence of the Corporation in its written statement before
the High Court was that there has been a revision of pay scales of Engineers of three
wings of Public Works Department only of the State Government who have to carry out
more arduous duties under different conditions and constraints because of the
development activities undertaken by the State under its phased programme and time-
bound schedule, whereas the Engineers employed by the Corporation have been
discharging normal routine duties. It was contended that the Corporation is running under
loss and because of its financial position, the Corporation is not in a position to equate the
pay scales of its Engineers, Law Officers and other employees equivalent to the
Engineers of the three wings of PWD and other employees working on the equivalent
posts of the State Government.
9. The learned Single Judge, allowed the Writ Petition No. 14200/1993 which was the
subject-matter of LPA No. 7525/1993 before the Division Bench of the Punjab and
Haryana High Court and held as under :
"In view of the above, it is held that the action of the respondents in not granting the
revised scale of pay to the petitioners with effect from May 1, 1989 suffers from the vice
of discrimination and is violative of Articles 14 and 16 of the Constitution of India. The
next contention raised by the learned counsel for the petitioners related to the jurisdiction
of the Government to interfere in the affairs of the Corporation. The contention is not
wholly without merit. However, in view of my decision on the first question, it does not
appear to be necessary to examine this matter in detail.
Accordingly, this writ petition is allowed. It is held that the petitioners will be entitled to
the revised scales of pay with effect from May 1, 1989 as has been granted to the persons
working in the Corporation by way of deputation or in the Public Works Department of
the Government. The needful shall be done within 4 months from the date of receipt of a
copy of this order. They will be entitled to all consequential benefits. In case, the needful
is not done within the aforesaid time, the petitioners shall be entitled to the payment of
arrears, etc. along with interest @ 12% per annum from the date of accrual to the date of
actual payment. However, in the circumstances of the case, there will be no order as to
costs."
10. Being aggrieved, the Corporation carried the matter in intra-court appeal before the
Division Bench. During the hearing of Letters Patent Appeal, a copy of the final decision
taken by the Government had been handed over to the Bench vide which the Finance
Committee of the Government decided that pay scales of the Engineers along with the
doctors of Health Department and Deputy Superintendents of Police were further revised.
It has also been clarified that the revised pay scales, so far as Engineers were concerned,
were applicable to the Engineers of PWD (three wings) only. Shri Chakrawarti Garg, Law
Officer working with the Corporation, filed Civil Writ Petition No. 5946/1994 and Shri
A.S. Dhir, SDO of the Corporation filed Civil Writ Petition No. 834/ 1996 before the
Division Bench of the High Court claiming revision of pay scales at par with the other
employees discharging same and similar duties and responsibilities at equivalent posts
with the State Government. Boards and Corporations. The Division Bench by impugned
order dated August 22, 2001 dismissed the Letters Patent Appeal of the Corporation and
allowed the Civil Writ Petitions filed by Shri Chakrawarti Garg and Shri A.S. Dhir
respondents herein. Hence, the Corporation and others have filed these appeals
questioning the correctness and validity of the common judgment of the Division Bench
of the High Court.
11. We have heard learned counsel for the parties. Mr. Neeraj Kumar Jain, learned
Additional Advocate General appearing for the appellants, vehemently contended that the
pay scales of the respondents could not be compared and equated with the Engineers and
other employees of the three wings of the PWD and other employees of the State
Government. He submitted that there is apparent difference between the duties,
responsibilities
@page-SC2157
and reliability of the Engineers working in the three wings of Public Works Department
as they have to work under difficult conditions and constraints because of the
developmental activities as compared to those Engineers working in the Corporation. As
such, the findings of the High Court granting different pay scales to the Engineers and
other employees of the Corporation in violation of Articles 14 and 16 of the Constitution
of India cannot be justified and sustained. It was also urged that mere fact that on two
earlier occasions, pay hike to the Engineers of the Government Departments attracted an
equal pay hike for the Engineers employed with the Corporation is no guide that may
conclusively show that nature and duties of the two sets of employees were the same. The
weak financial position of the Corporation is also being pressed into service during the
course of arguments for denying the relief that has been granted to the respondents by the
High Court.
12
. The learned Additional Advocate General, in support of his submissions, placed reliance
on the judgments of this Court in State Bank of India and Ann v. M.R. Ganesh Babu and
Ors. [2002] 4 SCC 556; State of Haryana v. Haryana Civil Secretariat Personal Staff
Association [2002] 6 SCC 72 and Union of India v. S.B. Vohra [2004] 2 SCC 150.2002
AIR SCW 1881
2002 AIR SCW 2896
2004 AIR SCW 321
13. We have gone through these decisions of this Court. In State Bank of India's case
(supra), this Court held that equal pay must depend upon the nature of work done. It
cannot be judged by the mere volume of work; there may be qualitative difference as
regards reliability and responsibility. Functions may be same but the responsibilities
make a difference. Often the difference is a matter of degree and there is an element of
value judgment by those who are charged with the administration in fixing the scales of
pay and other conditions of service. So long as such value judgment is made bona fide,
reasonably on an intelligible criterion which has a rational nexus with the object of
differentiation, such differentiation will not amount to discrimination. The judgment of
administrative authorities concerning the responsibilities which attach to the post, and the
degree of reliability expected of an incumbent, would be a value judgment of the
authorities concerned which, if arrived at bona fide, reasonably and rationally, is not open
to interference by the court.
14
. In S.B. Vohra's case (supra), this Court dealing with the fixation of pay scales of officers
of the High Court of Delhi (Assistant Registrars) held that the fixation of pay scales is
within the exclusive domain of Chief Justice, subject to approval of President/Governor
of the State and the matter should either be examined by an Expert Body or in its absence
by the Chief Justice and the Central or State Government should attend to the suggestions
of the Chief Justice with reasonable promptitude so as to satisfy the test of Article 14 of
the Constitution of India. Further, it was observed that financial implications vis-a-vis
effect of grant of a particular scale of pay may not always be a sufficient reason and
differences should be mutually discussed and tried to be solved. 2004 AIR SCW 321
15
. In State of Haryana's case (supra), this Court held that the High Court was in error in
allowing the parity in pay scale to State Civil Secretariat PAs with Central Secretariat PAs
merely because the designation was same, without comparing the nature of their duties
and responsibilities and qualifications for recruitment and without considering the
relevant rules, regulations and executive instructions issued by the employer and
governing the cadre concerned. 2002 AIR SCW 2896
16
. There is no dispute nor can there be any to the principle as settled in the above-cited
decisions of this Court that fixation of pay and determination of parity in duties is the
function of the Executive and the scope of judicial review of administrative decision in
this regard is very limited. However, it is also equally well-settled that the courts should
interfere with the administrative decisions pertaining to pay fixation and pay parity when
they find such a decision to be unreasonable, unjust and prejudicial to a section of
employees and taken in ignorance of material and relevant factors. [see K.T. Veerappa
and Ors. v. State of Karnataka and Ors. (2006) 9 SCC 406]. 2006 AIR SCW 2197
17. Mr. M.N. Krishnamani, learned senior counsel assisted by Shri Raj Kumar Gupta and
Shri A.N.Bardiyar appearing for respondents in C.A. Nos. 9244/03 and 9248/03; Mr.
Rishi Malhotra, Advocate appearing for respondents in C.A. 9239/2003,
@page-SC2158
in support of the judgment of the Division Bench, contended that no exceptions can be
taken to the well-reasoned judgment recorded by the Division Bench of the High Court.
They submitted that the Division Bench has analysed in great detail the factual situation
and legal proposition covering the field of controversy, therefore, there is apparently no
infirmity or perversity in the judgment impugned in these appeals inviting interference by
this Court.
18. In order to appreciate the rival contentions of the learned counsel for the parties, we
have scrutinized the judgment of the Division Bench of the High Court in the backdrop of
the factual situation of the case as well as in the light of the principle enunciated in the
above-cited decisions.
19. It is well-settled that the State can make reasonable classification if it has a nexus
with the object sought to be achieved. It is admitted position in the present case that posts
of SDOs/SDEs/AEs can be filled up by the Corporation by any one of the three known
methods, namely, direct recruitment, on promotion or by transfer/deputation. Once a
person is appointed to a post in a particular cadre, the source of his recruitment or the
method of his appointment becomes irrelevant. The Corporation has framed its Service
Bye-Laws and by virtue of Rule 5.1 of Part-V of the Service Bye-Laws, each post in the
Corporation will carry a time scale of pay; the present pay scale being indicated in
Appendix-II and further that the pay scale is subject to revision by the Board, which will,
however, generally follow the pattern adopted by the Government of Haryana from time
to time. The employees of the Corporation, since its inception in 1970, had been getting
the same pay scales as that of the employees of the Haryana Government and the Board
of Directors having already equated the pay scales of the Engineers of the Corporation
commensurate to the pay scales of the Government employees, but the State Government
has not concurred with the decision of the Board of Directors. By virtue of Clause 81(v)
of the Memorandum of Association of the Corporation, the Directors of the Corporation
in their discretion have powers to appoint, remove or suspend such Managers,
Secretaries, Officers, Clerks, Agents and Servants of permanent, temporary or special
services, as they may from time to time think fit, and to determine their powers and duties
and fix their salaries or emoluments and to require security of such amount as they think
fit in such instances. The power to fix the salaries or emoluments of the employees of the
Corporation, thus, specifically rests with the Directors of the Corporation and by virtue of
Rule 5.1 of Part-V of the Service Bye-Laws, as mentioned in the earlier part of the
judgment, the Corporation had favourably considered the claim of the respondents by
recommending the same scales for them, as were being given to their counterparts in the
service of the Government Departments. The proposal of the Board of Directors of the
Corporation for revision of pay scales to its employees came up before the Standing
Committee in its meeting held on 28-05-1992 and the Standing Committee approved the
pay scales in a selective manner. The revision in pay scales of the Superintending
Engineers, Accounts Officers, Circle Head Draftsmen, Divisional Head Draftsmen, etc.
were approved, whereas the revision of pay scales of the respondents, who are AEs/
SDOs/SDEs, was postponed and it was decided that the matter would be examined
separately by the Finance Department.
20. The State of Haryana in its written statement filed before the High Court admitted
that although the technical qualifications of incumbents on the posts of AEs/ SDOs/SDEs
in various Government Departments, Boards and Corporations are identical, yet the
nature of duties and responsibilities, quantum of workload and level of technical
expertise involved do vary from organization to organization depending upon the nature
of activities undertaken by the respective organizations. It is further contended that the
salary and allowances of the deputationists of the Corporation are governed by the terms
and conditions of their deputation as decided by the Government from time to time.
Therefore, the respondents cannot be treated and equated at par with the similar
categories of employees of the State Government.
21. The learned Single Judge of the High Court as also the learned Judges of the Division
Bench have considered the controversy in detail in their judgments holding the
respondents entitled for the revision of pay scales at par with their counter-parts working
in the State of Haryana.
22. It is not in dispute that a deputationist holds the post in a particular cadre office for
the duration he remains on
@page-SC2159
deputation and is a part of that cadre. No material has been placed on record by the
appellants to show that the deputationists are appointed against only certain particular
posts or that they cannot be posted or transferred to the posts held by the respondents. In
fact, it is an admitted position that the posts are mutually inter-changeable. In this
situation, it is reasonable to infer that a deputationist performs the same duties as those
performed by other persons working in the cadre. It is also an admitted position that the
qualifications laid down for recruitment in the Corporation are identical to those
prescribed in the Departments of the Government. It is further clear that the respondents
have continued to work in the pay scale of Rs.2000-3500 w.e.f. 01-01-1986. As against
this, their counterparts in the Government and also the persons, who are posted in the
Corporation by way of deputation, would get the scale of Rs. 3000-4500 on completion
of five years of service and are placed in the scale of Rs. 4100-5300 (to the extent of 20%
of the posts) on completion of 20 years of service. The respondents were obviously
placed at a disadvantageous position. The decision of the Government in rejecting the
proposal of the Board of Directors suffers from the vice of invidious discrimination and
cannot be sustained because the very same decision of the Board with regard to all other
employees has since been accepted and approved by the State Government. On the
scrutiny of the material on record, it is clear that the appellants did not produce any
evidence on record to establish that the working conditions, responsibilities and nature of
duties, etc. of the respondents are different to their counter-parts working in the same
categories in the State Government, Boards and other Corporations, etc. and also the
persons who are working with the Corporation on deputation.
23. A careful examination shows that the issue was not really about grant of pay scales to
Corporation Engineers on par with PWD Engineers. When the pay revision took place,
the revised pay scales that were given to the Engineers of the State Government were also
given to the Engineers of the Corporation with effect from 1-1-1986 thereby maintaining
the parity. What was not extended to the Corporation employees, which is the subject-
matter of the grievance, is the further revision by way of removal of anomaly in pay
scales' given to AEE/AE/SDO/SDE of the State Government with effect from 1-5-1989
vide Circular dated 2-6-1989 of the Finance Commissioner. The real question would be
whether what is given by way of anomaly removal in the case of Engineers of State
Government, should automatically be extended to the corresponding categories of
Engineers of the Corporation. When, after a pay revision, an anomaly is found in the pay
scale given to a class of Government servants and such anomaly is rectified, it is not a
new pay revision but a correction of the original pay revision, or an amendment to the
pay scale that has already been granted. Therefore, where the pay revision extended to the
Government servants has already been extended to the employees of the Corporation
also, it follows that any correction of anomaly in the revised pay scale given to the
Government servants should also be made in the case of those who were earlier given
parity by extending the pay scale which is the subject-matter of the correction. It should
be borne in mind that the question whether Corporation Engineers were on par with PWD
Engineers and should be given parity in pay scales was already decided when the pay
scale revision granted to Government (PWD) Engineers was extended to the Corporation
Engineers also with effect from 1-1-1986. That question did not again arise when the
anomaly in the pay revision was rectified with reference to the Government Engineers.
When the anomaly in the pay scale of Government Engineers was rectified, the
rectification should apply to Corporation Engineers also to maintain the parity.
24
. The plea of the appellants that the Corporation is running under losses and it cannot
meet the financial burden on account of revision of scales of pay has been rejected by the
High Court and, in our view, rightly so. Whatever may be the factual position, there
appears to be no basis for the action of the appellants in denying the claim of revision of
pay scales to the respondents. If the Government feels that the Corporation is running
into losses, measures of economy, avoidance of frequent writing off of dues, reduction of
posts or repatriating deputationists may provide the possible solution to the problem. Be
that as it may, such a contention may not be available to the appellants in the light of the
principle enunciated by this Court in M.M.R. Khan v. Union AIR 1990 SC 937
2000 AIR SCW 1475
@page-SC2160
of India [1990 Supp SCC 191] and Indian Overseas Bank v. I.O.B. Staff Canteen
Workers' Union [(2000) 4 SCC 245]. However, so long as the posts do exist and are
manned, there appears to be no justification for granting the respondents a scale of pay
lower than that sanctioned for those employees who are brought on deputation. In fact,
the sequence of events, discussed above, clearly shows that the employees of the
Corporation have been treated at par with those in Government at the time of revision of
scales of pay on every occasion. It is an admitted position that the scales of pay were
initially revised w.e.f. April 1, 1979 and thereafter on January 1, 1986. On both these
occasions, the pay scales of the employees of the Corporation were treated and equated at
par withthose in Government. It is thus an established fact that both were similarly
situated. Thereafter, nothing appears to have happened which may justify the differential
treatment. Thus, the Corporation cannot put forth financial loss as a ground only with
regard to a limited category of employees. It cannot be said that the Corporation is
financially sound insofar granting of revised pay scales to other employees, but finds
financial constraints only when it comesto dealing with the respondents, who are
similarly placed in the same category. Having regard to the well reasoned judgment of the
Division Bench upholding the judgment and order of the learned Single Judge, we are of
the view that the impugned judgment warrants no interference inasmuch as no illegality,
infirmity or error of jurisdiction could be shown before us.
25. In the result, for the reasons stated above, we find no merit in these appeals. The
appeals are dismissed accordingly. However, the parties are left to bear their own costs.
Appeals dismissed.
AIR 2008 SUPREME COURT 2160 "Kisan Sahkari Chini Mills Ltd. v. Vardan Linkers"
Coram : 2 R. V. RAVEENDRAN AND LOKESHWAR SINGH PANTA, JJ.
Civil Appeal Nos. 5543 with 5544 and 5545 of 2004, D/- 15 -4 -2008.
Kisan Sahkari Chini Mills Ltd. and Ors. v. Vardan Linkers and Ors.
WITH
State of Uttaranchal v. Vardan Linkers and Ors.
AND
Doiwala Sugar Company Ltd. and Ors. v. Vardan Linkers and Ors.
(A) Constitution of India, Art.226 - WRITS - CONTRACT - JUDICIAL REVIEW -
Contractual matters - Scope of interference - Limited to judicial review of administrative
action.
When there is a contractual dispute with a public law element, and a party chooses the
public law remedy by way of a writ petition instead of a private law remedy of a suit, he
will not get a full fledged adjudication of his contractual rights, but only a judicial review
of the administrative action. The question whether there was a contract and whether there
was a breach may, however, be examined incidentally while considering the
reasonableness of the administrative action. The issue whether there was a concluded
contract and breach thereof becomes secondary. In exercising writ jurisdiction, if the
High Court found that the exercise of power in passing an order of cancellation was not
arbitrary and unreasonable, it should normally desist from giving any finding on disputed
or complicated questions of fact as to whether there was a contract, and relegate the
petitioner to the remedy of a civil suit. (Para 17)
(B) Contract Act (9 of 1872), S.10 - Constitution of India, Art.14, Art.226 - CONTRACT
- EQUALITY - WRITS - TENDER - Concluded contract - Existence - Tenders invited
for sale of molasses - Tender condition restricting participation to only bona fide
consumers - Further stipulation to deposit earnest money to each sugar mill from which
he desires to purchase molasses - Respondent not satisfying any on these conditions - His
offer thus not valid - Molasses sale committee holding negotiations and referring
respondent's offer to Chairman - No meeting of sales committee held thereafter - Neither
putting up respondent's offer before Chairman nor his acceptance would constitute
binding contract - Moreover Molasses Sales Committee by itself was not seller, seller
were sugar mills themselves - In absence of contract order issued to respondent to lift
molasses was illegal - Subsequent cancellation of order was justified.
@page-SC2161
W. P. No. 318 (M/B) of 2004, D/-28-07-2004 (Utr), Reversed. (Paras 21, 22, 23, 26,
29, 31, 32)
2001 AIR SCW 3701 : AIR 2001 SC 3609 (Rel. on) 15.3
1995 AIR SCW 2584 (Ref.) 15.1
AIR 1990 SC 1031 (Rel. on) 15.2
AIR 1981 SC 1368 (Ref.) 15.1
A.S. Rawat, AAG, Uttaranchal, U.K. Uniyal, Sudhanshu Dhulia, Sr. Advocates, Sobhit
Saharia, Dinesh Kumar Garg, J.K. Bhatia, B.N. Jha, R.C. Kaushik, R.D. Upadhyay,
Ramesh Saraf, Yashpal Bharti, Vinay Garg, for appearing parties.
Judgement
LOKESHWAR SINGH PANTA, J. :- These appeals by special leave filed by Kisan
Sahkari Chini Mills Limited, Sitarganj, Gadarpur and Nadehi [Civil Appeal No.
5543/2004], State of Uttaranchal [Civil Appeal No. 5544/2004], and Doiwala Sugar
Company Limited and Kichha Sugar Company Limited [Civil Appeal No. 5545/2004] are
directed against the final judgment and order dated 28-7-2004 passed by the Division
Bench of the High Court of Uttaranchal in Writ Petition No. 318/2004 filed by Vardan
Linkers, a proprietary concern of B.B. Singh, first respondent in these appeals. By the
impugned judgment, the High Court allowed the said writ petition and quashed the order
dated 24-4-2004 of the Secretary, Cane Development and Sugar Industries, whereby the
order dated 26-03-2004 of the Assistant Cane Commissioner, Udham Singh Nagar,
granting permission to the first respondent to lift 85,000 quintals of molasses from the
five sugar mills at a price of Rs.127/- per quintal was cancelled.
Factual Background :
2. It is stated that there are six State controlled sugar mills in the State of Uttaranchal,
which produce molasses as a bye-product. Of them, two mills - Doiwala Sugar Company
Limited and Kichha Sugar Mills Limited - are Government Companies. The other four
are in the co-operative sector, namely, Kisan Sahkari Chini Mills Limited at Nadehi,
Gadarpur, Sitarganj and Bhajpur. Sale of molasses produced by these six sugar mills was
controlled through the Molasses Sales Committee constituted by the State Government
vide order dated 25-3-2003, with the following nine Members :
(i) Commissioner, Kumaon Mandal, Nainital - Chairman

(ii) District Magistrate, Udham Singh Nagar - Member
(iii) Six General Managers of the four Co-operative Sugar Mills and two Sugar
Companies - Members
(iv) Assistant Cane Commissioner, Udham Singh Nagar - Secretary
The said order made it clear that molasses of the six sugar mills shall be sold only
through the said Committee. The State Government policy at the relevant time required
molasses produced by these sugar factories to be disposed in the following manner : 70%
to distilleries and chemical factories in the State; 10% to manufacturers of country liquor
within the State; and 20% to bona fide consumers (distilleries and chemical industries).
No allottee who got allotment as a bona fide consumer could transfer the allotment to
anyone else.
3. The Kisan Sahkari Chini Mills Limited, Gadarpur, issued a tender notice (published in
Amar Ujala dated on 23-2-2004) inviting offers from bona fide consumers for purchase
of 'B' grade molasses produced by five sugar mills at Gadarpur, Nadehi, Sitarganj,
Doiwala and Kiccha. Tenderers were required to submit their tenders to the Assistant
Cane Commissioner, Udham Singh Nagar, specifying the name of the Sugar Mills from
which he wanted to purchase molasses and the quantity. The tender had to be
accompanied by an earnest money of Rs.1,00,000/- in respect of each sugar mill from
which the tenderer wanted to buy molasses.
4. In response to the tender notice, first respondent and others submitted their tenders,
which were opened on 1-3-2004 at 3.30 PM by the Assistant Cane Commissioner, Udham
Singh Nagar, in the presence of the General Manager, Gadarpur, the Purchase Clerk of
Sitarganj Mills and Molasses Clerk of Nadehi Mills. The first respondent's tender was for
purchase of 15,000 quintals of molasses from Kisan Sahakari Chini Mills Limited,
Nadehi, at a price of Rs.101/- per quintal. The said offer contained a note to the effect that
"we will lift molasses in favour of distilleries of UP, Punjab and Haryana". The first
respondent did not enclose any earnest money with the tender, but stated that a sum of
Rs.1,00,000/- was already deposited with the Nadehi Sugar Mill. The
@page-SC2162
first respondent did not make any offer for purchasing molasses from the other four mills.
As the prices offered by the tenderers were found to be very low, negotiations were held
by the Assistant Cane Commissioner with the tenderers on the same day. This was
followed by further negotiations on 3-3-2004. At the time of negotiations on 3-3-2004,
only three members of the Molasses Sales Committee were present - District Magistrate,
Udham Singh Nagar, General Manager, Gadarpur Sugar Mills and the Assistant Cane
Commissioner, Udham Singh Nagar. The Chairman of the Molasses Sales Committee and
the General Managers of the five other sugar mills, were not present. The Chief
Accountant of Sitarganj Mills was present. During negotiations, the first respondent
Increased its offer to Rs. 119/- per quintal and again to Rs.127/- per quintal.
5. The three members of the Committee, who were present (along with the Chief
Accountant of Sitarganj Mills), submitted a Note dated 03-03-2004 to the Chairman of
the Molasses Sales Committee, reporting that during negotiations, the first respondent
had offered to purchase the entire stock of molasses of the five sugar mills at Gadarpur,
Nadehi, Sitarganj, Kichha and Doiwala at a price of Rs.127/- per quintal, though he had
submitted the tender only for purchase of molasses of Nadehi sugar mill. It was also
reported that the first respondent had assured payment of earnest money in respect of
each of the four other mills, within seven days if his offer was accepted. The report also
stated that the price of Rs. 127/- per quintal offered by the first respondent was higher
than the offer of the other tenderers - IGL (Rs.117/-) and Rampur Distillery (Rs.126/-).
The Chairman was requested to make his recommendations for accepting the offer of first
respondent. The Chairman of Molasses Sales Committee made an endorsement 'Seen' on
the said note on 3-3-2004. The District Magistrate, Udham Singh Nagar, made a note
thereon to the effect, "Necessary orders may be issued today itself. Firm may deposit
earnest money". The first respondent deposited Rs.4,00,000/- by bank drafts under cover
of letter dated 10-03-2004, towards earnest money for purchase of molasses of the sugar
mills at Gadarpur, Sitarganj, Kichha and Doiwala.
6. The Assistant Cane Commissioner, Udham Singh Nagar, vide letter dated 15-03-2004
permitted the first respondent to lift 5,000 quintals of molasses from Kisan Sahkari Sugar
Mill Ltd., Nadehi, at the rate of Rs. 127/- per quintal within one month.
7. The first respondent gave an undated letter to the District Magistrate, Udham Singh
Nagar requesting allotment of 1,02,000 quintals of molasses of all five sugar mills. On
this letter, the District Magistrate, Udham Singh Nagar made a note on 23-3-2004
instructing the Assistant Cane Commissioner to issue orders giving time till 31-5-2004 to
take delivery. On the basis of the said request of the first respondent, the Assistant Cane
Commissioner prepared an undated official note and sought approval from the District
Magistrate for granting permission to the first respondent for lifting 15,000 quintals of
molasses from each of the four sugar mills at Nadehi, Gadarpur, Sitarganj, and Doiwala
and 25,000 quintals of molasses from Kichha Sugar Mill, in all 85,000 quintals, by 31-
05-2004. The District Magistrate, Udham Singh Nagar, on 25-03-2004 made the
following endorsement thereon : "Approved. The Commissioner has desired to issue
orders".
8. The Assistant Cane Commissioner, by letter dated 26-03-2004, addressed to the first
respondent, informed him that on the approval of the Commissioner, Kumaon Mandal, he
was permitted to lift a total quantity of 85,000 quintals of molasses from the five sugar
mills by 31-05-2004 at a price of Rs.127/- per quintal. The said letter is extracted below :
"M/s Vardan Linkers,
Bijnor (Uttar Pradesh)
Sir,
With reference to the tender dated 1-3-2004 invited on behalf of Co-operative/
Corporation Sugar Mills for selling export molasses and further with reference to the
negotiations held on 3-3-2004, it is informed to you that on the approval of
Commissioner, Kumaon Mandal, Nainital, you are hereby permitted to lift total 85,000
quintals of molasses from the following sugar mills at the rate mentioned against the
name of every sugar mill. You will have to lift the said molasses by 31-5-2004.
@page-SC2163
S.No. Name of Sugar Mill Allotted (Per Qt.) Rate Name of firm
1. Nadehi Co-op. 15000 127 Patiala Distillers and Manufacturers Ltd.
2. Gadarpur Co-op. 15000 127 Do
3. Dolwala Co-op. 15000 127 Do
4. Sitarganj Co-op. 15000 127 Chandigarh Distillers and Bottlers Ltd.
5. Kiccha 25000 127 Do
In addition to the rates mentioned above you will have to pay excise duty, sales tax and
other applicable taxes. You are also hereby informed that you will be bound by all the
conditions mentioned in the tender form.
Sd/- Assistant Cane Commissioner Udham Singh Nagar
Copy to :
General Manager/Executive Director of aforesaid Chini Mills with a request that they
should grant necessary permission for lifting quantity of molasses mentioned against each
Sugar Mill, after completing all formalities. The drafts towards the earnest money for all
the sugar mills except Nadehi Sugar Mill have been received. The concerned sugar mills
are requested to collect the draft regarding earnest money from the office.
9. Around that time, the State Government received several reports that the prevailing
price of molasses was much higher. On 06-04-2004, M/s. Associated Alcohols and
Breweries Limited, Jaipur and M/s. Jagjit Industries Limited, Kapurthala, wrote letters to
the District Magistrate, Udham Singh Nagar, offering to purchase molasses from the
sugar mills of Kiccha, Sitarganj, Gadarpur, Nadehi and Doiwala at the rate of Rs.260/-
and Rs.250/- per quintal respectively. M/s. Uttar Pradesh Sahkari Sugar Mills Sangh
Limited, Lucknow, informed the Government of Uttaranchal by a fax message that the
stock of molasses lying at the co-operative sugar mills in the State of U.P. at Sarsawa,
Bagpat and Morna Distilleries were sold to M/s. Chandigarh Distillers and Bottlers
Limited on 8-4-2004 at the rate of Rs.300/- per quintal. Information was also received
that molasses were being sold by the neighbouring private sector sugar mills in
Uttaranchal at rates ranging from Rs. 310/- to Rs.330/- per quintal. In view of it, the
Additional Secretary, Cane Development and Sugar Industries submitted a report to the
Secretary, Cane Development and Sugar Industries, (for short 'Secretary (Sugar)')
referring to the irregularities in the proposal for supply of 85,000 quintals to first
respondent and stating that the six sugar mills would suffer a loss of more than Rs.1.40
crores if they were required to sell molasses at the rate of Rs.127/- per quintal to the first
respondent. The Secretary (Sugar), by letter dated 08-04-2004 addressed to the five sugar
mills, stayed the operation of the letter dated 26-03-2004 issued by the Assistant Cane
Commissioner allotting 85,000 quintals of molasses to first respondent until further
orders.
10. Being aggrieved, the first respondent filed W.P.(C) No.318/2004 in the High Court
praying inter alia to issue directions to the appellants herein (the State Government,
Controller of Molasses, Molasses Sale Committee and the five Sugar Mills) to continue
the supply of molasses to him so that the entire allotted quantity of 85,000 quintals could
be lifted on or before 31-05-2004. It was alleged that the first respondent had already
taken delivery of 7465.9 quintals of molasses, from three sugar mills at Nadehi, Sitarganj,
and Doiwala and that he had also made all arrangements for taking delivery of the
balance stock.
11. A Division Bench of the High Court, by interim order dated 19-04-2004, directed the
State Government to take a decision on the claim of first respondent after giving hearing
within 10 days. Pending such decision, the High Court permitted the first respondent to
lift upto 20,000 quintals of molasses. The High Court also directed that the writ petition
be listed on 29-04-2004 for final hearing and disposal.
12. By order dated 20-04-2004, the State Government dissolved the earlier Molasses Sale
Committee and in its place
@page-SC2164
reconstituted a fresh Molasses Sale Committee. The Secretary, Sugar vide letter dated 20-
04-2004 sought certain information/ clarifications from the first respondent as also from
Patiala Distillers and Chandigarh Distillers, and on 22-04-2004 afforded personal hearing
to the Proprietor and representative of first respondent and representatives of Patiala
Distillers and Chandigarh Distillers. Thereafter, on due and proper consideration of the
material on record, the Secretary (Sugar), passed a detailed order dated 24-04-2004,
holding that there was no valid contract for supply of molasses to first respondent and
therefore the allotment letter dated 26-3-2004 was without any authority and
consequently cancelled the said allotment letter issued by the Assistant Cane
Commissioner allotting 85,000 quintals of molasses to the first respondent. The findings
on the basis of which he cancelled the allotment letter dated 26-3-2004 are extracted
below :
"(i) That as per notice published on 23-2-2004 in Amar Ujala newspaper the tenders were
invited from bona fide consumers and it was a compulsory condition to deposit Rs.1 lac
earnest money with the tender. In this regard M/s. Vardan Linkers submitted its offer for
15000 quintals of molasses @ 119 per quintal only for Nadehi Sugar Mills in its tender.
No rates were mentioned for remaining sugar factories namely Gadarpur, Sitarganj,
Kiccha, Doiwala by M/ s. Vardan Linkers in its tender form. Moreover, no Bank draft
towards earnest money for Rs. 1 lac was submitted with tender form for Nadehi Sugar
Mills due to which the tender was defective and was not acceptable.
(ii) That on 3-3-2004 on the date of negotiation M/s. Vardan Linkers has offered its
negotiated rates @ Rs.127 per quintal of molasses, only for Nadehi Sugar Mills. The
remark on the aforesaid negotiation form given by the above firm that they are ready to
lift the molasses of other sugar factories on this rate if their rates are approved by the
Committee, in that case they are ready to deposit within one week. This condition is not
acceptable in accordance to law because the conditional tenders are liable for
cancellation. The tender opening form dated 1-3-2004 and the negotiation form dated 3-
3-2004 contains the signature of General Manager, Sugar Mills, Gadarpur, Molasses
Clerk, Sitarganj, Purchase Clerk and Assistant Cane Commissioner. As such the Purchase
Clerk and Molasses Clerk were not the members of the Committee and their participation
was not legal.
(iii) M/s. Vardan Linkers has not offered its rates for Gadarpur, Doiwala, Sitarganj, and
Kichha Sugar Mills nor submitted bank drafts for earnest money for Rs. 1 lac for each
sugar factories with the tender on 1-3-2004 or 3-3-2004. Moreover, the General
Managers of these mills who were also the members were not present in the Committee
meeting on 1-3-2004 and 3-3-2004 so the sale of molasses of these mills is not in
accordance to the law.
(iv) The Assistant Cane Commissioner's letter dated 26-3-2004 which is originally
written to M/s. Vardan Linkers, Bijnor contains the details of M/s. Patiala Distilleries and
Manufactureres and M/s. Chandigarh Distillers to whom the molasses is sold @ Rs.127
per quintal but M/s. Vardan Linkers did not disclose their names in its tender form.
Moreover, on 1-3-2004 at the time of tender submission and on 3-3-2004 at the time of
negotiation there were no authorization letters in favour of M/s. Vardan Linkers of these
two distillers from which it is very clear that M/s. Vardan Linkers is not a bona fide
purchaser.
(v) That in condition No.9 of the tender form it is clearly mentioned that no person will
transport the molasses in Uttaranchal and Uttar Pradesh and out of these States without
the prior permission of Controller of Molasses M/s. Vardan Linkers has enclosed with its
writ petition as Annexure Nos.l and 2 which are the No Objection Certificate of Excise
and Taxation Commissioner, Patiala dated 16-3-2004 issued in favour of M/s. Patiala
Distiller and Manufacturer and 'No Objection Certificate' dated 12-3-2004 issued in
favour of Chandigarh Distillers and Bottlers, from which it is clearly evident that on 1-3-
2004 on the date of submission of tenders and on 3-3-2004 at the time of negotiation they
have no such certificate. No document has been produced about the approval of
Controller of Molasses. From this it is clear that even on compliance of this condition the
tender was not acceptable.
(vi) From the information obtained from the sugar mills it has been observed that the
letter dated 26-3-2004 issued by Assistant Cane Commissioner for sale of molasses in
favour of M/s. Vardan Linkers was
@page-SC2165
only submitted in the mills by the representative during the period 6-4-2004 to 8-4-2004
of M/s. Vardan Linkers and they lifted the molasses during this period. During this period
another firm M/s. Jagjit Industries, Kapurthala and another firm M/s. Associated Alcohol
and Breweries Limited vide its fax letter dated 6-4-2004 offered its rates @ Rs.250 and
Rs.260 per quintal respectively for molasses. The submission of alleged letter dated 26-3-
2004 of Assistant Cane Commissioner issued a letter in favour of M/s. Vardan Linkers
and its submission by its representative in the mills during the period 6-4-2004 to 8-4-
2004 creates doubt and question mark, and by this act it creates loss of Rs. 1.40 crores to
the mills of State of Uttaranchal. As such it is reviewed.
(vii) The Assistant Cane Commissioner, Udham Singh Nagar letter No.2345/C/
Sheera/Rudrapur dated 15-3-2004 issued to M/s. Vardan Linkers for sale of 5000 quintals
of molasses of Nadehi Sugar Mills contains the details of tender dated 1-3-2004 and
subsequent negotiations dated 3-3-2004. As such the Assistant Cane Commissioner
would have preferred fresh tenders for sale of molasses if it was not considered for sale at
that time.
(viii) From the facts available on file, it is observed that one M/s. Chandigarh Distillers is
purchasing molasses @ Rs.300/-per quintal from the Co-operative Sugar Mills of UP
which were near to the sugar mills of State of Uttaranchal. Moreover, the private sector
mills in the State of Uttaranchal, like Laksar Uttam, Iqbalpur and Kashipur are selling the
molasses @ Rs.330, Rs.320, Rs.320 and Rs.310 per quintal of molasses respectively. As
such without any valid contract with the mill of State of Uttaranchal to sale the molasses
@ Rs.127 per quintal to M/s. Vardan Linkers is against the rules.
13. Being aggrieved by the interim direction dated 19-4-2004 to supply 20,000 quintals
of molasses to the first respondent, the appellants approached this Court. When the
special leave petitions came up for hearing on 5-5-2004, this Court granted leave and
disposed of the appeals [CA Nos. 2984-86/ 2004] in the following terms :
"By consent of the parties, the impugned order are set aside. The respondents are
permitted to amend their Writ Petition to challenge the Order dated 24th April, 2004.
Reply, if any, including to this amendment to be filed within two weeks from today. The
High Court is requested to dispose of the Writ Petition within a period of four weeks
thereafter."
The first respondent thereafter made an application for amendment of the pending writ
petition, praying to challenge the order of cancellation dated 24-4-2004. The High Court
allowed the application for amendment on 18-05-2004. The State of Uttaranchal and the
Sugar Mills filed separate counter affidavits, in opposition to the writ petitions setting out
the entire facts, and contended that there was no concluded contract with the first
respondent, for sale of 85,000 quintals of molasses; and that the first respondent, in
collusion with certain officers (the Assistant Cane Commissioner and District Magistrate,
Udham Singh Nagar), had managed to secure allotment of 85,000 quintals of molasses
without any authority.
14. A Division Bench of the High Court heard the writ petition and allowed it by
judgment dated 28-07-2004. The High Court quashed the order dated 24-04-2004 passed
by the Secretary (Sugar) and directed that the first respondent "shall be allowed to lift
85,000 quintals of molasses less the quantity already lifted", in terms of letter dated 26-
03-2004. It also extended the time for lifting the molasses by a period equivalent to the
number of days between 24-4-2004 and 31-5-2004, that is one month and seven days.
The correctness and legality of the said judgment of the High Court is challenged in these
appeals.
Questions for consideration
15. Ordinarily, the remedy available for a party complaining of breach of contract lies for
seeking damages. He will be entitled to the relief of specific performance, if the contract
is capable of being specifically enforced in law. The remedies for a breach of contract
being purely in the realm of contract are dealt with by Civil Courts. The public law
remedy, by way of a Writ Petition under Article 226 of the Constitution of India, is not
available to seek damages for breach of contract or specific performance of contract.
However, where the contractual dispute has a public law element, the power of judicial
review under Article 226 of the Constitution of India may be invoked. We may refer to a
few decisions illustrating the position.
@page-SC2166
15.1) In Divisional Forest Officer v. Bishwanath Tea Co. Ltd. (1981) 3 SCC 235, and
State of Gujarat vs. M. P. Shah Charitable Trust (1994) 3 SCC 552, this Court observed
that a writ petition challenging the termination of an arrangement which is said to be
governed by a contract or agreement between the parties is not maintainable since it was
a public law remedy, which was not available in private law field where the matter is
governed by a non-statutory contract.AIR 1981 SC 1368
1995 AIR SCW 2584
15.2) In Mahabir Auto Stores v. Indian Oil Corporation (1990) 3 SCC 752, this Court
noticed the difference between private law cases where the issue is the exercise of a 'right'
as contrasted from public law cases where the question related to exercise of 'power' :
AIR 1990 SC 1031
"Mr. Salve submitted that in private law field there was no scope for applying the
doctrine of arbitrariness or mala fides. The validity of the action of the parties have to be
tested, it was urged on behalf of the respondent, on the basis of "right" and not "power".
A plea of arbitrariness/mala fides as being so gross cannot shift a matter falling in private
law field to public law field. According to Mr. Salve to permit the same would result in
anomalous situation that whenever State is involved it would always be public law field,
this would mean all redress against the State would fall in the writ jurisdiction and not in
suits before civil courts.
We are of the opinion that in all such cases whether public law or private law rights are
involved, depends upon the facts and circumstances of the case. The dichotomy between
rights and remedies cannot be obliterated by any strait-jacket formula. It has to be
examined in each particular case. Mr. Salve sought to urge that there are certain cases
under Article 14 of arbitrary exercise of such "power" and not cases of exercise of a
"right" arising either under a contract or under a statute. We are of the opinion that that
would depend upon the factual matrix."
15.3) In Veriyamto Naveen v. Government of Andhra Pradesh (2001) 8 SCC 344, this
Court observed : 2001 AIR SCW 3701, (Para 22)
"Where the breach of contract involves breach of statutory obligation when the order
complained of was made in exercise of statutory power by a statutory authority, though
cause of action arises out of or pertains to contract, brings it within the sphere of public
law because the power exercised is apart from contract. The freedom of the Government
to enter into business with anybody it likes is subject to the condition of reasonableness
and fair play as well as public interest. After entering into a contract, in cancelling the
contract which is subject to terms of the statutory provisions, as in the present case, it
cannot be said that the matter falls purely in a contractual field."
16. Finding serious irregularities in the letter dated 26-3-2004 issued by the Assistant
Cane Commissioner, which directed supply of 85,000 quintals of molasses by five sugar
mills to two distilleries through first respondent at a very low price, the Secretary (Sugar),
on 8-4-2004, stayed the operation of the said allotment letter. The decision was
challenged by the first respondent in the writ petition by contending that the allotment
letter dated 26-3-2004 authorizing him to lift 85,000 quintals of molasses was in
pursuance of a concluded contract for sale of such molasses and therefore the decision of
staying the operation of the allotment letter was invalid and illegal. The initial prayer in
the writ petition was for a direction to 'continue the supply of molasses so that entire
allotted quantity of 85,000 quintals of molasses could be lifted on or before 31-5-2004'.
As the order dated 8-4-2004 of the Secretary (Sugar), staying the allotment letter was
pending, the High Court in the meantime issued an interim direction to the State
Government to hold inquiry in the matter after giving hearing to the first respondent.
Accordingly, the Secretary (Sugar), held an inquiry and passed a detailed order dated 24-
4-2004 giving the instances of irregularities committed by the Assistant Cane
Commissioner and others and held that there was no concluded or valid contract and that
the allotment letter dated 26-3-2004 was as a result of collusion between the first
respondent and the Assistant Cane Commissioner and the District Magistrate and,
therefore, cancelled the allotment letter dated 26-3-2004. In other words, the Secretary
(Sugar), held that as there was no contract at all, therefore, the Assistant Cane
Commissioner could not have issued a letter of allotment permitting the first respondent
to lift 85,000 quintals of molasses. When the said order was passed, the first respondent
amended the
@page-SC2167
writ petition and included a prayer 'for quashing the order of cancellation dated 24-4-
2004', contending that the cancellation order was illegal and arbitrary.
17. If the dispute was considered as purely one relating to existence of an agreement, that
is, whether there was a concluded contract and whether the cancellation and
consequential non-supply amounted to breach of such contract, the first respondent ought
to have approached the Civil Court for damages. On the other hand, when a writ petition
was filed in regard to the said contractual dispute, the issue was whether the Secretary
(Sugar), had acted arbitrarily or unreasonably, in staying the operation of the allotment
letter dated 26-3-2004 or subsequently cancelling the allotment letter. In a civil suit, the
emphasis is on the contractual right. In a writ petition, the focus shifts to the exercise of
power by the authority, that is whether the order of cancellation dated 24-4-2004 passed
by the Secretary (Sugar), was arbitrary or unreasonable. The issue whether there was a
concluded contract and breach thereof becomes secondary. In exercising writ jurisdiction,
if the High Court found that the exercise of power in passing an order of cancellation was
not arbitrary and unreasonable, it should normally desist from giving any finding on
disputed or complicated questions of fact as to whether there was a contract, and relegate
the petitioner to the remedy of a civil suit. Even in cases where the High Court finds that
there is a valid contract, if the impugned administrative action by which the contract is
cancelled, is not unreasonable or arbitrary, it should still refuse to interfere with the same,
leaving the aggrieved party to work out his remedies in a Civil Court. In other words,
when there is a contractual dispute with a public law element, and a party chooses the
public law remedy by way of a writ petition instead of a private law remedy of a suit, he
will not get a full fledged adjudication of his contractual rights, but only a judicial review
of the administrative action. The question whether there was a contract and whether there
was a breach may, however, be examined incidentally while considering the
reasonableness of the administrative action. But where the question whether there was a
contract, is seriously disputed, the High Court cannot assume that there was a valid
contract and on that basis, examine the validity of the administrative action.
18. In this case, the question that arose for consideration in the writ petition was whether
the order dated 24-4-2004 passed by the Secretary (Sugar), cancelling the allotment letter
dated 26-3-2004 was arbitrary and irrational or violative of any administrative law
principles. The question whether there was a concluded contract or not, was only
incidental to the question as to whether cancellation order dated 24-4-2004 by the
Secretary (Sugar), was justified. As the case involved several disputed questions in regard
to the existence of the contract itself, the High Court ought to have referred the first
respondent to a Civil Court. But the High Court in exercise of its writ jurisdiction,
proceeded as if it was dealing with a pure and simple civil suit relating to breach of
contract. When certain disputed facts cropped up, the High Court adopted a strange
procedure of calling the General Managers of Sitarganj Sugar Mills and Nadehi Sugar
Mills and putting some questions to them and recording their statements. The High Court
reached the conclusion that there was a concluded contract between the five sugar mills
and the first respondent for sale of 85,000 quintal of molasses at a price of Rs. 127/- per
quintal. Thereafter, it formulated the question for consideration in the writ petition as
'whether the State Government was competent to cancel the valid and completed
contract', and held that having regard to the doctrines of part performance, legitimate
expectation, estoppel and acquiescence, the cancellation of the allotment letter dated 26-
3-2004 issued by the Assistant Cane Commissioner was unsustainable and the first
respondent was entitled to lift the entire quantity of 85,000 quintal (less 7,465.9 quintal
already lifted), and he was also entitled to extension of time for taking delivery by one
month and seven days from the date of the judgment. In this view of the matter, two
questions arise for our consideration. They are :
(i) Whether the High Court was right in concluding/assuming that there was a valid
contract?
(ii) Whether the High Court was justified in quashing the cancellation order dated 24-4-
2004 passed by Secretary, (Sugar)?
Re : Question (i)
19. Before a court can record a finding as to whether there is a contract, it has to
@page-SC2168
find out who are the parties to the contract, when and what was the offer, whether there
was an acceptance, and whether the offer and acceptance were valid. None of these were
addressed nor answered by the High Court.
20. We extract below the averments made in the writ petition to contend that there is a
concluded contract :
"That aforesaid tenders were opened on 1-3-2004 at the office of Assistant Cane
Commissioner, Udham Singh Nagar. The Assistant Cane Commissioner also happens to
be the Secretary of the Committee.
That subsequently thereafter all the prospective allottees (who had submitted their
tenders) were invited by the Committee and tenders were opened and in an open meeting,
the bidders were asked to increase the bids and negotiations took place and petitioner
being highest as Rs.127 per quintal was accepted.
That at this junction, the deponent has been advised to state that once the bid of the
petitioner was accepted by the authorized Committee for a certain price which was
Rs.127 per quintal, it amounts to valid contract as it has all the ingredients of a valid
contract, namely, offer, acceptance and consideration."
Thus, the case of first respondent is that there was a concluded contract that is acceptance
of his offer on 3-3-2004, when the negotiations took place. But in paras 17 and 19 of the
writ petition, the first respondent alleged that the contract was concluded when the letter
dated 26-3-2004 was issued by the Assistant Cane Commissioner permitting him to lift
85,000 quintals of molasses and the said letter dated 26-3-2004 was a 'agreement'
between the parties. This ambiguity as to whether the contract came into existence on 3-
3-2004 or 26-3-2004 was not even referred to by the High Court in the impugned order.
21. Let us next examine as to who was the purchaser. The tender notice made it clear that
only bona fide consumers (that is, actual users) could make the offer. Admittedly, the first
respondent did not have a distillery or manufacturing unit and was not a 'consumer' of
molasses. He was a transport contractor. Even the allotment letter dated 26-3-2004 shows
that the first respondent was not the 'consumer - purchaser'. Therefore, first respondent
could not be the purchaser. Let us consider whether Patiala Distillers and Chandigarh
Distillers, who were shown as the persons who will take deliveries in the letter dated 26-
3-2004, were the purchasers. They did not make any offer. Nor was any offer made on
their behalf. There was no acceptance addressed to them. There was no agreement or
contract with them. They did not seek delivery nor did they join the first respondent as
petitioners in the writ petition. They were not therefore the 'purchasers'. If neither first
respondent, nor Patiala Distillers/Chandigarh Distillers could be the purchaser, who was
the bona fide consumer who could claim performance? The question remains
unanswered.
22. The tenders were invited for sale of molasses by five independent sugar mills. The
tenderers were required to pay Rs. 1,00,000/- as earnest money, in respect of each sugar
mill from which the tenderer intended to purchase molasses. The five sugar mills were
different legal entities. Two of them were Government companies incorporated under the
Companies Act and the remaining three were independent co-operative sugar mills. The
tender notice and the tender documents would make it clear that though the tender notice
was common, the tenderers were required to make separate offers in regard to molasses to
be purchased from each sugar mill showing the quantity which they wanted to purchase
from each sugar mill and the price which they were willing to pay and also to pay
separate earnest money deposit. The first respondent did not make any offer except in the
case of Nadehi Sugar Mill, even that was not accompanied by the earnest money deposit.
He claims to have made an endorsement in the tender form on 3-3-2004, that if his rate
was accepted, he was ready to lift the entire quantity of molasses from the five factories.
But neither the original offer nor the alleged extension of the offer on 3-3-2004 was
accompanied by any earnest money deposit. There was therefore no valid offer as on 3-3-
2004. Nor was there any acceptance by the Molasses Sales Committee or any of the sugar
mills on 3-3-2004. There was also no acceptance even by the three Members of the
Molasses Sales Committee on 3-3-2004. This is evident from the fact that after the
negotiations meeting, a report was submitted by the Three Members of the Committee to
the Chairman referring to the offer of first respondent seeking his approval for their
@page-SC2169
proposal to sell the molasses of the other Mills to the first respondent. Therefore, it could
not be said that there was a concluded or binding contract for sale or supply of molasses
by any of the five mills on 3-3-2004.
23. It is admitted that the first respondent did not make any offer in the prescribed form
of tender in regard to the molasses of the other four mills (Gadarpur, Doiwala, Sitarganj
and Kitcha). On 3-3-2004 when negotiations were held between the first respondent and
three members of the Committee, the first respondent appears to have expressed his
interest to purchase the molasses of all the mills at a price of Rs. 127/-per quintal and
made an endorsement to that effect in his tender form. First respondent claims to have
paid Rs.4,00,000/- as earnest money deposit in respect of four mills under cover of letter
dated 10-3-2004. But thereafter there was no meeting of the Molasses Sales Committee
nor any acceptance of first respondent's offer. Neither the act of putting up a proposal by
the Assistant Cane Commissioner or the District Magistrate for consideration by the
Chairman of the Molasses Sales Committee nor the alleged approval of the
recommendation for sale by the Chairman of the Molasses Sales Committee will lead to a
binding contract as there was no decision by Molasses Sales Committee to accept the
offer. Therefore, on this count as well, there was no concluded contract.
24. In this case, the first allotment by the Assistant Cane Commissioner was on 15-3-
2004 permitting the first respondent to lift 5000 quintals from Nadehi Mills at Rs. 127/-
per quintals. This was wholly illegal as it was not in pursuance of any concluded contract
and as first respondent was not a bona fide consumer. The first respondent submitted the
authorization letter from the Patiala Distillers and the Chandigarh Distillers only on 14-3-
2004. If there was already a concluded contract with the first respondent on 3-3-2004,
there could not have been any change in the contract by submitting an authorization letter
from Patiala Distillers and Chandigarh Distillers on 14-3-2004. There was also no
correspondence or negotiations subsequent to 3-3-2004 to show that any contract was
concluded in favour of Patiala Distillers or Chandigarh Distillers. Therefore, when the
letter dated 26-3-2004 was issued by the Assistant Cane Commissioner authorizing the
first respondent to lift 85,000 quintals of molasses it was not in pursuance of any
concluded contract but was unilateral unauthorized act on the part of the Assistant Cane
Commissioner which would not bind the State Government.
25. The tender notice clearly specified that only bona fide consumers could make an
offer. In his tender, the first respondent claimed that he was making an offer as a bona
fide consumer, that is, as an actual user of molasses. The tender did not mention that he
was making the offer as an agent of other consumers nor did he disclose the names of any
consumers on whose behalf he was making the offer. He merely made a vague and
sweeping statement that he will lift molasses in favour of distilleries of U.P., Punjab and
Haryana. This showed that he was not acting for any specific principal. Further having
regard to the requirement that sale will be only to bona fide consumers, the offer ought to
have disclosed the names of the Principal and his authority to make the offer on their
behalf, if he was making an offer on behalf of anyone else. Further, the required
Certificate from the Excise Commissioner/Controller of Sugar that the purchaser was a
bona fide consumer, ought to have been enclosed. For all these reasons, therefore, there
could not be any valid contract with first respondent.
26. The order dated 25-3-2003 constituting the Molasses Sales Committee made it clear
that molasses could be sold only by the said Committee. This meant that the Molasses
Sales Committee would identify and decide upon the purchaser, as also the terms of sales
including the price. But the Molasses Sales Committee by itself was not the seller but
only the authority entrusted with the task of finalizing the sales and the seller were the
sugar mills themselves. The Committee consisted of nine members with Commissioner of
Kumaon Mandal as Chairman, the District Magistrate, Udham Singh Nagar and the
General Managers of the six sugar mills as members and the Assistant Cane
Commissioner, Udham Singh Nagar, as the Member-Secretary. Admittedly, the nine
members of the Committee were not present either on 1-3-2004 when the tenders were
opened or on 3-3-2004 when the alleged negotiations were held. The tenders were opened
on 1-3-2004 by the Assistant Cane Commissioner, who was the Secretary of the
Committee. No meeting of the
@page-SC2170
Committee had been called on 3-3-2004. The persons who were present in the alleged
negotiation meeting were the District Magistrate, Udham Singh Nagar and only the
General Manager of Godarpur Sugar Mills, apart from the Member-Secretary. The Chief
Accountant of Sitarganj Sugar Mills who was present, cannot be considered to be a
member of the Committee. The General Managers of other four mills were not present
nor was the Chairman of the Committee present. Three members did not constitute the
quorum for the Committee. Nor did the Committee authorize three members to finalise
the sale of molasses. It cannot therefore, be said that the negotiations held on 3-3-2004
were held by the Molasses Sales Committee or authorized members of the said
Committee. In fact, the Molasses Sales Committee never considered the offer of first
respondent, nor accepted its offer.
27. The communication dated 26-3-2004 from the Assistant Cane Commissioner to the
first respondent whereby and whereunder the first respondent was permitted to lift 85,000
quintals of molasses from the five sugar mills, did not refer to any decision by the
Molasses Sales Committee to sell molasses to the first respondent. It referred only to the
negotiations held on 3-3-2004 and stated that "on the approval of Commissioner, Kumaon
Mandal", first respondent was permitted to lift 85,000 quintals of molasses. The
Commissioner, Kumaon Mandal was not the authority empowered to effect the sale of
molasses. In the absence of any contract under which the five sugar mills agreed to sell
85,000 quintals in all to the first respondent at a price of Rs.127 per quintal, the question
of Assistant Cane Commissioner permitting the first respondent to lift 85,000 quintals of
molasses did not arise. The letter dated 26-3-2004 sent by Assistant Cane Commissioner
cannot therefore, be considered to be a contract for supply of 85,000 quintals of molasses
to the first respondent.
28. Thus, there was no material before the High Court to assume or come to the
conclusion that there was a concluded contract for supply of 85,000 quintals of molasses.
Re : Question (ii) :
29. Let us now examine whether the Secretary (Sugar), was justified in issuing the order
dated 24-4-2004 cancelling the order dated 26-3-2004 and whether the High Court was
justified in questioning the order of the Secretary (Sugar). The order dated 24-4-2004,
passed by the Secretary (Sugar) holding that the first respondent did not have any valid
contract for supply of molasses and it had no right to enforce the letter dated 26-3-2004
issued by the Assistant Cane Commissioner was perfectly valid and justified. We have
already held that the decision of the Secretary, Sugar that there was no concluded contract
for sale of any molasses in favour of first respondent or his nominee is correct and does
not suffer from any infirmity or perversity.
30. The first respondent does not dispute that 70% of the molasses were earmarked for
supply to distilleries and chemical factories in the State of Uttaranchal and 10% for
manufacturers of country-liquor in the State and only 20% was earmarked for use by
bona fide consumers, that is distilleries and chemical factories outside the State.
Obviously, the price fore sale to each category would be different. The price at which
70% is sold to the distilleries and chemical factories within the State will normally be less
than the price at which 20% is sold to distilleries or chemical factories outside the State.
The tenders were invited in regard to the quota earmarked for bona fide consumers where
distilleries and chemical factories outside the State could participate. In spite of it, the
District Magistrate, Udham Singh Nagar, prepared a note for the attention of the
Chairman of the Committee wherein he referred to the price of Rs. 117/- per quintal at
which molasses were being sold to IGL which was a distillery within the State covered by
70% local quota, to justify the sale of molasses to the first respondent under 20% outside
quota though it was not a bona fide consumer at a price of RS.127/- per quintal. The note
neither mentioned the fact of the quantities to be sold nor the fact that the first respondent
had not produced any certificate either from the Cane Commissioner or from the Excise
Department to show that it was a bona fide consumer of molasses.
31. The tender notice made it clear that only bona fide consumers of molasses could
make offers. The first respondent is a proprietary concern carrying on transport business
at Bijnor in the State of Uttar Pradesh but the tender was submitted by the first
respondent in the name and style of "Vardan
@page-SC2171
Linkers, Bijnor being bona fide consumer registered industrial unit." The note added at
the end of the tender stated that "we shall lift molasses in favour of distillery of U.P.,
Punjab and Haryana". If first respondent was to lift the molasses for other units, it was
admittedly not a bona fide consumer. Only on 14-3-2004, the first respondent produced
authorization letters showing him as authorized agent of Patiala Distillers and
Manufacturers Ltd., Patiala and Chandigarh Distillers and Bottlers Ltd., Patiala. On the
basis of those letters, the first respondent requested for delivery of 45,000 quintals (that is
15,000 quintals each from Nadehi, Gadarpur and Doiwala Sugar Mills) to Patiala
Distillers and 40,000 quintals (15,000 quintals from Sitarganj Mills and 25,000 quintals
from Kiccha Mills) to Chandigarh Distillers. Though the tender was opened on 1-3-2004,
the first respondent did not disclose till 14-3-2004 that he was submitting the tender on
behalf of the above said two distillers in the State of Punjab. Thus, it was clear that the
offer was made not by first respondent as a bona fide consumer but as a non-consumer
trader. Therefore, there was no valid offer at all by the first respondent. The Assistant
Cane Commissioner was fully aware that first respondent was not a bona fide consumer,
he was also aware of the prevailing sale prices in regard to molasses to be sold to bona
fide consumers outside the State at much higher prices than what was offered by first
respondent, and also of the fact that the price for the sale of molasses to consumers within
the State was much less than the rate for sale of molasses to bona fide consumers outside
the State, he proceeded to negotiate with the first respondent taking only one more
member (District Magistrate) into confidence. The manner in which the entire matter was
proceeded with, showed collusion between the first respondent on one hand and the
District Magistrate, Udham Singh Nagar and the Assistant Cane Commissioner, Udham
Singh Nagar on the other hand, to dispose of large quantities of valuable molasses at a
throw-away price without proper negotiations and without valid authority from the
Molasses Sales Committee to a party who was not entitled to purchase molasses as a
bona fide purchaser.
32. The various serious irregularities were noticed by the Secretary (Sugar) in his detailed
and reasoned order dated 24-4-2004 and resultantly, he directed cancellation of the letter
dated 26-3-2004 issued by the Assistant Cane Commissioner which permitted the first
respondent to lift 85,000 quintal of molasses from five mills. He also held that there was
no valid contract. In the facts and circumstances, narrated hereinabove, it is not legally
possible to hold that the order dated 24-4-2004 was either arbitrary or unreasonable or
mala fide. It was fully justified and in public interest. If the order dated 24-4-2004 did not
suffer from an infirmity which required correction by application of principles of
Administrative Law, the High Court ought not to have interfered with it. There was,
apparently, no justification for invoking the principles of legitimate expectations,
estoppel, acquiescence and principle of part performance to make out a contract, where
none existed or to give directions to five independent sugar mills to supply huge
quantities of molasses to first respondent without any contract at an admittedly low price
of Rs. 127/- per quintal.
33. We, therefore, allow these appeals and set aside the judgment dated 28-7-2007 passed
by the High Court of Uttaranchal in WP No.318(M/B) of 2004 and dismiss the writ
petition. We direct the first respondent to pay costs of Rs.10,000/- in each appeal (in all
Rs.30,000/-) to the appellants.
34. This Court, by interim orders dated 23-8-2004 and 10-9-2004, had permitted the first
respondent to lift in all 15,000 quintals of molasses from Nadehi Mills. Though the first
respondent is not entitled to it, not being a bona fide consumer, if the supplies have
already been effected and paid for, the issue of supply to that extent may be treated as
closed.
Appeal allowed.
AIR 2008 SUPREME COURT 2171 "Ashutosh Chaturvedi v. Prano Devi"
(From : Patna)
-2008.
Ashutosh Chaturvedi v. Prano Devi and Ors.
Civil P.C. (5 of 1908), O.6, R.17 - AMENDMENT - PLEADINGS - DECLARATION
OF TITLE - SALE DEED - SUCCESSION - LIMITATION - Amendment of plaint -
Declaratory suit - Plaintiff's claim for title and for setting aside sale deeds executed by
defendant in favour of third parties - Prayer for amendment of plaint to claim preferential
right u/S.22 of Hindu
@page-SC2172
Succesion Act on premise that plaintiff was co-sharer of suit lands - Such preferential
right can ordinarily be claimed within one year - Plaintiff seeking amendment after 13
years - Facts that sale deeds were executed in violation of injunction order or that matter
was pending in lower Court for long period - Cannot be ground to allow amendment.
Hindu Succession Act (30 of 1956), S.22.
Limitation Act (36 of 1963), Art.97.
(2004) 3 SCC 392, AIR 1957 SC 357, 2006 (13) Scale 332, AIR 1975 Pat 336, AIR 1986
Ori. 119, Relied on.
AIR 1976 Ker. 19. Ref. (Paras 8, 9, 15)
2006 (13) Scale 332 (Rel. on) 11
(2004) 3 SCC 392 (Rel. on) 11
AIR 1986 Orissa 119 (Rel. on) 13
AIR 1976 Kerala 19 (Ref) 6
AIR 1975 Patna 336 (Rel. on) 12
AIR 1957 SC 357 (Rel.on) 11
Akhilesh Kumar Pandey, Sudhanshu Saran, for Appellant; Shishir Pinaki, Anju Prakash,
Biju Shankar, Sanjay Jain, for Respondents.
Judgement
2. Appellant is before us aggrieved by and dissatisfied with the judgment and order dated
21-11-2005 passed in CR No. 1532 of 2003 by the High Court of Patna whereby and
whereunder an order dated 29-8-2003 passed by Subordinate Judge VIII, Ara in Title Suit
No. 58 of 1990 rejecting an application for amendment of plaint filed by the appellant
herein was dismissed.
3. Appellant herein is the son of the original plaintiff who filed a suit for declaration of
his title and confirmation of possession as also for setting aside a deed of sale executed
by the respondent herein. The said suit was filed on or about 21-5-1990. A deed of sale
was executed in favour of defendant Nos. l and 2 on or about 8-3-1990.
An application for passing an interim order was filed in the said suit whereupon an order
of status quo was passed on 1-6-1990. During the pendency of the said suit, two deeds of
sale were executed in favour of third parties on 8-6-1990 and 18-6-1990.
4. The interim order passed by the learned Trial Judge was affirmed by an order dated 9-
11-1990. Three Miscellaneous Appeals were filed thereagainst by the respondents. The
matters were said to be pending before the District Judge for a long time. However, on or
about 11-6-2003, the appellant herein moved an application for amendment to add a new
relief in one of the plaints claiming preferential right in respect of the said property on the
premise that the plaintiff was a co-sharer of the lands in suit to the following effect :
" 1. That after 1 "Ka" of the plaint one new relief 1 "Kha" may be added.
1'Kha' - That if for any reason if there is any difficulty in granting relief 1 'Ka' then in that
situation decree under Section 22 Hindu Succession Act (preferential right to acquire on
same terms and conditions) be granted and the purchaser-defendant be directed that they
should execute sale deed of the disputed land in favour of the plaintiff as mentioned in
schedules 2, 3, 4 of the plaint and get it registered and if for any reason the new
purchaser-defendant are not executing the sale deed nor are getting it registered then in
that situation through Court the sale deed may be executed and registered."
Respondents herein, in response thereto raised the following contentions :
"a) The application is not maintainable, the same being mala fide moved with the purpose
to linger the trial of the case,
b) The application is frivolous and bogus and the same is barred under law of limitation.
Under Article 97 of the Limitation Act, 1963 for enforcement of right of pre-emption the
prescribed period of limitation is one year from the date of sale, whereas this suit was
filed in the year 1990 and the amendment is sought on this ground in 2003 after about 13
years of the filing of the suit,
c) The proposed amendment seeks to change the entire nature and scope of the suit and
also the cause of action,
d) The amendment application is barred under Order II of CPC,
e) The same is barred under law of waiver and acquiescence,
f) That under the gift deed dated 6.9.49 which has attained finality each donees has got
separate and defined title over their separate shares of gift property,
g) In the past also the plaintiff has moved several amendment applications and now they
are in perpetual habit of moving applications
@page-SC2173
seeking amendment in the plaint,
h) That trial of case has started long back and the application fails to disclose any reason
why the proposed amendment was not carried out in the past."
5. By reason of a judgment and order dated 29-8-2003, the learned Trial Judge dismissed
the said application for amendment of the plaint opining that the same, if allowed, would
change the nature of the suit.
The High Court, by reason of the impugned judgment has affirmed the said view of the
learned Trial Judge.
6. Mr. Akhilesh Kumar Pandey, learned counsel appearing on behalf of the appellant,
would submit that the learned Trial Judge as also the High Court wrongly proceeded on
the basis of Section 22 of the Hindu Succession Act, 1956 was not attracted in the instant
case as the deeds of sale have already been executed. It was submitted that the word
'proposed' occurring in the said section must be given a wider meaning so as to bring
within its purview a right of a co-sharer to file a civil suit in the event a deed of sale has
been executed. Strong reliance in this behalf has been placed on Valliyil Sreedevi Amma
v. Subhadra Devi and Ors. [AIR 1976 Kerala 19].
7. Mr. Shishir Pinaki, learned counsel appearing on behalf of the respondent, on the other
hand, would submit that this Court, in a case of this nature, need not go into the said
question as admittedly the appellant having waited for a period of 13 years to claim his
purported preferential right in terms of Section 22 of the Hindu Succession Act, the same
was not maintainable being barred by limitation.
Section 22 of the Hindu Succession Act reads, thus :
"Section 22. - Preferential right to acquire property in certain cases. - (1) Where, after the
commencement of this Act, interest in any immovable property of an intestate, or in any
business carried on by him or her, whether solely or in conjunction with others, devolve
upon to two or more heirs specified in class I of the Schedule, and any one of such heirs
proposes to transfer his or her interest in the property or business, the other heirs shall
have a preferential right to acquire the interest proposed to be transferred.
(2) The consideration for which any interest in the property of the deceased may be
transferred under this section shall, in the absence of any agreement between the parties,
be determined by the court on application being made to it in this behalf, and if any
person proposing to acquire the interest is not willing to acquire it for the consideration
so determined, such person shall be liable to pay all costs of or incident to the application.
(3) If there are two or more heirs specified in class I of the Schedule proposing to acquire
any interest under this section, that heir who offers the highest consideration for the
transfer shall be preferred.
Explanation. - In this section, "court" means the court within the limits of whose
jurisdiction the immovable property is situate or the business is carried on, and includes
any other court which the State Government may, by notification in the Official Gazette,
specify in this behalf."
8. A right claiming preference over a property in terms of a statute ordinarily is a weak
right.
Limitation Act 1963, by Article 97, provides for one year's limitation for claiming such a
right. The suit was filed in the year 1990. The sale deeds, during the pendency of the suit,
were executed on 8-6-1990 and 18-6-1990. The application for amendment was filed 13
years after the filing of the suit. A suit claiming preferential right was required to be filed
ordinarily within the prescribed period of limitation.
9. Contention of Mr. Pandey that two deeds of sale were executed in violation of the
order of injunction and in that view of the matter, the deeds of sale must be held to be
invalid in law, in our opinion, cannot be a ground for allowing the amendment of the
plaint. If the deeds of sale are held to be bad in law, that would not mean that by reason
thereof, the co-sharer of the plaintiff would propose to execute a sale deed giving a cause
of action for filing a fresh suit. Plaintiff was required to exercise his right under Section
22 of the Hindu Succession Act within the period prescribed therefor. The said deeds of
sale either would be declared valid or invalid. In either way, the appellant cannot take any
benefit of the provisions of Section 22 of the Hindu Succession Act.
10. It is also idle to contend that as the matters had been pending in the court of
@page-SC2174
the District Judge for a long period, the appellant could not file an application for
amendment of plaint. Even if the records had been called for by the learned District
Judge, the same would not have come in the way of the appellant for filing an application
for amendment of the plaint. A Trial Court, despite requisitioning of the records by the
Appellate Court maintains a supplementary record. There is nothing on record to show
that the learned District Judge granted an order of stay.
11
. In T.N. Alloy Foundry Co. Ltd. v. T.N. Electricity Board and Ors. [(2004) 3 SCC 392],
this Court, upon taking into consideration its earlier decisions in L.J. Leach and Company
Ltd. v. Jardlne Skinner and Co. [1957 SCR438], held that as a rule, the Court will decline
to allow amendment for a fresh suit on the amended claim if it had become barred by
limitation on the date of application. {See also State Bank of Hyderabad v. Town
Municipal Council [2006 (13) SCALE 332]}. AIR 1957 SC 357
12. In Bhola Nath Rastogi and Ors. v. Santosh Prakash Arya and Ors. [AIR 1975 Patna
336], L.M. Sharma, J (as the learned Chief Justice of India then was), opined :
"The general rule of survivorship applying to Hindu Mitakshara families still holds good
subject of course to cases which are covered by the provisions of Section 6 of the Act.
The provision of proviso to Section 6 will be applicable only to such cases where the
deceased left behind him surviving a female relative specified in class I of the Schedule
or a male relative specified in that class who claims through such female relatives. It is
not suggested by the appellants in the present case that Dhanu Lal died leaving behind
any heir other than his two sons. I am, therefore, of the opinion that the proviso to Section
6 does not apply to the present case so as to defeat the rule of survivorship being applied
to the parties. When Dhanu Lal died, his two sons took the entire interest by survivorship
and as is admittedly the case now there has been separation between the two sons before
the sale deed by defendants 25 to 28 was executed. Defendant No. 1 or his sons,
therefore, cannot be permitted to invoke the benefit of Section 22 of the Act.
9. There appears to be another difficulty in the way of the appellants in raising this
question. Sub-section (2) of Section 22 of the Hindu Succession Act indicates that a party
can enforce a right of pre-emption by making an application to that effect in a Court
which has been explained in the Explanation to this Section. If a party intending to take
the benefit of the right given under Section 22(1), files an application, the Court has to
determine the amount of consideration for the intended transfer and the party is again
given an option to get such a transfer from the co-sharer on such consideration or to
refuse the same. If the party declines to purchase the property for the same amount, he
has to bear the cost of the proceeding. No such application has ever been filed by any of
the parties anywhere. This plea was not even raised in the Court below. It was for the first
time in this appeal that the appellants have raised this point. Even in this Court no
application has been filed for enforcement of such a right. In these circumstances, the
plea has to be rejected."
13. In Muralidhar Das v. Bansidhar Das and Ors. [AIR 1986 Orissa 119], upon taking
into consideration the decisions of the Calcutta and Kerala High Court, stated the law in
the following terms :
"Sub-section (2) provides for determination of consideration when there is a difference
between the parties, namely, the one intending to acquire and the other proposing to
transfer. The provision does not go any further. S. 22 does not lay down any other
procedure. The scope of the application is limited and hence the jurisdiction of the Court.
The section does not lay down the procedure for the enforcement of the right conferred
under sub-section (1). Only one aspect of the controversies that might arise pursuant to
the right conferred by subsection (1) has been taken care of and no other. The provision
being clear and categorical and there being no ambiguity in it, it is not open to the Court
to so interpret the provision which would amount to legislating on its part. Ordinarily the
Courts do not make law but interpret it."
14. The decision of the Kerala High Court also provides for a right upon a co-sharer to
file a suit for enforcing such a right, stating :
"The object of sub-section (1) as we understand it is that in cases where by virtue of
intestate succession under the Act any interest in immovable property has devolved upon
two or more heirs specified in Class I of the Schedule and any one of such heirs
@page-SC2175
proposes to transfer his interest in the property the other heirs should have a preferential
right to acquire the interest which is so proposed to be transferred. The said intention of
Parliament can be effectuated only if we consider the section as conferring an enforceable
right on the heirs other than the one who proposes to transfer his interest. The section
confers on such co-heirs a preferential right to acquire the interest which is proposed to
be transferred by the other co-heir. In case the proposed transfer is effected by one of the
co-heirs in violation of the right conferred on his co-heirs by sub-s.(l) the latter cannot
certainly be without a remedy because every legal right must necessarily carry with it a
remedy for enforcing the same. The remedy of the non-alienating co-heirs, in such
circumstances, will, in our opinion, be to seek the intervention of the Court to enable
them to acquire the right which has been transferred away by the other co-heir in
violation of sub-section (1) of Section 22. In as much as the section does not provide any
special procedure for seeking the said remedy, the ordinary procedure for enforcement of
any civil right has to be resorted to by the co-heirs who wish to enforce their rights under
Section 22(1); in other words the remedy is by way of a regular civil suit before the
competent court. Where the properties have been already alienated in favour of strangers
there is all the more reason why there should be a full and fair adjudication of the entire
matter in a suit tried before a competent civil Court because various factual questions are
bound to arise for determination in such a suit wherein the principal issue would be
whether the transfer complained of was effected in violation of sub-section (1) of Section
22. The main purpose of such a suit instituted by the co-heir will necessarily be the
enforcement of the right conferred by Section 22(1) of the Act. The question of invalidity
of the transfer effected by the other co-heir in favour of strangers becomes relevant in
such an action as an incidental matter which has necessarily to be gone into for the
purpose of determining whether the plaintiff is entitled to the relief sought by him against
his co-heirs in enforcement of the right conferred by Section 22(1)."
15. The only remedy which was, thus, available to the appellant might be to file a suit.
But as the same itself being barred by limitation, we are of the opinion that the Court
would not exercise its discretionary jurisdiction to allow the amendment of the plaint.
16. There is, thus, no infirmity in the impugned judgment. Appeal is dismissed. No costs.
Appeal dismissed.
AIR 2008 SUPREME COURT 2175 "B. L. Arora v. Chairman and Managing Director,
Syndicate Bank"
(From : Delhi)*
Civil Appeal No. 2904 of 2008 (arising out of SLP (C) No. 8026 of 2006). D/- 22 -4
-2008.
B.L. Arora v. Chairman and Managing Director, Syndicate Bank.
Banking Companies (Acquisition and Transfer of Undertakings) Act (5 of 1970), S.19 -
Syndicate Bank (Employees) Pension Regulations (1995), Regn.24 - BANKING -
PENSION - Pension - Bank employee was short commissioned officer in army - Entitled
to benefit of military service for purpose of seniority and pay fixation - And not for
fixation of pension.
1998 AIR SCW 3995, Disting. (Para 7)
1998 AIR SCW 3995 : AIR 1999 SC 1472 : 1999 Lab IC 614 (Disting.) 7
Naveen R. Nath, for Appellant; A.B. Dail, Sr. Advocate, Manish Chauhan, Ms. Sumati
Anand, Gopal Kumar, Rajiv Nanda, for Respondent.
* Writ Petn. (Civil) No. 5917 of 2003, D/- 5-4-2005 (Delhi).
Judgement
2. Challenge in this appeal is to the order passed by a Division Bench of the Delhi High
Court dismissing the writ petition filed by the appellant.
Appellant joined Short Service Commission in the Indian Army. There was an
advertisement issued by the respondent-Syndicate Bank (hereinafter referred to as the
'Bank') inviting applications for the posts of
@page-SC2176
Junior Officers. Out of the total number of posts, 25% posts were reserved for Ex.
Emergency Commissioned Officers/Short Service Commissioned Officers. Appellant
appeared in the written test and was declared qualified. He joined the Bank on 29-3-1976
on being released from armed forces. For the purpose of fixation of pay and promotion
service, rendered by the appellant in armed forces was taken into consideration in view of
certain government instructions. Appellant opted for voluntary retirement in the year
2001 in view of a scheme framed by the Bank. Appellant thereafter made a claim that the
period of military service should be taken into account for fixation of pension
computation and gratuity. The claim was turned down by the Bank in view of Regulation
24 of the Syndicate Bank (Employees) Pension Regulations, 1995 (in short the
"Regulations"). The appellant took the stand that in view of the Government of India's
instructions dated 10th November, 1986, the period of military service should be included
for the purpose of computing the pension. The High Court dismissed the writ petition
holding that the benefit of earlier army service in terms of Rule 6 of The Released
Emergency Commissioned Officers and Short Service Commissioned Officers
(Reservation on Vacancies) Rules, 1971 (in short 'Rules') and Memorandum dated 21-9-
1993 are restricted to the limited purpose of seniority and pay fixation.
4. Learned counsel for the appellant reiterated the stands taken before the High Court. It
was submitted that there was no reason or basis to exclude military service while
computing the entitlement of pension when such period of service was counted for the
purpose of seniority and scale of pay.
5. Learned counsel for the respondents, on the other hand, submitted that in view of the
clear stipulation in Regulation 24 the claim made by the appellant is clearly unacceptable.
6. Regulation 24 reads as follows :
"24. MILITARY SERVICE :
An employee who has rendered military service before appointment in the Bank shall
continue to draw the military pension, if any, and military service rendered by the
employee shall not count as qualifying service for pension."
7
. A bare reading of Regulation 24 makes it clear that an employee is entitled to the benefit
of military pension, if any, but the military service is not to be counted as qualifying
service for pension. Stand of the appellant is that because the appellant was serving as
short commissioned officer he is not entitled to the military pension. That in no way
makes the position better. The object of Regulation 24 is clear that the benefit is available
for rendering service in the military has to be obtained from the army, if he is entitled to
it. The decision in State Bank of India v. D. Hanumantha Rao and Ann (1998 (6) SCC
183) on which strong reliance is placed is of no assistance to the appellant. The judgment
was rendered in a different factual scenario. Stand of the appellant is that the government
in various memoranda extended service benefit in the matter of pay fixation and seniority.
Reference is made to the communication of the Government of India, Ministry of
Finance, Department of Economic Affairs, Banking Division No.9/20/69-ECTT (C) dt.
26.8.1971 and F.No. 10/47/86-SCT(B) dt. 10-11-1986. 1998 AIR SCW 3995
8. A bare reading of these communications goes to show that they relate to only pay
fixation and seniority and do not throw any light on the pension aspect. It is submitted
that at the relevant point of time the pension scheme was not in vogue in the Bank. If any
benefit was intended in the matter of pension as claimed that could have been clearly
spelt out in an appropriate office memorandum or circular. That has not been done.
Therefore, the plea advanced has no substance.
9. Looked at from any angle the appeal is sans merit, deserves dismissal, which we direct.
10. The appeal is dismissed without any order as to costs.
Appeal dismissed.
@page-SC2177
AIR 2008 SUPREME COURT 2177 "Ormi Textiles, M/s. v. State of U. P."
(From : Allahabad)*
Civil Appeal No.3054 of 2008 (arising out of SLP (Civ.) No. 17139 of 2006), D/- 29 -4
-2008.
M/s. Ormi Textiles and Anr. v. State of U. P. and Ors.
State Financial Corporations Act (63 of 1951), S.29 - FINANCIAL CORPORATION -
MORTGAGE - SALE - Rights of Financial Corporation - Right to sell property of
defaulting unit - Limited to property mortgaged.
C. M. W. P. No. 31343 of 2006, D/-02-06-2006 (All), Reversed.
The right of corporation to sell the property of defaulting borrower must be exercised
only in respect of the mortgaged property and not the one which is not the subject matter
thereof. The Act was enacted to provide for the establishment of the State Financial
Corporations. Various statutory powers have been conferred upon the Corporation. It has
power to take recourse to various remedies provided under the Act, apart from the terms
of the contract entered into by and between it and the borrower as also the provisions of
the Transfer of Property Act. The right of the Corporation in the case of a default on the
part of the borrower is a statutory power. The provisions of the Act conferring such a
power require to undergo a purposive construction. In case of default by borrower unit S.
29 confers on the Corporation the right to take over the management or possession or
both of the industrial concerns. This power is in addition to the power of the right to
transfer by way of lease or sale and realize the property pledged, mortgaged,
hypothecated or assigned to the Corporation. The right to transfer by way of lease or sale,
however, is not an independent right. Only in case of default, such a right can be
exercised. The powers contained in two parts of Section 29 of the Act are separate and
distinct. The power to take over the management is ordinarily exercised when the concern
is an on-going one. But, when a power is conferred to sell the property unilaterally, the
same must have a nexus with the mortgaged property. What can be transferred by the
mortgagee even in terms of the provisions of the Transfer of Property Act is the property
which was the subject matter of mortgage and not any other. C. M. W. P. No. 31343 of
2006, D/-02-06-2006 (All), Reversed. 2008 AIR SCW 2480, Foll. (Paras 10, 14)
2008 AIR SCW 208 : AIR 2008 SC 876 : 2008 (2) AIR Bom R 45 13
2008 AIR SCW 2480 (Foll.) 13
2007 AIR SCW 3752 : AIR 2007 SC 1984 13
2006 AIR SCW 6460 13
2005 AIR SCW 2676 ; AIR 2005 SC 2821 13
Tripatht Raj, Ravi Shankar Kumar and Prakash Kumar Singh, for Appellants; Shrish
Kumar Misra, Ajay Kr. Singh and Subrata Gautam, for Respondents.
* C. M. W. P. No. 31343 of 2006, D/- 2-6-2006 (All)
Judgement
S. B. SINHA, J :- Leave granted.
2. Interpretation and application of Section 29 of the State Financial Corporations Act,
1951 (for short "the Act") is the core question involved herein.
3. Before, however, adverting to the said question, we may notice the basic factual matrix
of the matter.
Appellant No. 1 is a partnership firm. It was constituted in the year 1973. It established a
factory at Kadrabad in the town of Modi Nagar, U.P. A loan of Rs. 3.96 lakhs was applied
for but a sum of Rs. 3.14 lakhs was sanctioned in 1974. Appellant No. 1 was in
possession of 1100 sq. yards in Khasra Plot No. 397M, Khata No. 80 situated in Village
Kadrabad Pargana Jalalabad. The factory is situated on a land measuring 800 sq. yards.
The schedule of the land which was the subject matter of mortgage in favour of the
respondent-Corporation reads as under :
"All that piece or parcel of land measuring 800 sq. yards out of Seven Biswas and Five
Bigamain, bearing Khasra plot number 397 M Khata No. 80, situate in village Eadarkad,
Pargana, Jalalabad, tehsil Ghaziabad district Meerut and bounded :
On the North by : remaining land of Khasra No. 397 F,
On the South by : remaining land of owned by Gur Charan Jit Kaur of Khasra No. 397 M
@page-SC2178
On the east by : D.K. Road
On the west by : Land belonging to other persons."
Appellant was furthermore granted loan for a sum of Rs. 1.51 lakhs as also for a sum of
Rs.3,19,800/- during the period 1977-79. According to the appellant, although a
substantial part of the loan had been repaid, a sum of Rs.3,19,800/- is still owing and due
to the respondent. It has been contended that the mortgaged land admeasuring 800 sq.
yards continued to be the security for the said loans.
The industrial unit of the appellant, however, became sick. Efforts to revive the said unit
failed. It was contended that the respondent Corporation acknowledged that out of an area
of 1350 sq. yards which was in possession of the appellant, only 800 sq. yards was
mortgaged In its favour, wherefor a demand for demarcation was made by it in terms of a
letter dated 17-07-1990, stating :
"The actual area of land belonging to your unit at present is around 1350 sq. yards
approx. So, therefore, it could not be indentified which portion of land has been
mortgaged to the Corporation. In the absence of the demarcating of land mortgaged to the
Corporation, we may not be in a position to evaluate the assets mortgaged at site.
Keeping in view of this, you are hereby advised to submit the following papers for
clarification/indentification for the plot mortgaged to the Corporation so that we may take
action at our end"
4. A notice dated 28-12-2005 under Section 29 of the Act was issued by the respondent-
Corporation.
A writ petition was filed questioning the legality thereof. Pursuant to an interim order
passed by the High Court in the said writ petition, the appellant deposited a further
amount of Rs. 2 lakhs. In the meantime, another unit of the appellant became sick and
subjected to a notice under Section 29 of the Act wherefor also a writ petition was filed
before the High Court which was marked as Civil Misc. Petition No. 7219 of 2006.
5. An advertisement was issued for sale of the appellant's unit covering the land area 7
Siswa, 5 Biswansi (951.25 sq. mtr.) in a newspaper known as 'Amar Ujala' on or about 6-
06-2006.
6. The High Court by reason of the impugned Judgment dismissed the writ petition filed
by the appellants questioning the validity of the said notice, stating :
"Admittedly, the Petitioner approached earlier also this Court against the proceeding
initiated under Section 29, of the State Financial Corporations Act, 1951 in Writ Petition
No. 6703 of 2006 wherein this Court granted indulgence permitting the Petitioner to pay
certain amount within a prescribed time and in the meantime interim order was passed.
Thereafter, again the said order was modified and further opportunity was granted to the
Petitioner but the Petitioner failed to comply both the said order though undertaking has
been given before this Court in the aforesaid Writ Petition in order to obtain the interim
order. In the circumstances, the Respondent Nos. 2 and 3 proceed to take over possession
under Section 29 of the State Financial Corporations Act, 1951 and hence the present
Writ Petition is filed.
In my view, against the same cause of action the present Writ Petition is filed which is not
maintainable. Further, the Petitioner has also approached this Court with unclean hands
inasmuch as he has already got interim orders from this Court by giving certain
undertakings but failed to honour the same and, thus, is not entitled for any equitable
relief under Article 226 of the Constitution of India.
In view of the aforesaid facts and circumstances, the Writ Petition is dismissed in limine."
7. Mr. Tripurari Ray, learned counsel appearing on behalf of the appellants, would submit
that on a plain reading of Section 29 of the Act, it would appear that the mortgaged
property only can be the subject matter of sale.
8. Mr. Shrish Kumar Misra, learned counsel appearing on behalf of the respondents, on
the other hand, would contend :
(i) Section 29 of the Act although is in two parts, each part thereof is separate and
distinct.
(ii) Power of the Corporation to sell the property is not confined only to the mortgaged
property but the entire industrial unit as the power to redeem the mortgage provides for
an additional remedy.
9. Section 29(1) of the Act reads as under :
@page-SC2179
"29. Rights of Financial Corporation in case of default - (1) Where any industrial
concern, which is under a liability to the Financial Corporation under an agreement,
makes any default in repayment of any loan or advance or any instalment thereof or in
meeting its obligations in relation to any guarantee given by the Corporation or otherwise
fails to comply with the terms of its agreement with the Financial Corporation, the
Financial Corporation shall have the right to take over the management or possession or
both of the industrial concerns, as well as the right to transfer by way of lease or sale and
realise the property pledged, mortgaged, hypothecated or assigned to the Financial
Corporation."
10. The Act was enacted to provide for the establishment of the State Financial
Corporations. Various statutory powers have been conferred upon the Corporation. It has
power to take recourse to various remedies provided under the Act, apart from the terms
of the contract entered into by and between it and the borrower as also the provisions of
the Transfer of Property Act. It is a 'State' within the meaning of Article 12 of the
Constitution of India. Its power is, thus, required to be exercised reasonably and fairly.
The right of the Corporation in the case of a default on the part of the borrower is a
statutory power. The provisions of the Act conferring such a power require to undergo a
purposive construction.
For the purpose of invoking Section 29 of the Act, the borrower must have a liability to
the Corporation under an agreement. It must make a default in repayment of any loan or
advance, etc. The Corporation in such a situation shall inter alia have the right to take
over the management or possession or both of the industrial concerns. This power is in
addition to the power of the right to transfer by way of lease or sale and realize the
property pledged, mortgaged, hypothecated or assigned to the Corporation. The right to
transfer by way of lease or sale, however, is not an independent right. Only in case of
default, such a right can be exercised. We must keep in mind that the powers contained in
two parts of Section 29 of the Act are separate and distinct. The power to take over the
management is ordinarily exercised when the concern is an ongoing one. But, when a
power is conferred to sell the property unilaterally, the same must have a nexus with the
mortgaged property. The power to sale cannot be read in isolation. It can also realize the
mortgaged property which would mean that when a property had been sold, only the
mortgaged property can be realized and not any other property which was not the subject
matter of mortgage. What, can be transferred by the mortgagee even in terms of the
provisions of the Transfer of Property Act is the property which was the subject matter of
mortgage and not any other. A power to take over the management or possession is a
statutory power. As and when the debt is realized, the Corporation would be bound to
handover the management or possession of the property, as the ease may be, back to the
industrial establishment.
11. A mortgagee can have a right to sell a property even under the contract. The same
must necessarily mean that the property to be sold is the one over which he has the right,
title and interest. A sale without any right would be a nullity.
12. For proper construction of the provisions of the Act, we may notice the provisions of
Section 31 thereof. It provides for an additional remedy. Whereas Section 29 confers a
power to sale the property unilaterally, Section 31 provides inter alia for the same power
only through the intervention of the court.
Clause (a) of Sub-section (1) of Section 31 of the Act categorically states that the
jurisdiction of the District Judge can be invoked for order of sale of the mortgaged or
assigned property in favour of the Corporation. Clause (b) thereof provides for
transferring the management of the industrial concern. Clauses (aa) and (c) of Sub-
section (1) of Section 31 of the Act provide for additional remedies. When an application
is filed in terms of Section 31 of the Act, the procedures laid down in Sub-section (1A) of
Section 32 of the Act are required to be followed. A further additional remedy has been
provided to a Financial Corporation in terms of Section 32G of the Act.
13
. We need not dilate on the interpretation of the aforementioned provision as the same is
now covered by a decision of this Court in Karnataka State Financial Corporation v. N.
Narasimahaiah and Ors. [2008 (4) SCALE 473] wherein it was held : 2008 AIR
SCW 2480
"26. While interpreting the provisions of a statute, the court employs different 2008
AIR SCW 208
2005 AIR SCW 2676
2006 AIR SCW 6460
2007 AIR SCW 3752
@page-SC2180
principles or canons. To interpret a statute in a reasonable manner, the court must place
itself in the chair of a reasonable legislator/author. [See New India Assurance Company
Ltd. v. Nusli Neville Wadia and Anr. [JT 2008 (1) SC 31]. Attempt on the part of the court
while interpreting the provisions of a statute should, therefore, be to pose a question as to
why one provision has been amended and the other was not? Why one terminology has
been used while inserting a statutory provision and a different clause in another? It is
well-known that casus omissus cannot be supplied. [See Ashok Lanka v. Rishi Dixit
(2005) 5 SCC 598 and J. Srinivasa Rao v. Govt. of A.P. and Anr 2006 (13) SCALE 27
and Southern Petrochemical Industries Co. Ltd. v. Electricity Inspector and E.T.I.O. and
Ors. (2007) 5 SCC 447].
27. The legislative intent, in our opinion, is manifest. The intention of the Parliament in
enacting Sections 29 and 31 of the Act was not similar. Whereas Section 29 of the Act
consists of the property of the industrial concern, Section 31 takes within its sweep both
the property of the industrial concern and as that of the surety. None of the provisions
control each other. The Parliament intended to provide an additional remedy for recovery
of the amount in favour of the Corporation by proceeding against a surety only in terms
of Section 31 of the Act and not under Section 29 thereof."
This Court therein has also taken into consideration the interpretative process required to
be undertaken for construing the Act keeping in view the fact that right to property is also
a human right.
The High Court, in our opinion, committed a serious illegality insofar as it failed to take
into consideration the limited scope and effect of Section 29 of the Act. It wrongly
proceeded on the basis as if the contention of the appellants stood covered by the earlier
round of litigation. Interpretation of Section 29 of the Act did not fall for consideration in
the earlier writ petition.
14. We, therefore, are of the opinion that the right to sell the property by the Corporation
must be exercised only in respect of the mortgaged property and not the one which is not
the subject matter thereof.
15. Keeping in view the fact that the extent of property mortgaged has been described in
the deed of mortgage, it will be open to the respondents herein to get the area of the said
property duly demarcated.
16. In the event, the sale is complete, the auction purchaser may be handed over only so
much property which was the subject matter of mortgage. This, however, would not mean
that for realization of the balance amount, if any, the respondents would be without any
remedy. They will be entitled to take recourse to such remedies for realization of their
balance due to which they are otherwise entitled to in law.
17. The appeal is allowed to the aforementioned extent with costs. Counsel's fee assessed
at Rs. 25,000/-.
Appeal allowed.
AIR 2008 SUPREME COURT 2180 "Naresh Kavarchand Khatri v. State of Gujarat"
(From : Gujarat)
Criminal Appeal Nos. 839 with 840 of 2008 (arising out of SLP (Cri) No. 1944 with 2258
of 2007), D/- 8 -5 -2008.
Naresh Kavarchand Khatri v. State of Gujarat and Anr.
Criminal P.C. (2 of 1974), S.164, S.482 - INVESTIGATION - INHERENT POWERS -
SPECIAL LEAVE APPEAL - Investigation - Transfer from one police station to other -
Within power of statutory authority - Courts have limited power to interfere - Complaint
filed in police station having jurisdiction to investigate - Transfer by High Court at initial
stage and with undue haste - Order liable to be set aside - Fact that charge sheet is
submitted no ground to refuse interference under Art.136 of Constitution.
Crl. Appln. No. 2272 of 2006, D/-28-12-2006 (Guj), Reversed. (Paras 9, 10, 11)
2007 AIR SCW 3492 : AIR 2007 SC 1925 ; 2007 Cri LJ 3181 (Rel. on) 7
I.H. Sayed and Varinder Kumar Sharma, for Appellant; Soli J. Sorabjee, Sr. Advocate,
Ms. Hemantika Wahi, V. Madhukar, Ms. Sangeeta Singh, Huzefa Ahmadi, Ejaz Maqbool,
Mitul Shelat, Vikash Singh and Pardhuman Gohil, with him for Respondents.
@page-SC2181
Judgement
2. Whether the High Court has the requisite jurisdiction to transfer an investigation from
one Police Station to another is the core question involved in these two appeals which
arise out of judgment and order dated 28-12-2006 in Special Criminal Appeal Nos.2272
and 2271 of 2006.
3. Appellant lodged a First Information Report before the detective Crime Branch, Police
Station, Vadodara City under Sections 406, 420 and 120B of the Indian Penal Code
against the respondents. According to the appellants, the respondent had assured that the
child of the first informants would be admitted in their institution and on that pretext,
collected a huge amount from them. The children of the first informant took admission
after depositing the admission fee and miscellaneous charges etc. However, their
admission was later on cancelled.
4. The FIR was lodged on 23-12-2006. Vadadora Police initiated the investigation.
Applications for transfer of investigation were filed before the High Court. On 28-12-
2006, the High Court passed the impugned order in the following terms :
"Rule. Mr.P.D. Bhate Ld. APP waive service on behalf of opponent State. At the joint
request of the parties the matter is taken up for final hearing today.
By way of these petitions the petitioner has prayed to transfer the Investigation of
complaint being ICR No.89 of 2006 and 90/ 2006 registered with DCB Police Station,
Vadodara city to another police station having territorial jurisdiction or to CID Crime or
any other independent agency.
Heard the Ld. Counsel for the parties Ld.APA has stated that respondent State has no
objection if the complaint in question is transferred to some authority as prayed for.
In that view of the matter Complaint No.ICR 89 of 2006 and 90 of 2006 registered with
DCB Police Station, Vadodara city are ordered to be transferred to another police station
within whose jurisdiction the institution is situated. With the said direction, the petition
stand disposed of. Rule is made absolute."
5. The informant was not impleaded as a party therein. No notice was issued on the said
appeals. No reason has been assigned. The Court did not advert to the question as to
whether it had any jurisdiction to pass the said order. Why such a concession was made
by the learned APP on the very first day of hearing is not known.
The power of the court to interfere with an investigation is limited. The police authorities,
in terms of Section 156 of the Code of Criminal Procedure, exercise a statutory power.
The Code of Criminal Procedure has conferred power on the statutory authorities to
direct transfer of an investigation from one Police Station to another in the event it is
found that they do not have any jurisdiction in the matter. The Court should not interfere
in the matter at an initial stage in regard thereto. If it is found that the investigation has
been conducted by an Investigating Officer who did not have any territorial jurisdiction in
the matter, the same should be transferred by him to the police station having the
requisite jurisdiction.
6. It is of some significance that the High Court exercised its jurisdiction even without
notice to the petitioner. The investigation has to be carried out on the basis of the
allegations made. The first informant is required to be examined; statements of his
witnesses were required to be taken; the accused were also required to be interrogated.
The undue haste with which the High Court has exercised its jurisdiction, in our opinion,
should not be encouraged. Whether an officer incharge of a police station has the
requisite jurisdiction to make investigation or not will depend upon a large number of
factors including those contained in Sections 177, 178 and 181 of the Code of Criminal
Procedure. In a case where a trial can be held in any of the places falling within the
purview of the aforementioned provisions, investigation can be conducted by the
concerned officer in-charge of the police station which has jurisdiction to investigate in
relation thereto. Sub-section (4) of Section 181 of the Code of Criminal Procedure would
also be relevant therefor.
We need not dilate more on analyses of the aforementioned provisions as the said
question has been gone into by this Court on more than one occasion.
In Satvinder Kaur vs. State (Govt. of NCT of Delhi) : 1999 (8) SCC 728 this Court
noticing various provisions of the Code of Criminal Procedure opined : 1999 AIR
SCW 3607
@page-SC2182
"12. A reading of the aforesaid sections would make it clear that Section 177 provides for
"ordinary" place of enquiry or trial. Section 178, inter alia, provides for place of enquiry
or trial when it is uncertain in which of several local areas an offence was committed or
where the offence was committed partly in one local area and partly in another and where
it consisted of several acts done in different local areas, it could be enquired into or tried
by a court having jurisdiction over any of such local areas. Hence, at the stage of
investigation, it cannot be held that the SHO does not have territorial jurisdiction to
investigate the crime."
It was furthermore held :
"15. Hence, in the present case, the High Court committed a grave error in accepting the
contention of the respondent that the investigating officer had no jurisdiction to
investigate the matters on the alleged ground that no part of the offence was committed
within the territorial jurisdiction of the police station at Delhi. The appreciation of the
evidence is the function of the courts when seized of the matter. At the stage of
investigation, the material collected by an investigating officer cannot be judicially
scrutinized for arriving at a conclusion that the police station officer of a particular police
station would not have territorial jurisdiction. In any case, it has to be stated that in view
of Section 178(c) of the Criminal Procedure Code, when it is uncertain in which of the
several local areas an offence was committed, or where it consists of several acts done in
different local areas, the said offence can be enquired into or tried by a court having
jurisdiction over any of such local areas. Therefore, to say at the stage of investigation
that the SHO, Police Station Paschim Vihar, New Delhi was not having territorial
jurisdiction, is on the face of it, illegal and erroneous. That apart, Section 156(2) contains
an embargo that no proceeding of a police officer shall be challenged on the ground that
he has no territorial power to investigate. The High Court has completely overlooked the
said embargo when it entertained the petition of Respondent 2 on the ground of want of
territorial jurisdiction."
7
. Yet again in Asit Bhattacharjee vs. Hanuman Prasad Ojha : (2007) 5 SCC 786 this Court
clearly held :- 2007 AIR SCW 3492
"32. No such explicit prayer was made by the respondents in their writ petition, although
a prayer for issuance of a writ in the nature of mandamus, directing the State of West
Bengal to transfer Case No. 381 to the State of U.P., had been made. The question of the
State of West Bengal's having a legal duty in that behalf did not arise. Only in the event
an investigating officer, having regard to the provisions contained in Sections 154, 162,
177 and 178 of the Code of Criminal Procedure had arrived at a finding that the alleged
crime was not committed within his territorial jurisdiction, could forward the first
information report to the police having jurisdiction in the matter.
33. Stricto sensu, therefore, the High Court should not have issued such a direction.
Assuming, however, that the High Court could mould the relief, in our opinion, it was not
a case where on the face of the allegations made in the complaint petition, the same could
be said to be mala fide. A major part of the cause of action might have arisen in the State
of U.P., but the same by itself would not mean that the Calcutta Court had no jurisdiction
whatsoever."
8. Mr. Sorabjee, learned Senior Counsel and Mr. Huzefa Ahmed, appearing for the
respondent No. 2 in each of the appeals, however, brought to our notice that charge-sheet
has already been submitted. It was contended that proper investigation has been carried
out in the matter and even the accused respondent had been taken into custody and, thus,
this Court, in a situation of this nature, should not exercise its jurisdiction under Article
136 of the Constitution of India.
9. Investigation has been carried out by the officer incharge of Police Station Waghodia
only pursuant to the order of the High Court. If the order of the High Court is to be set
aside, the investigation must be held to have been carried out without any jurisdiction. We
are not, herein concerned with the quality of the investigation but the effect of the order
passed by the High Court. We do not know as to whether proper investigation as
contended, has in fact been considered at by the court or not.
10. The first information report was lodged on 23rd December, 2006. The High Court
appears to have been approached within a few days, namely 26th December, 2008.
The impugned order has been passed on 28th December, 2008. The first information
@page-SC2183
report prima facie shows that a part of cause of jurisdiction arose within the territorial
jurisdiction of Vadodara Police Station. We fail to understand as to how at such an early
stage, the investigation should have been directed to be transferred, having regard to the
fact that Waghodia Police Station where the 'institution' in question is situated is within
the jurisdiction of Vadodara (District) and is, therefore, not a case where the accused
would have been even otherwise gravely prejudiced in joining investigation.
11. We, therefore, are of the opinion that it is not a case where we should refuse to
exercise jurisdiction under Article 136 of the Constitution of India. We, therefore, set
aside the impugned orders. Consequently, the charge sheets filed by the Wagodhia Police
Station stand set aside. The concerned Police Officer of Vadodara Police Station would
initiate appropriate investigation in the matter in accordance with law.
Any document collected as also the statements of any witnesses recorded by the officer
in-charge of Waghodia Police Station, however, may be sent to the incharge of Vadodara
Police Station.
12. The appeals are allowed with the aforementioned observations and directions.
Appeals allowed.
AIR 2008 SUPREME COURT 2183 "Ila Vipan Pandya v. Smita Ambalal Patel"
(From : 2005 (4) Bom CR 605)
Ila Vipan Pandya v. Smita Ambalal Patel and Anr.
(A) Civil P.C. (5 of 1908), S.129 - Bombay High Court (Original Side) Rules (1980),
Chap.19, R.267 - HIGH COURT - PERJURY - Application for certified copy -
Respondent though caveator in beginning had become party to suit - Certainly interested
person in suit - Entitled to certified copy of miscellaneous application emanated out of
said suit, containing allegations of perjury against her adversary, the appellant - Even
though respondent was not party to said Miscellaneous Application - Further by mere
grant of certified copies respondent would not be entitled to participate in perjury
application - It was for the Court to decide issue as to whether respondent can join said
proceedings. (Paras 13, 14)
(B) Constitution of India, Art.137, Art.141 - SUPREME COURT - PRECEDENT -
REVIEW - Review - Judgment of co-ordinate Bench - Cannot be reviewed. (Para
17)
2007 AIR SCW 4274 : AIR 2007 SC 2404 : 2007 (4) AIR Bom R 821 (Ref.) 6, 10,
16, 17
2002 AIR SCW 125 : AIR 2002 SC 548 (Ref.) 16
2001 AIR SCW 50 : AIR 2001 SC 457 (Ref.) 16
1997 AIR SCW 4318 : AIR 1998 SC 337 (Ref.) 16
1995 AIR SCW 2815 : AIR 1995 SC 1795 (Ref.) 16
AIR 1979 SC 964 : 1979 Cri LJ 841 (Ref.) 16
AIR 1978 SC 597 (Ref.) 16
AIR 1975 SC 43 16
AIR 1974 SC 2009 (Ref.) 16
R.F. Nariman, Sr. Advocate, Mahesh Agarwal, Rishi Agarwal, E.C. Agrawala, Amit
Kumar Sharma and Gaurav Goel, for Appellant; Smita Ambalal, respondent-in-person;
Ms. B. Vijayalakshmi Menon, for Respondent 2.
Judgement
V. S. SIRPURKAR, J. :- The order passed by the Division Bench in an appeal against the
order passed by the learned Single Judge of that Court is in question before us in this
appeal. Respondent No.1 (Smita Ambalal Patel) had taken out the Chamber Summons in
Testamentary Suit No. 17 of 1996. By that summons she sought for the certified copies of
Miscellaneous Application No. 1 of 2004 in the Testamentary Suit as also the transcript of
tape-recorded conversation between the appellant herein (Smt.Ila Pandya) and the
respondent No.2 (Ms.Fereshte Sethna). The appellant had filed a Testamentary Petition
No. 132 of 1996 before the Bombay High Court for issuance of Letters of Administration
in respect of the estate of her late husband, namely, Shri Vipin Dalsukram Pandya. In this
suit the present respondent No. 1 (Smita Ambalal Patel) had filed a caveat. Eventually the
Testamentary Petition came to be converted into Testamentary Suit. Ila Pandya was being
represented by respondent No.2 Ms.Fereshte Sethna in that suit. However, it seems that
the appellant sought for discharge of her
@page-SC2184
counsel in the case. This was objected to by the respondent No.2 who opposed the prayer
of discharge. The appellant, therefore, had preferred a Chamber Order before the
Prothonotary and Senior Master, High Court of Bombay and eventually the respondent
No.2 was discharged by the order passed by the Additional Prothonotary and Senior
Master dated 23-2-2004. In these proceedings respondent No.2 filed Miscellaneous
Application No. 1 of 2004 alleging therein that the appellant Ila Pandya had committed
perjury and that an action should be taken against her. This was probably done as some
allegations were made by the appellant against her erstwhile counsel, respondent No.2.
The respondent No.2 in this application had also tendered two audio cassettes in support
of her Miscellaneous Application No. 1 of 2004.
2. The request made by the present respondent Smita Ambalal Patel in the Chamber
Summons was resisted both by the appellant as well as the second respondent.
3. It seems that on 25th March, 2004 the High Court passed an order directing that the
copies of the papers and proceedings in Miscellaneous Application No. 1 of 2004 should
be furnished only to the appellant and the respondent No.2. The respondent No. 1 raised
an objection to this by filing an application for speaking to the Minutes dated 5th May,
2004 which application was rejected by the High Court.
4. Even a praecipe was moved by Prothonotary and Senior Master before Justice S.K.
Shah on 7-6-2004 due to numerous applications preferred by the respondent No. 1 for
inspection of documents pertaining to Miscellaneous Application No. 1 of 2004 but the
learned Single Judge declined to pass orders on this praecipe. It is, however, an admitted
matter that even before that the respondent No. 1 had already carried out the inspection of
the Miscellaneous Application No. 1 of 2004.
5. It was on this background that the Chamber Summon was taken out by the respondent
No. 1 seeking the certified copy of Miscellaneous Application No. 1 of 2004 in
Testamentary Suit No. 17 of 2006 and also for a direction to furnish to the respondent No.
1 the transcript of the two audio cassettes in respect of tape recorded conversation held on
Saturday, February 7, 2004 between Ila Pandya, the appellant herein and Ms. Fereshte
Sethna, the respondent No.2 herein.
6
. In her application, the respondent No. 1 submitted that she had required the
aforementioned documents for the purposes of producing in court particularly in this
Court where the Special Leave Petition filed against the order passed by the High Court
in Testamentary Suit No. 17 of 1996 was pending. Needless to mention that by this time
the Testamentary Suit No. 17 of 1996 was already disposed of and the Special Leave
Petition filed by the respondent No. 1 was pending in this Court. We may state at this
juncture that in the said Special Leave Petition leave was granted and the Civil Appeal
arising out of the said SLP being Civil Appeal No.2455 of 2005 was disposed of by this
Court dismissing the same by its judgment dated 17-5-2007. reported in 2007 AIR
SCW 4274
7. The learned Single Judge before whom the Chamber Summons was moved rejected the
same taking a view that Miscellaneous Application No. 1 of 2004 was between the
Advocate Ms. Fereshte Shethna and her client Smt.Ila Pandya and the respondent No. 1
himself was not even party to the same and as such she was totally unconcerned with the
Miscellaneous Application No. 1 of 2004. The learned Single Judge also found that even
earlier similar request made by the respondent No. 1 herein was rejected and as such it
was not necessary to accept her request for the supply of copies.
8. An appeal was filed before the Division Bench by the respondent No. 1. The appeal
was however, partly allowed, in that the Division Bench allowed her to have a copy of
the Miscellaneous Application No. 1 of 2004 while it declined her request in respect of
the transcript of the tape-recorded conversation in the audio cassettes. The Division
Bench took the view that the said Miscellaneous Application was a part of record of the
court in the Testamentary Suit where the respondent No. 1 was a party. The Court,
therefore, observed that when a party to the suit takes inspection and applies for a
certified copy of the record, it is a duty cast under Section 76 of the Evidence Act on the
court officer to make available the certified copies. According to the Division Bench this
was entirely a matter between the court and the applicant. The Division Bench did note
that the earlier application for certified copy was rejected but further took the view that
the learned Single Judge had not rejected the second application on
@page-SC2185
that ground alone but had also considered the merits of the case. According to the
Division Bench the respondent No.2 (appellant before the Division Bench) had
demonstrated her interest in the proceedings since her caveat was accepted and the court
on that basis had converted the proceedings in a regular suit. It was also noted that even
she had instituted the proceedings for administration of the estate of deceased Vipin
Pandya. The court, therefore, took the view that the litigation was with regard to
entitlement of the respondent No. 1 on one side and the appellant on the other.
9. It is the abovesaid judgment which has been challenged by way of present appeal. Shri
R.F. Nariman, Senior Advocate urges before us that the Division Bench was in error in
ordering the copy of the Miscellaneous Application No.1 of 2004 to be supplied to
respondent No. 1 particularly when the respondent No.1 had surreptitiously obtained the
inspection of the application even without notice to the present appellant or respondent
No.2. Learned counsel further submits that in view of the fact that Title Suit No. 17 of
1996 has already been, admittedly, disposed of under such circumstance that there will be
no question of the copy of the Miscellaneous Application made in that suit being supplied
to the respondent No.1. It is also pointed out by the learned counsel that the very idea of
obtaining copy of the Miscellaneous Application was only to harass the applicant which
was clear from her application for the certified copy. It is also pointed out that there was
no question of supplying the copy now more particularly because even the appeal against
the judgment in Title Suit No. 17 of 1996 is dismissed by this Court by a detailed
judgment. It is pointed out by the learned counsel further that the unfair advantage would
be conferred on the respondent No.1 and she would misuse the copy for harassing the
appellant herein.
10. As against this the respondent No. 1 who appeared in person vehemently urged that
she was being harassed and that she had every right to obtain the copies of the
Miscellaneous Application No.1 of 2004. During her marathon arguments she went on to
the extent of attributing motives to the Advocates of the other side. She also gave the
whole history of the litigation which had reached up to this Court earlier. In her written
submissions she mainly complains against the judgment of this Court passed in Civil
Appeal No.2455 of 2005. The whole arguments of the respondent were directed against
the said judgment.
11. On this backdrop it is to be seen as to whether the judgment passed by the Division
Bench can be sustained.
12. We must point out the relevant Rules of The Bombay High Court (Original Side)
Rules, 1980. Chapter XIX deals with searches and certified copies. Rule 267 is for search
and certified copies of the documents to a party to a suit or matter. The Rule runs as under
:
"267. Search and certified copies of documents to a party to suit or matter - The
Prothonotary and Senior Master shall, on the application of any party to a suit or matter,
allow search or grant certified copies of all papers and proceedings in suit or matter, on
payment of the prescribed fees and charges. When the party applies for a certified copy of
a document on record, the Prothonotary and Senior Master may, in his discretion grant
such copy."
Rule 268 deals with search and certified copies of the documents to a person not a party
to suit or matter. The Rule reads as under :
"Search and certified copies of documents to a person not a party to suit or matter. - The
Prothonotary and Senior Master may, on the application of a person not a party to a suit
or matter, on sufficient cause being shown, allow search or grant certified copies of such
papers and proceedings in the suit or matter as the Prothonotary and Senior Master may
think fit, on payment of the prescribed fee and charges. When such person applies for a
certified copy of a part of document on record, the Prothonotary and Senior Master may,
in his discretion, grant such copy."
Reading the above two Rules together, it appears that a clear distinction is made between
the parties to the suit or matter and persons who are not parties to the suit or matter.
Again the Rules clearly differentiate between a suit and the matter. While there is a clear
cut right in favour of the party to the suit to get the search and certified copies, there is a
discretion in Prothonotary and Senior Master whether to grant or not such search and/or
certified copy to a person who is not a party to the suit or matter.
13. The Division Bench has held and in
@page-SC2186
our opinion rightly, that the respondent No. 1 though caveator in the beginning had
become a party to the suit and was as such interested in the matter. It cannot be disputed
that the Miscellaneous Application No. 1 of 2004 was filed by the respondent No. 2
Fereshte Sethna against the appellant herein praying therein for the action to be instituted
against the appellant for perjury. The evidence by the appellant was given in the suit itself
and, therefore, the respondent No. 1 who was a contesting party against the appellant,
was certainly interested person since the allegations of perjury were made against her
adversary, the appellant herein. When the respondent No. 1 sought for the certified
copies, it was not necessary to decide the merits or the demerits of the Miscellaneous
Application No. 1 of 2004. If she had shown as to how she was interested in the
Miscellaneous Application and if such interest was tangible, then even if she was not a
party in the strict sense to the Miscellaneous Application No.1 of 2004, the Prothonotary
and Senior Master could have, in his discretion, granted the certified copies of the
Miscellaneous Application No.1 of 2004. Though a view was taken by the learned Single
Judge that she was not at all interested and she could not be interested, the Division
Bench has shown as to how she would be interested in the Miscellaneous Application No.
1 of 2004. Therefore, even if it is held that she was not a party to the matter, i.e.,
Miscellaneous Application No. 1 of 2004, since she was a party to the suit out of which
the Miscellaneous Application No. 1 of 2004 emanated and as such the same could be
treated as record of that suit, the Division Bench, in our opinion, was right in taking the
view that she was entitled to the certified copies.
14. Shri Nariman, learned Senior Counsel, however, suggested that the only idea of
having those copies was to harass and/or to misuse those copies against the appellant and
it was only for that reason that the appellant was opposing the grant of certified copies of
the Miscellaneous Application No. 1 of 2004 to the respondent No. 1. We do not think
that there is any possibility of misuse. It has not been shown as to in what manner the
respondent No. 1 would be able to misuse the said documents. Shri Nariman, however,
expressed his apprehension that the respondent No. 1 would insist in joining the
proceedings which were to follow the Miscellaneous Application No.1 of 2004. He,
therefore, expressed that if the respondent is granted the certified copies, she would jump
into the fray in Miscellaneous Application No. 1 of 2004. The Division Bench has taken
care of that matter. In paragraph 9 of its order, the Division Bench has expressed and in
our opinion, very rightly that by mere grant of certified copies, it cannot be construed that
respondent No. 1 has a right to participate in the perjury application. The Division Bench
has already directed that the said application should be heard along with the main suit.
The Division Bench has also very rightly expressed that ultimately it would be for the
learned Judge to decide the issue as to whether respondent No. 1 can join the
proceedings. That question had been left open. Again the Division Bench has clarified
that the issue regarding the evidentiary value of papers and documents in the perjury
proceedings was kept to be agitated by both sides. At this juncture, however, the main
suit itself stands decided and the parties before us did not point out anything about
Miscellaneous Application No. 1 of 2004 nor was it pointed out as to whether it was still
pending or not. But even if it is presumed that it is still pending, we make it clear that
mere grant of certified copies in favour of the respondent No. 1 itself would not entitle
her to take part in the proceedings and confirm the action of the Division Bench of
keeping that question open. As far as the misuse is concerned, we only have to observe
that in case of its misuse, the court below would be fully free to deal with such complaint
if made to it.
15. Since the respondent No.1 has not challenged the findings and the order regarding the
audio cassettes, it is not necessary for us to consider that aspect.
16. Lastly we must note that in her marathon arguments, the respondent No. 1 spent every
ounce of her energy in pointing out to us that as to how the judgment of this Court in
Civil Appeal No.2455 of 2005 was wrong and how she was wronged against. In support
of her contentions she has relied upon the following decisions of this Court:
i) Maganlal Chhaganlal (P) Ltd. v. Municipal Corporation of Greater Bombay and Others
[(1974) 2 SCC 402]; AIR 1974 SC 4274
ii) Mrs. Maneka Gandhi v. Union of India and Ann [(1978) 1 SCC 248]; AIR 1978 SC
597
@page-SC2187
iii) Bishnu Deo Shaw v. State of West Bengal [(1979) 3 SCC 714]; AIR 1979 SC 964
iv) D.P. Chahda v. Triyugi Narain Mishra and Others [AIR 2001 SC 457]; 2001 AIR
SCW 50
v) Harish Chandra Tiwari v. Baiju [AIR 2002 SC 548]; 2002 AIR SCW 125
vi) Shri Umed v. Raj Singh and Ors. [(1975) 1 SCC 76]; AIR 1975 SC 43
vii) Dhananjay Sharma v. State of Haryana [AIR 1995 SC 1795]; 1995 AIR SCW 2815
viii) Ashwani Kumar Sharma v. Yaduvansh Singh and Ors. [AIR 1998 SC 337]. 1997
AIR SCW 4318
17. We have carefully seen all these cases. The cases at Serial Nos. (iv), (v) and (vii)
pertain to Advocates misconduct. That is not the subject of the litigation. We cannot
accept any contention raised by the respondent against the judgment of this Court in Civil
Appeal No. 2455 of 2005 which judgment is by a Coordinate Bench. We must at this
juncture point out again even at the cost of repetition that the said judgment authored by
Bedi, J. cannot be and will not be reviewed by us particularly in the present proceedings.
At any rate, none of the judgments mentioned above are apposite to the present
controversy which we have dealt with in the earlier paragraphs of this judgment. We,
therefore, reject the contention by the respondent that we should look into the judgment
in Civil Appeal No. 2455 of 2005 and review the same.
18. In the above backdrop we do not see any merits in the appeal and dismiss the same
with costs quantified at Rs.10,000/-.
Appeal dismissed.
AIR 2008 SUPREME COURT 2187 "Dadu Dayalu Mahasabha, Jaipur (Trust) v. Mahant
Ram Niwas"
(From : 2007 (3) Pun LR 215)
Civil Appeal No.3495 of 2008 (arising out of SLP (C) No. 10317 of 2007) with Contempt
Petn. (C) No. 120 of 2007), D/- 12 -5 -2008.
Dadu Dayalu Mahasabha, Jaipur (Trust) v. Mahant Ram Niwas and Anr.
(A) Civil P.C. (5 of 1908), S.11; O.2, R.2 - RES JUDICATA - CIVIL PROCEDURE -
POSSESSION - INJUNCTION - Res judicata - Applicability - Impact of observations
made by S.C. - Suit for permanent injunction based on legal entitlement to 'Gaddi' of
Math - Dismissal upheld by S.C. - Observations that plaintiff may file suit for possession
- Would not prevent Court from dismissing suit for possession as barred by res judicata.
2007 (3) Pun LR 215. Reversed.
The judgment of a Court, it is trite, should not be interpreted as a statute. The meaning of
the words used in a judgment must be found out on the backdrop of the act of each case.
The Court while passing a judgment cannot take away the right of the successful party
indirectly which it cannot do directly. An observation made by a superior Court is not
binding. What would be binding is the ratio of the decision. Such a decision must be
arrived at upon entering into the merit of the issues involved in the case. (Para 19)
In the instant case a dispute arose about succession and management of 'Gaddi' of Math.
The plaintiff filed a suit for permanent injunction on basis of his legal entitlement to
succeed to Gaddi. The suit was dismissed by the trial Court and First Appellate Court on
finding that plaintiff was not in possession on date of suit. The concurrent finding was
reversed by the High Court on basis of writing made in register by Bhaik showing that
the plaintiff was appointed as Mahant by Bhaik in accordance with prevailing custom. On
appeal the Supreme Court reversed the judgment of High Court upholding the findings
given by Trial and First Appellate Courts. The relief of permanent injunction was refused.
Observation was however, made that the plaintiff may file a suit for possession if he is so
advised. The plaintiff filed a suit for possession. The question was whether res judicata
would apply to such suit in view of the S. C. observations in earlier suit.
Held, the ratio of a decision is binding and not an observation. The plaintiff's claim on
basis of his legal entitlement was rejected by S. C. in earlier suit. The issue indisputably
was the claim of entitlement to Gaddi by the plaintiff and a plea contra thereto raised by
the appellants/defendant. Once the issue of entitlement stood determined, the same would
operate as res judicata. The suit for possession was barred by res judicata as also
provisions of O. 2, R. 2. (Paras 16, 17, 20, 28, 35)
@page-SC2188
Furthermore in terms of Section 5 of the Specific Relief Act, 1963 a suit for possession
must be filed having regard to the provisions of the Code of Civil Procedure. If the statute
provides for the applicability of the Code of Civil Procedure, there cannot be any doubt
whatsoever, that all the relevant provisions thereof shall apply. 2007 (3) Pun LR 215,
Reversed. (Para 34)
(B) Constitution of India, Art.141 - PRECEDENT - SUPREME COURT - Precedent -
Observations made by S.C. - Not binding. (Para 19)
2007 AIR SCW 3456 (Ref.) 34
2007 AIR SCW 6384 : AIR 2008 SC 171 (Ref.) 26
2005 AIR SCW 270 : AIR 2005 SC 626 (Ref.) 31
2005 AIR SCW 3516 : AIR 2005 SC 4004 (Ref.) 32
(2004) 8 SCC 569 (Ref.) 34
(1999) 5 SCC 590 (Ref.) 30
1993 AIR SCW 3792 : AIR 1994 SC 152 (Ref.) 33
(1991) 2 AC 93 : (1991) 3 All ER 41 (HL) 30
AIR 1977 SC 1680 : 1977 Lab IC 911 (Ref.) 29
AIR 1966 SC 1332 (Ref.) 28
AIR 1965 SC 1150 29
AIR 1965 SC 1153 29
(1964) 1 All ER 341 31
(1939) 2 KB 426 29
AIR 1925 PC 55 25
(1869) 13 MIA 1 24
Rajiv Dhawan, Sr. Advocate, Sushil Kr. Jain, Puneet Jain, Ms. Archana Tiwari, H. D.
Thanvi (for Ms. Pratibha Jain), with him for Appellant; Rajiv Datta, Sr. Advocate, Somvir
Singh Deswal, Shree Pal Singh and B.K. Satija, with him for Respondents.
Judgement
2. Applicability of the principles of res judicata and Order II Rule 2 of the Code of Civil
Procedure having regard to an observation made by this Court, is involved in this appeal,
which arises out of a judgment and order dated 8th May, 2007 passed by a learned single
Judge of the Punjab and Haryana High Court in Regular Second Appeal No. 4070 of
2005.
3. Appellant herein is a Public Trust registered under the provisions of the Rajasthan
Public Trust Act 1959 and governed by the provisions thereof. Acquisition of a Gaddi and
the management thereof was the subject-matter of a suit.
Mahant Mani Ram Swami, admittedly was the holder of the said Gaddi.
First respondent claimed himself to be the 'Pota Chela' of the said Mahant Mani Ram
Swami.
4. Disputes and differences between the parties having arisen as regards succession and
management of the Gaddi, first respondent filed a suit in the Court of Senior Sub Judge,
Rohtak. It was registered as Suit No. 295/2 of 1964. Another suit was filed by Mahant
Mani Ram Sadhu Dadu Panthi which was marked as Suit No. 46 of 1967. The said suits
were filed for grant of permanent injunction.
5. Appellant has claimed its entitlement to the management of the said Gaddi under a Will
purported to have been executed by Mahant Mani Ram Swami. The main controversy
between the parties, therefore, was which party was entitled to manage the Gaddi at
Kalanaur of the said Trust. The matters relating to management of another Gaddi situated
at another place, i.e., Makhora, however, is not in dispute.
6. The learned trial Judge, having regard to the pleadings of the parties inter alia, framed
the following issues :-
"1. Whether the plaintiff is the Chela of Lahar Dass and Pota Chela of Mahant Mani
Ram?
2. Whether the plaintiff is entitled to succeed to Mahant Nitya Nand according to the
custom and law as application to the succession of Nitya Nand as Mahant and owner of
property?
3. Whether Nitya Nand made a valid Will in favour of defendant No. 1? If so, to what
effect?
4. Whether the suit lies in he present form?"
An additional issue was framed, after the defendant Nos. 3 and 4 were impleaded as
parties in the suit, which reads :-
"5-A. Whether defendant No. 3 or defendant No. 4 was the Chela of the late Mahant
Mani Ram and is now the present Mahant of the institution?
7. The principal issues were decided against the first respondent. The suit was dismissed
holdings that he was not entitled to hold or manage the Gaddi in question.
An appeal prefered thereagainst, being
@page-SC2189
Civil Appeal No. 89/13 of 1973, was dismissed by the Additional District Judge, Rohtak
by his orders dated 2nd January, 1973, holding :-
"Nevertheless, there is sufficient evidence to show that Nitaya Nand and Mahant Lahar
Dass were the Chelas of Mahant Mani Ram and this appellant is the Chela of Lahar Dass.
Mahant Mani Ram used to be the Dohli Dar of certain agricultural lands and after his
death the mutation entry Ex. P. 13/ 6 was sanctioned by the revenue authorities on 16-7-
1958. Lahar Dass had predeceased Mahant Mani Ram."
It was furthermore held :-
"Therefore, my finding also is that the appellant has failed in proving that he was
appointed as the Mahant of Gaddi by the Bhaik in accordance with the prevailing custom
and practice. Even the writing in the Bahi showing payments of certain moneys to the
members of the at by the Bhaik by the appellant has been withheld."
It was furthermore held :-
"In that connection it is found that the appellant is the Chela of Lahar Dass and that Lahar
Dass and Mahant Nitaya Nand were Gurbhai (Chelas of the said Mani Ram). But, that
does not come to the aid of the appellant for the reason that he has failed to prove that he
was appointed as the Mahant by the Bhaik in accordance with the prevailing custom.
In the connection of issue No. 3 it is found that although Mahant Nitaya Nand did
execute this Will, which has been attested by two witnesses in a sound disposing mind he
was not competent to execute such a Will because his interest in the properties was
limited by the period of tenure of the office of Mahant of the Gaddi."
However, the finding of the trial Court on issue No. 4 was reversed.
8. A second appeal was preferred there against before the High Court which was
registered as Regular Second Appeal No. 800 of 1973. The High Court allowed the
purported register of the 'Bhaik' to be produced as additional evidence. It entered into the
merit of the matter and held as under :-
"The oral evidence produced by the plaintiff to prove this fact in the trial Court, was
discussed by the lower Appellate Court as well, but as observed earlier, the lower
Appellate Court did not believe those witnesses because all of them had stated that such a
writing was made in the register when the plaintiff was appointed as Mahant and that
writing was attested by some of the members of the Bhaik, yet the same was not
produced in the trial Court. Thus their testimony was never disbelieved as such. Because
of the non-production of the writing Exhibit PW 14/A the finding was given against the
plaintiff by the two Courts below. Since this Court allowed the additional evidence to be
produced in this Court and the said writing has been duly proved, the findings of the
Courts below under issue No. 1 are liable to be set aside."
9. The matter came up before this Court by way of Civil Appeal No. 299 of 1987 (arising
out of SLP (C) No. 7600 of 1983) and by a judgment and order dated 2nd February, 1987
a Division Bench of this Court allowed the said appeal stating :-
"Special leave granted. The appeal is heard.
Since the High Court has not and could not have in the circumstances of the case reversed
the finding of the trial Court and the First Appellate Court that the plaintiff was not in
possession of the suit property on the date of the filing of suit, it could not have reversed
the decree passed by the First Appellate Court and made a decree for injunction for which
suit has been brought. We, therefore, set aside the judgment and decree of the High Court
and restore the judgment and decree of the First Appellate Court. This judgment will not
come in the way of the plaintiff/respondent filing a suit for possession, if he is so
advised."
10. Relying on or on the basis of the said observation mae by this Court, the second
round of litigation began.
11. In the fresh suit, the first respondent also impleaded 'Gaddi Dadu Dawara Kalanur'
through himself as the second plaintiff. Appellants were arrayed as defendants. In the said
suit a decree for possession of the properties mentioned in paragraph 5 of the plaint
(consisting of 15 items of properties) was prayed for.
12. The learned trial Judge by his judgment and order dated 11th February, 2003 opined
that the said suit was barred by the principles of res judicata, the issues arising therein
being directly and substantially in issue between the parties in the previous suit as well. It
dealt with in details as to
@page-SC2190
how the causes of actions in both the suits were the same.
Respondents preferred an appeal thereagainst. The first appellate Court, however, by its
Judgment and order dated 27th November, 2005 reversed the Judgment and decree of the
trial Court holding that neither the principles of res judicata nor Order II Rule 2 of the
Code of Civil Procedure were applicable in view of the observations made by this Court
in the aforementioned order of this Court dated 2nd February, 1987.
13. An appeal was prefered thereagainst by the appellants.
The High Court by reason of the impugned judgment has allowed the said appeal holding
:-
"Admittedly, the previous suit was suit for injunction. In the said suit finding was
returned by the trial Court that the plaintiff has failed to prove the ownership and
possession and, thus, the suit for injunction was dismissed. Such finding was affirmed in
appeal as well. This Court in second appeal reversed the findings recorded by the learned
first Appellate Court after admitting additional evidence and held that the plaintiff is in
possession of the suit property. In the said circumstance, above said order of Hon'ble
Supreme Court was passed whereby judgment and decree passed by the High Court was
set aside and liberty was given to the plaintiff to file a suit for possession.
A perusal of order passed by the Hon'ble Supreme Court shows that the finding that
plaintiff was not in possession in suit for injunction recorded by this Court was set aside
and, therefore, it was clarified that the judgment of the Court will not come in the way of
the plaintiff to file a suit for possession. Meaning thereby in a suit for possession, the
plaintiff could establish his title. The order of Hon'ble Supreme Court has to be read in its
entirety. Once it is ordered that the judgment will not come in the way for suit for
possession, the suit for possession could not be dismissed on the basis of previous
judgment in a suit for injunction."
14. Dr. Rajiv Dhawan, learned Senior Counsel appearing on behalf of the appellant in
support of the appeal submitted :-
i) Where the suit is barred under the principles of res judicata or Order II Rule 2 of the
Code of Civil Procedure, effect thereof cannot be taken away by a mere observation of
this Court.
2) In any event the principle of issue estoppel shall apply.
3) In any event the suit should have been held to be barred by limitation.
15. Mr. Rajiv Datta, learned Senior Counsel, appearing on behalf of the respondents, on
the other hand, urge :-
1) The scope of the earlier suits being confined to the question of possession as on the
date of Institution thereof, the subsequent suit claiming title over the Gaddi as also
recovery of possession was not barred under the principles of res judicata. or Order II
Rule 2 of the Code of Civil Procedure.
2) The entire issue between the parties as regards their legal rights having been left open,
the principle of res judicata could not have any application whatsoever particularly in
view of the fact the issues were totally different.
3) Since no issue with regard to res judicata had been framed by the learned trial Court,
any finding thereon was wholly unwarranted.
16. A suit is filed on a cause of action. What would constitute a cause of action is now
well settled. It would mean a bundle of facts which would be necessary to be proved by
the plaintiff so as to enable him to obtain a decree. First respondent's suit for possession
was premised on a legal entitlement. Appellant herein also claimed its right over the
Gaddi in question. The trial Court framed several issues. Its discussion centred round the
respective pleas of the parties which had fully been gone into.
The suit was dismissed. The first appellate Court not only went into the question of
possession of the first respondent over the Gaddi, as on the date of institution of the suit,
but the other questions.
17. Rightly or wrongly a decision was arrived at that the first respondent was held to be
not entitled to hold the Gaddi and management of the same. A legal right of the appellant
with regard thereto was found favour with the first appellate Court. On the
aforementioned backdrop the implication of the observations of this Court must be
noticed and considered.
18. The order of this Court is in four parts, i.e. -
i) The High Court could not have reversed the finding of the first appellate Court that
@page-SC2191
the plaintiff was not in possession of the suit property on the date of the filing of the suit,
ii) In view of the said finding a decree for injunction for which the suit was filed could
not have been granted.
iii) The Judgment and decree of the first appellate Court shall be restored after setting
aside the Judgment and decree of the High Court.
iv) The said judgment would not come in the way of the plaintiff/respondent in filing a
suit for possession, if he is so advised.
19. The judgment of a Court, it is trite, should not be interpreted as a statute. The
meaning of the words used in a judgment must be found out on the backdrop of the fact
of each case. The Court while passing a judgment cannot take away the right of the
successful party indirectly which it cannot do directly. An observation made by a superior
Court is not binding. What would be binding is the ratio of the decision. Such a decision
must be arrived at upon entering into the merit of the issues involved in the case.
20. If the judgment and order of the first appellate Court dated 2nd January, 1973 was
restored by this Court in its order dated 2nd February, 1987, the finding arrived at by it
attained finality. The issues determined therein would be, thus, binding on the parties.
21. Section 11 of the Code not only recognizes the general principle of res judicata, it
bars the jurisdiction of the Court in terms of Section 12 thereof.
Explanation V of Section 11 of the Code extends the principle of res judicata stating that
the reliefs which could have been or ought to have prayed for even if it was not prayed
for would operate as res judicata. Section 12 thereof bars filing of such suit at the
instance of a person who is found to be otherwise bound by the decision in the earlier
round of litigation and in a case where the principle of res judicata shall apply.
22. We, however, are not unmindful of the principles of estoppel, waiver and res judicata,
are procedural in nature and, thus, the same will have no application in a case where
judgment has been rendered wholly without jurisdiction or issues involve only pure
questions of law. Even in such cases, the principle of issue estoppel will have no role to
play.
However, once it is held that the issues which arise in the subsequent suit were directly
and substantially in issue in the earlier suit, indisputably Section 11 of the Code would
apply.
23. Similarly the provisions of Order II, Rule 2 bars the jurisdiction of the Court in
entertaining a second suit where the plaintiff could have but failed to claim the entire
relief in the first one. We need not go into the legal philosophy underlying the said
principle as we are concerned with the applicability thereof.
24. We must also bear in mind the distinction between the decision of a Court of law and
a Court of enquiry.
We may notice that even as far back as in 1869 in Robert Watson and Co. v. The
Collector, (1869) 13 MIA 1 it was held :-
"A decision of the late Sudder Court of the 31st of May, 1853, is a precedent in point, and
the marginal note appended to the case fully shows that a failure to adduce evidence is
not a default to proceed within the meaning of Act No. XXIX of 1841, which refers only
to steps in procedure necessary to enable a cause to be prepared for hearing on its merits;
the dismissal of a suit for want of evidence ought not to be on default, but on the merits.
This, then, was Clearly the state of the law in 1857, when the Judge of Rajshahe
dismissed the suit for want of evidence, and we cannot allow any words of the Judge to
override the law, and give to parties indulgencies which the law of procedure does not
sanction." "It cannot for a moment be argued that, as the law stood in 1857, a plaintiff
was at liberty to claim a non-suit if, after the issues were recorded, be neglected to supply
evidence in support of his case, and we are of opinion that the law and practice of the
Courts there was to act upon the maxim 'De non aparentibus et non existentibus eadum
est ratio' (a); and if evidence was wanting, to dismiss the claim for want of proof. Such
order is in reality a decision on the merits, just as much as if plaintiff had produced
evidence which the Court considered inadequate as proof, and dismissed it upon that
ground."
25. The Privy Council in Fateh Singh and others v. Jagannath Baksh Singh and another,
AIR 1925 PC 55 observed :-
"When the plaintiffs brought their first suit, they had to show their title to impeach
@page-SC2192
the widow's gift. For this purpose they had to show either that they were some at least of
the nearest reversionary heirs, or that the only nearer reversionary heir had colluded with
the widow. In their plaint they did not rely on collusion, which they only introduced in
their replication. Taking, however, that view of the pleadings which is most favourable to
them and treating them as relying equally on both grounds of claim, it is now clear that
they can only make out a claim to be some of the next reversioners on the footing of the
family custom, and that the allegation of that custom therefore was an allegation which
"might and ought to have been made" within the meaning of Explanation 4.
Or, to put it in another way. One of the alternative cases on which they were basing their
title to sue was their nearness of kin, and to prove their nearness of kin it was essential to
aver the family custom. They claimed as next heirs, and their claim was dismissed. They
cannot fight it over again.
But, as the Judges in the Court of the Judicial Commissioner have observed, some
complication was introduced by the language of the Judge who tried the first case and by
his expressing himself as if he had power to give leave to bring a fresh suit. It was
contended on behalf of the plaintiffs that in so expressing himself he was purporting to
exercise the powers given to the Court by Order 23, which allows the Court in certain
cases to grant the plaintiff permission to withdraw from a suit with liberty to issue fresh
suit, in which case the bar against a fresh suit which is otherwise imposed on a plaintiff
who abandons his first suit is removed."
It was furthermore observed :-
"...........There was no application for leave to withdraw the suit; nor was it withdrawn : it
was dismissed and the power of the learned Judge ceased upon this dismissal. It may
have been unfortunate for the plaintiffs that the learned Judge thought that he had a power
which he did not possess, but happily, as the Judges on the appeal observed, it is
improbable that there was substance in the claim which they have been prevented from
further prosecuting."
26
. The above observation of Privy Council came up for consideration before this Court in
Shiv Kumar Sharma v. Santosh Kumari, (2007) 8 SCC 600, when this Court observed :-
2007 AIR SCW 6384
"21. If the respondent intended to claim damages and/or mesne profit, in view of Order 2,
Rule 2 of the Code itself, he could have done so, but he chose not to do so. For one
reason or the other, he, therefore, had full knowledge about his right. Having omitted to
make any claim for damages, in our opinion, the plaintiff cannot be permited to get the
same indirectly.
22. Law in this behalf is absolutely clear. What cannot be done directly cannot be done
indirectly."
27. The question which was posed by the Privy Council was :-
"Be that, however, as it may, the first question is, whether the High Court was right in
holding that, notwithstanding the reservation contained in the decree dismissing the suit
of 1856, the question was to be treated as res judicata."
The Court noticed that at that point there was no authority which sanctioned the exercise
by the Country Courts of India of that power which Courts of Equity in that Country
occasionally exercise, of dismissing a suit with liberty to the plaintiff to bring a fresh suit
for the same matter.
28. Having noticed the effect of a stray observation made by a superior Court viz-a-viz
applicability of the principle of res judicata we may also notice the applicability of the
principle of issue estoppel.
In Sheodan Singh v. Daryao Kunwar, (1966) 4 SCR 300, this Court laid down the
ingredients of Section 11 of the Code of Civil Procedure stating :- AIR 1966 SC 1332
"9. A plain reading of Section 11 shows that to constitute a matter res judicata, the
following conditions must be satisfied, namely -
(i) The matter directly and substantially in issue in the subsequent suit or issue must be
the same matter which was directly and substantially in issue in the former suit;
(ii) The former suit must have been a suit between the same parties or between parties
under whom they or any of them claim;
(iii) The parties must have litigated under the same title in the former suit;
(iv) The Court which decided the former suit must be a Court competent to try the
subsequent suit or the suit in which such issue is subsequently raised; and
@page-SC2193
(v) The matter directly and substantially in issue in the subsequent suit must have been
heard and finally decided by the Court in the first suit. Further Explanation 1 shows that
it is not the date on which the suit is filed that matters but the date on which the suit is
decided, so that even if a suit was filed later, it will be a former suit if it has been decided
earlier. In order therefore that the decision in the earlier two appeals dismissed by the
High Court operates as res judicata it will have to be seen whether all the five conditions
mentioned above have been satisfied."
The question which is, thus, required to be posed is what was in issue in the earlier suit.
The issue indisputably was the claim of entitlement to Gaddi by the first respondent and a
plea contra thereto raised by the appellants. Once the issue of entitlement stood
determined, the same would operate as res judicata. We may notice some precedents for
appreciating the underlying principles thereof. Section 11 of the Code, thus, in view of
the issues involved in the earlier suit, the provisions thereof shall apply.
29
. In State of U. P. v. Nawab Hussain, (1977) 2 SCC 806 this Court held :- AIR 1977 SC
1680
"3. The principle of estoppel per rem judicatam is a rule of evidence. As has been stated
Marginson v. Blackburn Borough Council, it may be said to be "the broader rule of
evidence which prohibits the reassertion of a cause of action". This doctrine is based on
two theories : (i) the finality and conclusiveness of judicial decisions for the final
termination of disputes in the general interest of the community as a matter of public
policy, and (ii) the interest of the individual that he should be protected from
multiplication of litigation. It therefore serves not only a public but also a private purpose
by obstructing the reopening of matters which have once been adjudicated upon. It is thus
not permissible to obtain a second judgment for the same civil relief on the same cause of
action, for otherwise the spirit of contentiousness may give rise to conflicting judgments
of equal authority, lead to multiplicity of actions and bring the administration of Justice
into disrepute. It is the cause of action which gives rise to an action, and that is why it is
necessary for the courts to recognise that a cause of action which results in a judgment
must lose its identity and vitality and merge in the judgment when pronounced. It cannot
therefore survive the judgment, or give rise to another cause of action on the same facts.
This is what is known as the general principle of res judicata."
Noticing that the same set of facts may also give rise to two causes of actions, it was
held :- Para 7 of AIR
"That, in turn, led the High Court to the conclusion that the principle of constructive res
judicata could not be made applicable to a writ petition, and that was why it took the view
that it was competent for the plaintiff in this case to raise an additional plea in the suit
even though it was available to him in the writ petition which was filed by him earlier but
was not taken. As is obvious, the High Court went wrong in taking that view because the
law in regard to the applicability of the principle of constructive res judicata having been
clearly laid down in the decision in Devilal Modi case, it was not necessary to reiterate it
in Gulabchand case as it did not arise for consideration there. The clarificatory
observation of this Court in Gulabchand case was thus misunderstood by the High Court
in observing that the matter had been "left open" by this Court." AIR 1965 SC 1150
AIR 1965 SC 1153
30. Yet again in Home Plantations Ltd. v. Talaku Land Board, Peermada and another,
(1999) 5 SCC 590.
"An adjudication is conclusive and final not only as to the actual matter determined but as
to every other matter which the parties might and ought to have litigated and have had it
decided as incidental to or essentially connected with the subject-matter of the litigation
and every matter coming within the legitimate purview of the original action both in
respect of the matter of claim or defence. The principle underlying Explanation IV is that
where the parties have had an opportunity of controverting a matter that should be taken
to be the same thing as if the matter had been actually controverted and decided. It is true
that where a matter has been constructively in issue it cannot be said to have been
actually heard and decided. It could only be deemed to have been heard and decided. The
first reason, therefore, has absolutely no force."
It was furthermore opined :-
"26. It is settled law that the principles of
@page-SC2194
estoppel and res judicata are based on public policy and justice. Doctrine of res judicata is
often treated as a branch of the law of estoppel though these two doctrines differ in some
essential particulars. Rule of res judicata prevents the parties to a judicial determination
from litigating the same question over again even though the determination may even be
demonstratedly wrong. When the proceedings have attained finality, parties are bound by
the judgment and are estopped from questioning it. They cannot litigate again on the
same cause of action nor can they litigate any issue which was necessary for decision in
the earlier litigation. These two aspects are "cause of action estoppel" and "issue
estoppel." These two terms are of common law origin. Again, once an issue has been
finally determined, parties cannot subsequently in the same suit advance arguments or
adduce further evidence directed to showing that the issue was wrongly determined. Their
only remedy is to approach the higher forum if available. The determination of the issue
between the parties gives rise to, as noted above, an issue estoppel. It operates in any
subsequent proceedings in the same suit in which the issue had been determined. It also
operates in subsequent suits between the same parties in which the same issue arises.
Section 11 of the Code of Civil Procedure contains provisions of res judicata but these are
not exhaustive of the general doctrine of res judicata. Legal principles of estoppel and res
judicata are equally applicable in proceedings before administrative authorities as they
are based on public policy and justice."
This Court opined that the Law of England as enunciated by the House of Lords in
Arnold v. National Westminster Bank Plc. (1991) 2 AC 93 : (1991) 3 All ER 41, HL to
hold that the said principle will have no application in India stating :-
"30. Mr. Salve's assertions based on the aforesaid decision of the House of Lords may be
valid to an extent but then in view of the principles of law laid down by this Court on the
application of res judicata and estoppel and considering the provisions of S. 11 of the
Code, we do not think there is any scope to incorporate the exception to the rule of issue
estoppel as given in Arnold v. National Westminster Bank Plc.
31. Law on res judicata and estoppel is well understood in India and there are ample
authoritative pronouncements by various Courts on these subjects. As noted above, the
plea of res judicata, though technical, is based on public policy in order to put an end to
litigation. It is, however, different if an issue which had been decided in an earlier
litigation again arises for determination between the same parties in a suit based on a
fresh cause of action or where there is continuous cause of action. The parties then may
not be bound by the determination made earlier if in the meanwhile, law has changed or
has been interpreted differently by a higher forum. But that situation does not exist here.
Principles of constructive res judicata apply with full force. It is the subsequent stage of
the same proceedings. If we refer to O. XLVII of the Code (Explanation to Rule 1)
review is not permissible on the ground
"that the decision on a question of law on which the judgment of the Court is based has
been reversed or modified by the subsequent decision of a superior Court in any other
case, shall not be ground for the review of such judgment."
31
. Principle of issue estoppel and constructive res judicata had also been discussed at some
length by this Court in Bhanu Kumar Jain (supra) to hold :- 2005 AIR SCW 270
"29. There is a distinction between "issue estoppel" and "res judicata." (See Thoday v.
Thoday)
30. Res judicata debars a Court from exercising its jurisdiction to determine the lis if it
has attained finality between the parties whereas the doctrine issue estoppel is invoked
against the party. If such an issue is decided against him, he would be estopped from
raising the same in the latter proceeding. The doctrine of res judicata creates a different
kind of estoppel viz. estoppel by accord."
32
. Yet again in Annaimuthu Thevar (Dead) by LRs. v. V. Alagammal and others (2005) 6
SCC 202 a Division Bench of this Court held :- 2005 AIR SCW 3516
"27. The next question that arises is whether the issue of ownership and title in the suit
house was directly and substantially in issue in the former suit or not. In the subsequent
suit undoubtedly the foundation of claim is title acquired by the present appellant under
registered sale deed dated 28-2-1983 from Muthuswami."
@page-SC2195
33
. Even in a case of title, Explanation IV to S. 11 would apply. (See also Sulochana Amma
v. Narayanan Nair, 1994 (2) SCC 14). 1993 AIR SCW 3792
34
. Furthermore in terms of S. 5 of the Specific Relief Act, 1963 a suit for possession must
be filed having regard to the provisions of the Code of Civil Procedure. If the statute
provides for the applicability of the Code of Civil Procedure, there cannot be any doubt
whatsoever that all the relevant provisions thereof shall apply. (See Shamsu Suhara Beevi
v. O. Alex and another (2004)8 SCC 569 and Hardesh Ores (P) Ltd. v. Hede and
Company, 2007 (5) SCC 614). 2007 AIR SCW 3456
35. We have, therefore, no hesitation to hold that the impugned judgment cannot be
sustained. The same is set aside. The appeal is allowed with costs. Counsel's fee assessed
at Rs. 25,000/- (Rupees Twenty Five Thousand only).
36. We, however, do not find any specific ground to initiate contempt proceedings against
the respondent at this stage. Contempt petition is dismissed accordingly.
Appeal allowed.
AIR 2008 SUPREME COURT 2195 "Anil Kak v. Sharada Raje"
Civil Appeal Nos.2965 with 2974, 2975 and 2977 of 2008 (arising out of SLP (C) Nos.
2791 with 13865, 5831 and 9080 of 2006), D/- 24 -4 -2008.
Anil Kak v. Kumari Sharada Raje and Ors.
(A) Succession Act (39 of 1925), S.222, S.63, S.87, S.103 - SUCCESSION - PROBATE
- WILL - EXECUTION - Probate/Letters of Administration - Grant of - Will in question
is in two parts - Distribution of assets not specifically stated in Will - Were to be made as
per appendices annexed to Will - Appendices not in existence at time of execution of Will
- Will therefore not complete - Will surrounded by suspicions circumstances - Provisions
of S.87, S.103, not applicable - Refusal to grant probate/letters of administration - No
interference.
The Will, in the instant case is in two parts. Whereas the first part deals with the property
belonging to the husband of the testatrix, the second part deals with the properties which
purportedly belongs to her. Distribution of assets, however, was not specifically stated in
the Will. They were to be made as per the appendices annexed thereto. The appendices
which were required to be read as a part of the main Will so as to effectuate the intention
of the testatrix have not been proved. The Will by its own cannot be given effect to. The
Will must be read along with the appendices. No doubt in construing a Will armchair rule
is to be adopted. The Will was, therefore, not complete. The appendices were not in
existence at the time when the Will was executed. Existence of a document must mean
the actual existence. Furthermore, the Will is surrounded by suspicious circumstances.
Therefore refusal to grant probate/letters of administration was proper. Provisions of Ss.
87, 103 would not be applicable. (Paras 33, 35, 36, 38, 39, 42)
(B) Succession Act (39 of 1925), S.222 - SUCCESSION - PROBATE - WILL - Probate
of Will - Grant of Deprivation of due share to natural heir by itself may not be held to be
suspicious circumstances - But it is one of factors to be taken into consideration by
Courts before granting probate of Will. (Para 41)
(C) Succession Act (39 of 1925), S.87 - SUCCESSION - APPLICABILITY OF AN ACT
- WILL - Applicability - Will is in two parts - Direction for distribution of assets given in
appendices - Appendices found to be not in existence on date of execution of Will - Thus
intention of testatrix cannot be effectuated - Therefore, S.87 would not be applicable.
(Paras 33, 34, 35)
2008 AIR SCW 390 (Ref.) 30
2007 AIR SCW 3060 : AIR 2007 SC 2025 : 2007 (4) AIR Kar R 290 (Ref.) 39
2007 AIR SCW 3741 : AIR 2007 SC 1975 (Ref.) 41
2007 AIR SCW 4067 (Ref.) 34
2007 AIR SCW 6787 : AIR 2008 SC 300 : 2008 (1) AIR Jhar R 293 (Ref.) 41
2006 AIR SCW 6115 : AIR 2007 SC 311 : 2007 (1) AIR Kar R 572 (Ref.) 39, 41
2005 AIR SCW 605 : AIR 2005 SC 780 : 2005 AIR Kant HCR 443 (Ref.) 39
2002 AIR SCW 242 : AIR 2002 SC 637 (Ref.) 39
@page-SC2196
(1971) 1 Mad LJ 127 34

(1948) WN 324 34
(1944) P 109 : (1944) 2 All ER 397 31
(1902) P 238 31
(1895) P 66 31
1878 (3) AC 404 31
(1868) 38 LJP and M 1 31
(1866) LR 1 P and D 198 31
(1859) 1 SW and TR 508 31
(1858) 11 Moo PCC 427 31
(1844) 4 Moo PCC 339 31
16 LJ Ch 117 34
1 Hagg 75 2 Ib 249 37
3 Hagg 207 37
4 Hagg 192 37
4 Hagg 380 37
4 Hagg 410 37
1 Ib 661 37
23 Ad 354 37
4 Ves 197 37
Arun Jaitley, R.F. Nariman, Ms. Indu Malhotra, S.B. Upadhyay, Sr. Advocates, Ms.
Shashi M. Kapila, Ramesh Singh, Kunal Tandon, Arjun Suresh, Vikas Mehta, Sudhir
Nandrajog, Ms. Asha Gopalan Nair, Gaurav Agrawal, Ms. Bina Gupta, Ms. Kavita
Wadia, Shirmangal Sharma, Ms. Shubha Goyal, Ms. Sharmila Upadhyay, R.K. Rathore,
Kuldip Singh, for appearing parties.
* L.P.A. No. 238 of 2001 and M.C.C. No. 1097 of 2005, D/- 23-1-2006 (M.P.)
Judgement
2. These appeals are directed against a judgment and order dated 18-05-2001 passed by a
learned Single Judge of the Madhya Pradesh High Court at Indore dismissing two
applications for grant of probate/letters of administration with the copy of the annexed
Will in respect of the assets of Late Maharani Sharmishthabai Holkar (hereinafter called
as "the testatrix"), the widow of Late Maharaja Tukoji Rao Holkar, former ruler of the
erstwhile Holkar State.
3. Maharaja Tukoji Rao Holkar died on 21-05-1978 leaving behind four daughters,
Sharada Raje Holkar, Sita Raje Ghatge, Sumitra Raje Dalvi and Sushila Raje Holkar. He
had executed a Will on 27-11-1942 bequeathing all his properties in favour of the
testatrix. Indisputably, a letter of administration had been granted in favour of the
testatrix in respect of the Will dated 27-11-1942 made in her favour by her husband.
Apart from the properties inherited by the testatrix from her husband, she had also her
own Stridhan properties. She purported to have executed a Will on or about 23-08-1978
in favour of Kumari Sharada Raje. She, however, allegedly executed another Will on or
about 4-11-1992, by reason whereof, she purported to have revoked the Will executed by
her on 23-08-1978 and/or the Codicil. She appointed one K.R.P. Singh and the appellant
Anil Kak as joint executors. She also appointed Mr. T.N. Unni, her Chartered Accountant
to assist the executors in administering and distributing the estate and executing the said
Will. She categorized her properties in two parts, viz., Part A and Part B.
Part A consisted of those properties which were bequeathed in her favour by her husband
and Part B consisted of properties other than those specified in Part A. By reason of the
said Will, the said two sets of the properties were to be administered separately. Whereas
Part A properties were bequeathed in favour of four daughters. Part B properties were
sought to be bequeathed in favour of her four grand children.
4. Indisputably, the said Will was purported to have been attested by one Gita Sanghi,
who examined herself as PW-5 and one Baljit Bawa, who was not examined. The Will
contained a few appendices. Whereas the attesting witnesses purported to have put their
signatures in each page of the Will, they did not put any signature on the appendices to
the said Will.
5. With a view to appreciate the relationship of the parties, we may notice the family tree,
which is as under :
Appellant Anil Kak is the husband of Gangesh Kumari and son-in-law of Sumitra Raje
Dalvi. Appellant Arjun Kak is son of the appellant Anil Kak.
6. Before proceeding further, we may notice that whereas the application for grant of
Letters of Administration with a copy of the Will dated 23-08-1978 annexed, filed by
Kumari Sharada Raje was marked as Suit No. 2 of 1998; Anil Kak and Kumar Rampratap
filed an application for grant of probate in their capacity as executors appointed under,
the said Will dated 4-11-1992. which was marked as Suit No. 3 of 1998. Both the suits
were directed to be consolidated. The parties examined their witnesses in both the suits
by adducing common evidence.
7. Whereas the Will dated 23-08-1978 was a very short document, the Will dated 4-11-
1992 was a detailed one running into six typed pages besides three long appendices.
@page-SC2197
and two statements containing her investments in various shares within and outside the
country.
8. A learned single Judge of the High Court by reason of the impugned judgment refused
to grant probate and/or letters of administration in respect of both the Wills.
9. Whereas Civil Appeals arising out of SLP (C) Nos. 2791, 5831 and 9080 of 2006 have
been filed against that part of the judgment whereby and whereunder grant of probate in
respect of the Will dated 4-11-1992 has been rejected. Civil Appeal arising out of SLP (C)
No. 13865 of 2006 was filed in respect of the Will dated 23-08-1978.
10. The Letters Patent Appeals were filed against the judgment of the learned Single
Judge of the High Court by both the parties which have been dismissed by the Division
Bench of the High Court as not maintainable.
11. The learned counsel appearing for both the parties, have addressed us on the merit of
the matter. We are not considering the correctness or otherwise of the judgment of the
Division Bench of the High Court holding the Letters Patent Appeals to be not
maintainable, nor it is necessary for us so to do.
12. We may also at the outset place on record that no argument has been advanced in
regard to the findings of the learned Single Judge of the High Court refusing to grant
letters of administration in respect of the Will dated 23-08-1978 of the testatrix.
13. The learned Single Judge framed the following issues :
"(1) Whether the alleged Will with its appendices dated 4-11-1992 was duly executed by
late Maharani Sharmishthabai Holkar out of her free will, while she was in sound
disposing state of mind;
(2) Whether the Will dated 4-11-1992 has been acted upon by the parties, if so, its effect;
(3) Whether late Maharani Sharmishthabai Holkar had executed only one Will, i.e., dated
23-8-1978 out of her free will while she was in sound disposing state of mind;"
14. The learned Single Judge in its judgment inter alia held that the execution of the Will
dated 4-11-1992 has not been proved as :
(i) Appendices were not signed by the attesting witnesses;
(ii) The Will remained in the custody of Anil Kak for a long time;
(iii) Anil Kak did not examine himself as a witness;
(iv) As an unequal division of the properties described in Part B of the Will effected, there
existed suspicious circumstances.
(v) Anil Kak took part in preparation of the Will.
15. Mr. Arun Jaitley and Mr. R.F. Nariman, learned senior counsel appearing on behalf of
the appellants, in support of the appeal, submitted :
(i) The High -Court committed a serious error in passing the impugned judgment insofar
as it failed to take into consideration that the testatrix had divided her properties equally
amongst her four daughters as also her grand children and, therefore, there did not exist
any circumstance to suspect the genuineness of the Will.
@page-SC2198
(ii) The High Court committed a serious factual error insofar as it proceeded on the
premise that Part B assets were divided only amongst three grand children; whereas in
fact fourth grand child Vijayendra Ghatge was also a beneficiary under the Will.
(iii) Appendices were annexed with the Will for the purpose of bringing out clarities in
regard to the division of the properties.
(iv) Medical certificates were annexed to the Will go to show that the testatrix had a
sound disposing mind, and, thus, the burden of proof was on the caveators to prove
contra.
(v) The High Court committed a serious error insofar as it failed to take into
consideration the effect and purport of Sections 64, 87 and 103 of the Indian Succession
Act (for short "the Act").
16. Mr. S.B. Upadhyay, learned senior counsel appearing on behalf of the respondents, on
the other hand, urged :
(i) The Will dated 4-11-1992 was surrounded by suspicious circumstances as one of the
executors was husband of one of the grand children and son-in-law of one of the
daughters, whose family in turn was the beneficiary of the maximum number of
properties, viz., 27 out of 35 items.
(ii) In view of a clear finding of fact arrived at by the High Court that the appellant Anil
Kak had not only taken away the Will, he had also not disclose thereabout to the near
relatives for a long time, is also a pointer to show that the execution of the Will by the
testatrix was doubtful.
(iii) Appendices attached to the Will having been brought into existence at a later date,
the provisions contained in Sections 64, 87 and 103 of the Act will have no application, in
the instant case.
17. Testatrix at the time of execution of the Will was 85 years old. She was owner of
substantial properties.
18. Although all the four daughters of the testatrix were the beneficiaries of the properties
described in Part A of the Will, detailed directions as to how the said estate is to be
administered had been made therein. Even in relation to the criteria as regards
distribution of assets including the manner in which the tax and other liabilities are to be
made and how the investments with banks and others are to be encashed, if necessary to
be encashed have been stated. More importantly, however, the shares in the companies
were to be held in the joint names of the testatrix as also the joint executors. The
executors were to hold the same in trust. Whether the said direction had been carried out
and, if so, how and in what manner is not known. Executors had also been granted
express power to recall and repossess the jewellery, money or money's worth possessed
by any beneficiary of the Will or legatee but ownership of which was not conferred on
them for the purpose of meeting Government dues, liabilities or expenses.
19. We may at this stage notice a few stipulations made in the said Will dated 4-11-1992,
which are as under :
"B-4. The Executors will distribute the shares in companies as detailed in Appendix 'B'
together with the rights accruing thereto.
B-5. The jewellery belonging to me other than described in Part 'A' have been divided
and earmarked in different names as per Appendix 'C'.
I bequeath the items of my jewellery accordingly.
B-6. I bequeath my shares in companies and deposit with the Seattle Bank in U.S.A. in
favour of the respective nominees/joint-holders as per Appendix. All expenses, liabilities,
taxes, fees, etc. in realizing and distributing the said assets shall be borne proportionately
by the nominees/joint-holders."
20. The Will was purported to have been executed in presence of one Shanta Kumari Jain,
a notary. Two medical certificates; one issued by Dr. S.K. Mukherjee and the other by Dr.
Nirmal Sharma, were also annexed thereto.
21. It is not denied or disputed that the appellant Anil Kak took an active part in the
matter of preparation and execution of the Will.
For proving the said Will, the appellants examined one of the executors, viz., Kumar
Rampratap Singh as PW-1. He was not aware of the contents of the Will. It was handed
over to him on 10-09-1993 by Shri T.N. Unni (PW-6), Chartered Accountant. It was in
turn handed over to Anil Kak. The said Will was not executed in his presence. He was not
even aware of the execution thereof.
22. Shanta Kumari Jain, Notary, Geeta Sanghi, one of the attesting witnesses and
@page-SC2199
T.N. Unni examined themselves in support of the case of the appellants.
According to T.N. Unni, he had drafted only pages one to six of the Will. The said Will
was purported to have been executed at his residence at Indore. Geeta Sanghi and Baljeet
Bawa were the attesting witnesses. Baljit Bawa, as noticed hereinbefore, was not
examined. Geeta Sanghi sought to prove the testatrix's signature as also her own
signatures on the Will.
23. It is beyond any doubt or dispute that none of the attesting witnesses had put their
signatures on appendices A to C. Appendices A to C contain the list of jewelleries in great
details and which jewellery should be given to which grand daughter. The Wealth Tax
assessment for the year 1992-93 was also annexed by way of a statement showing the
market value of the shares of the companies registered in India. Another appendix
specified that ACC and TISCO shares were to be equally divided amongst four daughters,
viz., as per their average market value on the date of latest Wealth Tax assessment.
A statement showing the market value of the shares of the companies registered in U.K.
as per the wealth tax assessment for the year 1992-93 was also annexed. In regard to the
division thereof, it is stated that "each company's share is divided equally amongst my
four daughters". Names of the daughters had again been mentioned therein. Statement
showing the value of quoted shares as per wealth tax assessment for the year 1992-93 had
also been appended, the division whereof were to be done in the following manner :
"The shares in each company will be divided into six equal divisions. My grand children
Gangesh Kumari, Jagat Bingley and Ashish Dalvi will get one Division each and my
great grand children are bequeathed three remaining shares as follows, children of
Gangesh Kumari get one division, children of Jagat Bingley get one division, children of
Vijayendra Ghatge get one division. In case Ashish Dalvi is married and has children
before my demise, the shares in each company will be divided into seven equal divisions
and distribution remains the same with the additional division going to the children of
Ashish Dalvi."
24. It also contained bequeaths of jewellery from the personal list of the testatrix as
valued on 31st March, 1992 done by M/s. J.R.M. Bhandari. It again contained the
statement showing the value of quoted shares in respect of certain companies and the
mode and manner in which division thereof should be carried out.
25. It has furthermore been admitted that those appendices did not see the light of the day
when the Will was executed by the testatrix and attested and notarised.
26. It has furthermore not been disputed that whereas Gangesh Kumari, Jagat Bingley
and Ashish Dalvi are children of Sumitra Raje Dalvi, the only other grand child of
testatrix Vijayender Ghatge is son of Sita Raje Ghatge. From the list containing the
details of the jewellery, it appears that Vijendera Ghatge and family had been given one
semi rectangle clip set with diamond and ruby cabochon and two buttons studded with
diamonds and pearls set in gold. Umika Ghatge had also been given one square diamond
ring and one bracelet watch set with diamonds, ruby and emerald.
It furthermore appears that Arjun Kak is also a beneficiary under the Will.
27. The High Court made a distinction between the documents which are mere
appendices to an otherwise complete Will and those which are part and parcel of the Will
forming its integral part.
28. From what has been noticed hereinbefore it is clearly evident that division has not
been made per stripe or per capita but by species. Each one of the jewelleries which was
to be bequeathed to each of the beneficiary thereunder had specifically been specified.
Moreover, from the valuation report, it would appear that the respective distribution
purported to have been made in terms of the appendices would not make them of equal
value or nearabout which was the desire of the testatrix.
29. We may now notice the provisions of Sections 64, 87 and 103 of the Act whereupon
strong reliance has been placed by the learned counsel appearing for the appellants.
Section 64 of the Act reads as under :
"64. Incorporation of papers by reference if a testator, in a Will or codicil duly attested,
refers to any other document then actually written as expressing any part of his
intentions, such document shall be deemed to form a part of the Will or codicil in which it
is referred to."
@page-SC2200
30
. The rule of incorporation by reference is well-known. One document is incorporated by

reference in another when it is referred to, as if it would form an integral part thereof.
[See Sarabjit Rick Singh v. Union of India 2007 (14) SCALE 263] 2008 AIR SCW 390
31. Principle of incorporation by reference was evolved so as to avoid unnecessary

repetition of the same documents again and again in different parts of the original
document. For invoking the said principle, a document must be in existence. It cannot be
brought into existence later on. The executor of a document must know what the other
document which he intends to incorporate in the Will contains.
This aspect of the matter has been considered by the House of Lords in William Henry
Singleton v. Thomas Tomlinson and others [1878 (3) AC 404], wherein it was held :
"The question which arose in the Court below was whether in construing the Will and in
determining what the meaning of the testator was, this schedule could be looked at; and,
my Lords, on that point it will be quite sufficient if I refer to the two propositions which
were laid down, and which indeed were not challenged by any of the counsel at your
Lordships' Bar. It was said that there are certain cases in which, although a document is
not admitted to probate, still it may be referred to in a Will in such a way as that you are
entitled to look at the document, because it is virtually incorporated in that which is
admitted to probate; and the two propositions which were laid down as the tests of the
case in which a document under those circumstances could be looked at were these: first,
that it must be clearly identified by the description given of it in the Will; and secondly,
that it must be shown to have been in existence at the time when the Will was executed."
[See also Theobald on Wills, Sixteenth Edition, pages 59-61]
In Halsbury's Laws of England, Fourth Edition, paragraph 817 at pages 433-34, it is
stated :
"Incorporation of documents: In certain cases documents referred to in a testator's Will or
codicil, though not themselves duly executed, may be incorporated in the Will and
included in the probate [Re Mardon [1944] P 109 at 112, [1944] 2 All ER 397 at 399.]
Such a document must be strictly identified with the description contained in the Will; but
extrinsic evidence is admissible for the purpose of identification [See for instance, Allen
v. Maddock (1858) I I Moo PCC 427; Re Almosnino (1859) I SW and TR 508]. The
reference must be to a document as an existing document [ Re Mordon ] and not to one
which is to come into existence at a future date[Re Sunderland (1866) LRI P and D 198;
Re Reid (1868) 38 LJP and M I; Durham v. Northen [1895] P 66; Re Smart [1902] P 238.
Certainty and identification is the very essence of incorporation: Croker v. Marquess of
Hertford (1844) 4 Moo PCC 339 at 366, per Dr. Lushington.] The onus of proving the
identity of the document and its existence at the date of the Will lies upon the party
seeking to establish it [Singleton v. Tomlinson], but the Court will draw inferences from
the circumstances surrounding the execution of the Will.
If the Will prima facie refers to the document as an existing document, then, even though
it appears from the surrounding circumstances, namely the date of the signing of the
document, that it was not in existence at the date when the Will was originally executed,
the document may nevertheless be admitted to probate, since the Will is treated as
speaking from the date of its re-execution by the codicil; but if the will, treated as
speaking at the date of the codicil, still in terms refers to a future document, the document
cannot be admitted to probate even though it was in existence at the date of the codicil.
[ Re Smart [1902] P 238]."
32. Section 87 of the Act provides that testator's intention to be effectuated as far as
possible, stating :
"87. Testator's intention to be effectuated as far as possible. The intention of the testator
shall not be set aside because it cannot take effect to the full extent, but effect is to be
given to it as far as possible."
33. In a case of this nature, however, in our opinion, Section 87 of the Act will have no
application.
34. If the appendices formed an integral part of the Will and in their absence the Will was
not complete, then the intention of the testator cannot be effectuated. A distinction must
be made between an incomplete Will and a complete Will although intention of the
testator cannot be effectuated.
@page-SC2201
The testator's intention is collected from a consideration of the whole Will and not from a
part of it. If two parts of the same Will are wholly irreconcilable, the court of law would
not be in a position to come to a finding that the Will dated 4-11-1992 could be given
effect to irrespective of the appendices. In construing a Will, no doubt all possible
contingencies are required to be taken into consideration. Even if a part is invalid, the
entire document need not be invalidated, only if it forms a severable part. [See Bajrang
Factory Ltd. and another v. University of Calcutta and others (2007) 7 SCC 183] 2007
AIR SCW 4067
In Halsbury's Laws of England, Fourth Edition, Volume 50, page 332-33, it is stated :
"462. Leading principle of construction : The leading principle of construction which is
applicable to all Wills without qualification and overrides every other rule of construction
is that the testator's intention is collected from a consideration of the whole Will taken in
connection with any evidence properly admissible, and the meaning of the Will and of
every part of it is determined according to that intention."
In P. Manavala Chetty and Five Ors. v. P. Ramanujam Chetty and Anr. [(1971) 1 MLJ
127], a single Judge of the Madras High Court on the duty of the Court of construction to
give intention to the wishes of the testator opined :
"It is the obvious duty of the Court to ascertain and give effect to the true intentions of the
testator and also avoid any construction of the Will which will defeat or frustrate or bring
about a situation which is directly contrary to the intentions of the testator. At the same
time, it must be borne in mind that there are obvious limits to this doctrine that the Court
should try to ascertain and give effect to the intentions of the testator. The law requires a
Will to be in writing and it cannot, consistently with this doctrine, permit parol evidence
or evidence of collateral circumstances to be adduced to contradict or add to or vary the
contents of such a Will. No evidence, however powerful it may be, can be given in a
Court of construction in order to complete an incomplete Will, or project back a valid
Will, if the terms and conditions of the written Will are useless and ineffective to amount
to a valid bequest, or to prove any intention or wish of the testator not found in the Will.
The testator's declarations or evidence of collateral circumstances cannot control the
operation of the clear provisions of the Will. The provisions of the Indian Succession Act
referred to earlier indicate the limits of the Court's power to take note of the testator's
declarations and the surrounding circumstances, i.e., evidence of collateral
circumstances."
[Emphasis Supplied]
As regards two inconsistent Wills, with the latter being an incomplete one, the judgment
of Bagnall, Re [[1948] W.N. 324] necessitates one discussions. In the said case, the
testatrix had made two Wills, one in 1936 and the other in 1943. In the first Will, she
gave certain legacies and disposed of the residue. In the second Will, she provided
legacies of the same amounts and in favour of the same persons but did not dispose of the
residue. The second Will was not described as a codicil to the first, nor did it expressly
revoke it, but it was manifestly incomplete, ended without any stop and in the middle of a
sentence and was signed by the testator at the bottom of the page leaving a large gap
between the last words and the signature. Probate was granted of both Wills. It was held :
(i) Though the second Will was far removed in date from the first and was not called the
"last Will", it was intended, at any rate so far as it went, to take the place of the first Will,
and, therefore, the legacies given by the second Will were in substitution so far as they
went for those in the first;
(ii) An examination of the two documents, did not support the conclusion that the
intention of the testatrix, when she executed the second Will, was entirely to supersede
the earlier instrument, and, consequently, the first Will effectively disposed of the residue,
and one legacy given in the first Will but not repeated in the second Will was not revoked
by the latter.
In the judgment, the case of Kidd v. North [ 16 L.J. Ch. at p. 117] was referred to. There,
an incomplete testamentary paper containing a legacy of 500 Pounds in favour of one
Bridgett Bibby was admitted to probate with a Will and three codicils of prior date and
the question was whether this legacy was in substitution for a larger sum given by the
first codicil. Lord Chancellor, held, thus :
"When the testamentary papers of which probate is granted appear to give several
legacies to the same persons, it is often
@page-SC2202
extremely difficult to ascertain what was the real intention of the testator; and to attain
that object as far as possible certain rules have been laid down and nice distinctions
taken; but such rules and distinctions are applicable only to cases in which there is no
internal evidence of intention; for where there that is to be found; it must prevail. Such is
the present case; for I conceive it to be clear that the last testamentary paper was intended
to be in substitution for all the others, and to supersede the provisions contained in them.
It is indeed incomplete; but the ecclesiastical Court having granted probate of it, no
question can be made as to its being testamentary and operative as such so far as it goes.
It is reasonable to give such effect to the incomplete instrument, if it contains within itself
evidence of an intention to make an entirely new disposition; and for that purpose to undo
all that had been done before; but if the new disposition applies only to part of the subject
matter, the instrument being upon the face of it incomplete, and not applying to other
parts, it is consistent with the principle to give effect to this intention, so far as it is
expressed, but to consider the first disposition as operative, so far as no substituted
disposition is provided in its place."
35. But, the aforementioned principle cannot be applied in the instant case inasmuch as
appendices appended to the Will clearly specify as to how and in what manner the
intention of the testatrix to divide her properties equally amongst her daughters and/or her
grand children was to be implemented.
It is not a case where a general division was to be made leaving the manner of application
to the executors. The Will refers to appendices. Once it refers to the appendices indicating
that the distribution shall be in terms thereof, it is difficult to comprehend as to how
without the same, the Will can be said to be a complete one so as to effectuate the
intention of the testator. The intention of the testator in other words must be found out
from the entire Will. It has to be read as a whole. An endeavour should be made to give
effect to each part of it. Only when one part cannot be given effect to, having regard to
another part, the doctrine of purposive construction as also the general principles of
construction of deed may be given effect to. In the instant case, the document is one. It is
inseparable. Whereas the principal document provides for the broad division, the
principles of division laid down therein would be followed if the appendices are to be
taken recourse to. If the principles of equality as has been suggested by the learned
counsel is to be given effect to, it was expected that the testatrix intended to confer the
same benefit or the benefit having same value or nearabout to be conferred on each of the
legatees.
In effect and substance, the purported directions contained in the appendices which did
not see the light of the day on the date of execution of the Will, make the application of
the directions of the testatrix wholly impossible to be carried out. It is in that sense the
provisions of Section 87 of the Act are applicable.
36. The High Court has assigned good and cogent reasons in support of its judgment for
not accepting the evidence of Mr. Unni. Mr. Unni admitted that the appendices were to be
brought by Anil Kak. If the same had not been brought to her on the day the Will was
executed, we wonder how the testatrix had knowledge thereabout. It now almost stands
admitted that the appendices did not form part of the Will at the time of its purported
execution. If the Will was incomplete the question of its proving the execution does not
arise. An integral part of the document for the purpose of satisfying the tests laid down
under Section 63(1)(c) of the Act and Section 68 of the Evidence Act must mean a
complete document.
37. In "Jarman on Wills", Volume 1, Eighth Edition (Sweet and Maxwell) at Pages 145-
46 on Incomplete Wills, it is stated :
"XII. - Incomplete Wills: Cases sometimes occurred under the old law, and may possibly
arise under the present, in which something more than mere compliance with legal
requirements was made necessary to the efficacy of the Will by the testator himself, he
having chose to prescribe to himself a special mode of execution; for in such case, if the
testator afterwards neglects to comply with the prescribed formalities, the inference to be
drawn from these circumstances is, that he had not fully and definitely resolved on
adopting the paper as his Will. Accordingly, under the old law, which did not require
Wills of personality to be authenticated by the testator's signature or by attestation, the
Prerogative Court in several instances refused to probate of Wills, concluding
@page-SC2203
with the words "In Witness", etc., but not signed: Abbot v. Peters, 4 Hagg. 380. Questions
as to the testamentary validity of incomplete papers rarely occur in practice, now that
authentication of signature and attestation are essential to such validit..] The presumption
is slight where the instrument is duly signed and attested, and perfect in all other respects,
but must apparently be rebutted by some evidence before it can be admitted to probate.
[Per Sir J. Nicholl in Beaty v. Beary. See also 1 Wms. Exors., Pt. 1., Bk. II , Ch. II, S.2.].
But this doctrine in favour of imperfect papers obtains only where the defect is in regard
to some formal act, which the testator has prescribed as necessary for the authentication
of his Will, and not where it applies to the contents of the instrument; for, if in its actual
state the paper contains only a partial disclosure if the testamentary scheme of the
deceased, it necessarily fails of effect, even though its completion was prevented by
circumstances beyond his control [Montefiore v. Montefiore, 23 Ad. 354; see also Griffin
v. Griffin, 4 Ves. 197, n. This case afforded two sufficient grounds for the rejection of the
paper; first, that it was not the whole Will; and secondly, that its completion was not
prevented by inevitable circumstances].
In short, the presumption is always against a paper which bears self-evident marks of
being unfinished; and it behoves those who assert its testamentary character distinctly to
show, either that the deceased intended the paper in its actual condition to operate as his
Will, or that he was prevented by involuntary accident from completing it [Reay v.
Cowcher, 1 Hagg. 75, 2 ib. 249; Wood v. Medley, 1 ib. 661; In b. Robinson, ib. 643;
Bragge v. Dyer, 3 Hag. 207; Gillow v. Bourne, 4 Hagg. 192. And to the contrary
presumption in favour of a regularly executed and apparently completed Will, vide
Shadbolt v. Wagh. 570; Blewitt v. Blewitt, 4 Hagg. 410.]"
To the same effect is Alexander on "Commentaries on Wills" Vol. I, Execution at page
193-94 which states :
"prior to the Statute of Wills of 1 Vict., ch. 26, and the American statutes, which require
the same formalities in the execution and attestation of Wills of personalty as in devises
of realty, the Courts allowed imperfectly executed testamentary writings to take effect as
nuncupative dispositions of personalty, where it appeared that the testators intended them
to operate in the form in which they were found, and that the failure to completely
execute them arose for some reason other than a purpose to abandon."
It was further stated :
"But the Courts always viewed such instruments with suspicion and, in proportion to the
incompleteness of the document, demanded a higher degree of evidence. But the more
modern day doctrine is that a nuncupative Will can be made only by spoken words or by
signs and that, if the words be reduced to writing by the testator or by someone else at his
request, they lose their nuncupative character. And it seems that under the modern
statutes and rulings, even verbal instructions for drawing up a written Will, although
spoken in the presence of the proper number of witnesses, cannot be admitted to probate
as a nuncupative Will."
38. Section 103 of the Act speaks of a residuary bequest but the same evidently has no
application in this case.
The execution of the Will becomes impossible both in respect of the properties described
in Part A and Part B.
39. Furthermore, the Will is surrounded by suspicious circumstances.
The execution of a Will does not only mean proving of the signatures of the executors
and the attesting witnesses. It means something more. A Will is not an ordinary
document. It although requires to be proved like any other documents but the statutory
conditions imposed by reason of Section 63(c) of the Act and Section 68 of the Indian
Evidence Act cannot be ignored.
In B. Venkatamuni v. C.J. Ayodhya Ram Singh and Ors. [2006 (11) SCALE 148], this
Court held : 2006 AIR SCW 6115
"It is, however, well settled that compliance of statutory requirements itself is not
sufficient as would appear from the discussions hereinafter made."
It was observed :
"Yet again Section 68 of the Indian Evidence Act postulates the mode and manner in
which proof of execution of document which is required by law to be attested stating that
the execution must be proved by at least one attesting witness, if an attesting witness is
alive and subject to the process of the Court and capable of giving evidence."
@page-SC2204
Yet again in Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao and Ors. [2006 (14)
SCALE 186], this Court held : 2007 AIR SCW 203
"Section 63 of the Indian Succession Act lays down the mode and manner of execution of
an unprivileged Will. Section 68 of the Indian Evidence Act postulates the mode and
manner of execution of document which is required by law to be attested. It in
unequivocal terms states that execution of Will must be proved at least by one attesting
witness, if an attesting witness is alive subject to the process of the Court and capable of
giving evidence. A Will is to prove what is loosely called as primary evidence, except
where proof is permitted by leading secondary evidence. Unlike other documents, proof
of execution of any other document under the Act would not be sufficient as in terms of
Section 68 of the Indian Evidence Act, execution must be proved at least by one of the
attesting witnesses. While making attestation, there must be an animus attestandi, on the
part of the attesting witness, meaning thereby, he must intend to attest and extrinsic
evidence on this point is receivable.
The burden of proof that the Will has been validly executed and is a genuine document is
on the propounder. The propounder is also required to prove that the testator has signed
the Will and that he had put his signature out of his own free will having a sound
disposition of mind and understood the nature and effect thereof. If sufficient evidence in
this behalf is brought on record, the onus of the propounder may be held to have been
discharged. But, the onus would be on the applicant to remove the suspicion by leading
sufficient and cogent evidence if there exists any. In the case of proof of Will, a signature
of a testator alone would not prove the execution thereof, if his mind may appear to be
very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is
raised, the burden would be on the caveator. [See Madhukar D. Shende v. Tarabai
Shedage (2002) 2 SCC 85 and Sridevi and Ors. v. Jayaraja Shetty and Ors. (2005) 8 SCC
784]. Subject to above, proof of a Will does not ordinarily differ from that of proving any
other document." 2002 AIR SCW 242
2005 AIR SCW 605
[See also Adivekka and others v. Hanamawa Kom Venkatesh (Dead) by LRs. and another
(2007) 7 SCC 91]
40
. Whereas execution of any other document can be proved by proving the writings of the
document or the contents of it as also the execution thereof, in the event there exists
suspicious circumstances the party seeking to obtain probate and/or letters of
administration with a copy of the Will annexed must also adduce evidence to the
satisfaction of the Court before it can be accepted as genuine. 2007 AIR SCW 3060
41. As an order granting probate is a judgment in rem, the Court must also satisfy its
conscience before it passes an order.
It may be true that deprivation of a due share by the natural heir by itself may not be held
to be a suspicious circumstance but it is one of the factors which is taken into
consideration by the Courts before granting probate of a Will.
Unlike other documents, even animus attestandi is a necessary ingredient for proving the
attestation.
In Benga Behera and Anr. v. Braja Kishore Nanda and Ors. [2007 (7) SCALE 228], this
"46. Existence of suspicious circumstances itself may be held to be sufficient to arrive at

a conclusion that execution of the Will has not duly been proved."
In B. Venkatamuni v. C.J. Ayodhya Ram Singh and Ors. [2006 (11) SCALE 148], it was
stated : 2006 AIR SCW 6115
"However, having regard to the fact that the Will was registered one and the propounder
had discharged the onus, it was held that in such circumstances, the onus shifts to the
contestant opposing the Will to bring material on record meeting such prima facie case in
which event the onus shifts back on the propounder to satisfy the Court affirmatively that
the testator did not know well the contents of the Will and in sound disposing capacity
executed the same.
Each case, however, must be determined in the fact situation obtaining therein.
The Division Bench of the High Court was, with respect, thus, entirely wrong in
proceeding on the premise that compliance of legal formalities as regards proof of the
Will would sub-serve the purpose and the suspicious circumstances surrounding the
execution thereof is not of much significance.
The suspicious circumstances pointed
@page-SC2205
out by the learned District Judge and the learned Single Judge of the High Court, were
glaring on the face of the records. They could not have been ignored by the Division
Bench and in any event, the Division Bench should have been slow in interfering with the
findings of fact arrived at by the said Court. It applied a wrong legal test and thus, came
to an erroneous decision."
Yet again in Savithri and Ors. v. Karthyayani Amma and Ors. [JT 2007 (12) SC 248], this
"18. We do not find in the fact situation obtaining herein that any such suspicious
circumstance was existing. We are not unmindful of the fact that the Court must satisfy its
conscience before its genuineness is accepted. But what is necessary therefor, is a rational
approach.
19. Deprivation of a due share by the natural heirs itself is not a factor which would lead
to the conclusion that there exist suspicious circumstances. For the said purpose, as
noticed hereinbefore, the background facts should also be taken into consideration. The
son was not meeting his father. He had not been attending to him. He was not even
meeting the expenses for his treatment from 1959, when he lost his job till his death in
1978. The testator was living with his sister and her children. If in that situation, if he
executed a Will in their favour, no exception thereto can be taken. Even then, something
was left for the appellant."
42. The Court is, thus, required to adopt a rational approach in a situation of this nature.
Once the Court is required to satisfy its conscience, existence of suspicious circumstances
play a prominent role. The Will, as noticed hereinbefore, is in two parts. Whereas the first
part deals with the property belonging to the husband of the testatrix, the second part
deals with the properties which purportedly belongs to her. Distribution of assets,
however, was not specifically stated in the Will. They were to be made as per the
appendices annexed thereto. The appendices which were required to be read as a part of
the main Will so as to effectuate the intention of the testatrix have not been proved. The
Will by its own cannot be given effect to. The Will must be read along with the
appendices. No doubt in construing a Will arm chair rule is to be adopted. The Will was,
therefore, not complete. It is not correct to contend that the appendices were very much in
existence at the time when the Will was executed. Existence of a document must mean
the actual existence. We are, therefore, of the opinion that no case has been made out for
interference with the impugned judgment.
43. For the reasons aforementioned, the appeals are dismissed with costs. Counsel's fee
assessed at Rs. 50,000/-.
Appeals dismissed.
AIR 2008 SUPREME COURT 2205 "Dinesh Borthakur v. State of Assam"
(From : Gauhati)*
Coram : 2 S. B. SINHA AND DALVEER BHANDARI, JJ.
Dinesh Borthakur v. State of Assam.
(A) Penal Code (45 of 1860), S.300 - MURDER - EVIDENCE - Murder - Circumstantial
evidence - Allegation against appellant for killing his wife and daughter - No evidence of
any mark of struggle by and between two deceased with accused - No motive for
committing crime identified - Scraping of nails taken from two deceased did not
correspond to scrapping of skin taken from body of appellant - No incriminating evidence
linking appellant in regard to administration of poison/pesticide brought on record - No
delay on part of appellant in informing police - Conviction of appellant for murder cannot
be sustained.
Crl. A. No.345 of 2003, D/-26-04-2006 (Gau), Reversed. (Paras 30, 33, 37, 50, 52, 54)
(B) Criminal P.C. (2 of 1974), S.156 - INVESTIGATION - EVIDENCE - Investigation -
Services of sniffer dog may be taken for purpose of investigation - However, its faculties
cannot be taken as evidence for purpose of establishing guilt of accused.
(C) Penal Code (45 of 1860), S.300 - MURDER - Murder - Proof - Conduct of accused -
Merely because appellant did not cry or weep on witnessing dead bodies of his wife and
daughter, cannot be made basis of his
@page-SC2206
guilt - No hard and fast rule having any universal application with regard to reaction of
person in given circumstance can 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. (Paras 43, 44)
(D) Criminal P.C. (2 of 1974), S.154 - FIR - WITNESS - F. I. R. - Witness stating that
earlier he had asked someone to inform police about incident but he did not comply with
- Appellant accused himself therefore lodged F. I. R. only when police arrived at scene of
occurrence - Advene inference thus, cannot be drawn against appellant on ground that he
had not informed officer-in-charge of Police Station. (Para 52)
2004 AIR SCW 3656 : AIR 2004 SC 3690 : 2004 Cri LJ 3118 (Foll. Pnt. C) 42
2001 AIR SCW 2509 : AIR 2001 SC 2677 : 2001 Cri LJ 3317 (Foll. Pnt. B) 38
1994 AIR SCW 2474 (Foll. Pnt. C) 42
AIR 1984 SC 1622 : 1984 Cri LJ 1738 (Foll. Pnt. A) 51
AIR 1983 SC 680 : 1983 Cri LJ 1272 (Foll. Pnt. C) 42
AIR 1970 SC 283 (Foll. Pnt. B) 38
Ms. Meenakshi Arora, for Appellant; Ms. Momota and Ranjan Mazumdar (for M/s.
Corporate Law Group) for Respondent.
* Cri. Appeal No.345 of 2003, D/-26-04-2006 (Gau).
Judgement
1. S. B. SINHA, J. :- Appellant was convicted and sentenced to undergo rigorous
imprisonment for life on the charge of murder of his wife Mala Borthakur and adopted
daughter Munni @ Mayuri. He was residing with the first deceased at Sibnath
Bhattacharya Lane, Chiring Chapari in the town of Dibrugarh.
2. He is an Engineer by profession. At about 4.00/5.00 p.m. on 25-5-1999, when he
returned from his place of work, he allegedly knocked the main door of the house. There
was no response. He called his immediate neighbour Pranab Kumar Borah (PW1).
3. PW1, whose house is separated only by a wall, opened the window and asked him as to
what had happened. To that the appellant allegedly replied "they are not opening the
door". He responded thereto saying that "they are perhaps sleeping". He went to the rear
side of the premises. He found the same open.
4. He was heard shouting loudly calling the name of his daughter Munni and wife Mala
several times. He found his wife and daughter lying dead on separate beds. After a few
minutes, Appellant called PW1 again shouting "Boruah! Boruah!". On his query as to
what had happened, he asked him to come and have a look. PW1 found the wife of the
deceased lying on the bed with her face down. He also saw the lower part of her legs
looking pale. His attention was also drawn by the appellant to the corpse of Munni. The
leg of the girl was shaken by the appellant stating, "look, she is also not moving".
Appellant remarked. "Mala should not have done this".
5. PW1, thereafter, asked somebody (whose name has not been disclosed) to inform the
police. As the said request was not complied, he himself informed the officer-in-charge of
the police station about the incident.
6. For the purpose of investigation, a sniffer dog was brought into service. The dog was
taken near the dead bodies. It allegedly went close to the appellant only and no one else
when he was inside the house.
7. PW1, in his deposition before the Court opined 'that even though such a shocking
incident had taken place, Borthakur did not show any reaction as he should have'. He,
however, in his cross-examination stated 'having seen the occurrence, I had lost my
senses. He too might have been out of his mind to some extent. Reactions vary with
people. As the deceased were accused person's wife and daughter respectively, his
reaction should have been more acute. Reaction of the accused person that I had noticed
might have been for the unexpected turn of event. He was repeatedly going near the dead
body of his daughter but not that of his wife.'
8. Apart from PW1, his wife Purnima Devi examined herself as PW-2. According to her,
at about 10.10 A.M. when she had been going to her office, the daughter of the accused,
Munni, had been crying. On being asked the reason therefor, Mala had replied that Munni
had been crying because she had been giving her a bath.
9. PW3 Binu Bezborauah was also a neighbour of the appellant. She was also a witness to
the unusual crying of the girl,
10. PW4, Sri Manash Borpujari is an
@page-SC2207
employee of the Education Department. He is the brother-in-law of the appellant.
11. According to him, when the appellant having been asked at around 3.30/4.00 PM as to
what had happened, he replied "she killed Munni, she killed herself too". Reaction of
PW4 upon seeing the dead body, however, was that she had been murdered. He accepted
that the marriage between the deceased Mala and the appellant took place 16-17 years
prior to his date of deposition and, apparently they had good relations. According to him,
he had not witnessed any quarrel between them.
12. PW5, Dr. R. Chaliha conducted the post mortem examination.
13. PW6, is Rubul Sharma. He allegedly had seen a skipping rope around the neck of
Mala as also a gold chain. He also allegedly noticed blood dipping out from the corners
of her lips. He also found black marks around the neck of Munni.
14. The Investigating Officer also found a bottle of poison.
15. According to PW6, sheets of the bed on which the dead bodies were found, had neatly
been spread. He also noticed arrival of the police dog. According to him, after having
smelt the dead bodies, the dog did not go out of the room but stayed inside it near and
about the appellant.
16. PW7, Sri Dhiraj Sarmah, was a neighbour. He came to the place of occurrence.
According to him, Manas Barpujari came crying and told him "Someone has killed Bubli
baiden (elder sister) and her daughter Munni and had left their dead bodies on the bed."
17. PW8 is Sri Manik Barkakoty. He was only a witness in regard to the conduct and/ or
reaction of the appellant. Evidence of PW9, Sri Chapan Sarmah, was confined to the
scene of the bed rooms.
18. PW10, Sri Bijoy Prasad is the owner of a pan shop. According to him the accused did
not buy any pan from his shop on the date of incident, i.e., 25-5-1999.
19. PW11, Sri Ganesh Borthakur is the brother of the accused. He, having been informed,
visited the place of occurrence. His evidence is not very material.
20. PW12 is Smt. Manjuri Borthakur. According to her, she found the accused sobbing
and moving hither and thither in the room in which his daughter had been lying dead.
21. PW13, Sri Anup Baruah was a resident of a place which was at a distance of four
furlongs from the appellant's house. Somebody informed him about the said deaths
whereupon he went there.
22. PW14, Sri Anupma Dutta also deposed to the same effect. PW15, Sri Samudra
Baishya is a Chemical Engineer. According to him the bottle contained organophosphorus
pesticide which is a kind of insecticide used in vegetable cultivations.
23. PW16, Sri Kusheswar Borah was the officer in-charge of Lakhimpur Police Station.
He is the investigating officer in the case. He admitted that PW1 Pranab Baruah had not
stated before him that 'Mala should not have done this nor did he inform that the accused
had frequently gone near his daughter but not near his wife'. Similarly, PW4 Manas
Barpujari did not state before him about the alleged remark of the appellant that 'deceased
Mala had killed Munni and killed herself too and that he had seen scratching marks on
the back of the appellant'. PW6 Rubul Sharmah did not inform him that he had seen
blood coming out of Mala's mouth and that some milk like things had been found in the
glass at the scene. Similarly, PW9 Chandan Sharmah did not state before him that that
Mala and Munni had been found lying on the same bed.
24. Only on the basis of the aforementioned materials brought on records by the
prosecution, a judgment of conviction against the appellant was recorded by the learned
Trial Judge. The High Court dismissed the appeal preferred thereagainst.
25. The fact that Munni suffered a homicidal death is not in dispute. However, there
appears to be some dispute as to whether death of Mala was homicidal or suicidal in
nature. The dead bodies of both Mala and Munni were having ligature marks but the
doctor opined that only Munni died of asphyxia. No such opinion was rendered in respect
of the death of Mala. However, the result of the chemical examination showed presence
of organophosphorus pesticide, a poison.
26. In regard to death of Mala, PW5, in his deposition, stated :
"Regarding Mala Borthakur, in my post mortem report, I have not mentioned word
"homicide". Report is/was silent about homicide........
@page-SC2208
In the instant case, my opinion is/was silent regarding Mala Borthkur whether it was
suicidal or homicidal."
27. What has been noticed hereinbefore clearly demonstrates that the prosecution led only
circumstantial evidence before the learned Trial Judge.
The learned Trial Judge, apart from the statements made by the prosecution witnesses in
regard to the conduct of the appellant, also took into consideration the fact that he had not
informed the police in regard to the death of 'his own wife and adopted daughter'. It was
furthermore opined that the appellant had failed to establish his own innocence. An
adverse inference was drawn against the accused in regard to his failure to inform about
the death of his wife and adopted daughter till the arrival of the police party to his house.
The learned Trial Judge also noticed that the sniffer dog had gone near the appellant only
and nobody else when he had been inside the house. According to the learned Trial Judge,
the behaviour of the accused was abnormal as he had neither wept nor cried nor shown
any sign of shock or being upset at the scene of death of 'his own wife and adopted
daughter'. Emphasis was also laid on the fact that when the appellant was being
interrogated by the Investigating Officer, allegedly, he had told him that he was feeling
hungry and had bought some food from a line hotel.
28. In his judgment, the learned Trial Judge referred to the statements of the appellant in
his examination under Section 313 of the Code of Criminal Procedure in great details.
Statements of PW1 was also quoted in extenso.
29. The learned Trial Judge, however, in our opinion, failed to analyse the evidence of the
prosecution witnesses in a proper and effective manner. Although opining that he had no
motive to kill his wife and the adopted daughter, the effect thereof was not considered
keeping in view the fact that the prosecution rested its case only on circumstantial
evidence. The learned Trial Judge, although took notice of the statements of PW13 that
the spectacles of the appellants were found lying on a book of Munni, drew no inference
therefrom. He also did not make any attempt to determine the relevance of the said
evidence. We, however, do not find the said evidence having any relevance to the
prosecution case. The learned Trial Judge furthermore placed on record that according to
PW13, marks of blood on the nails of the deceased having been noticed, the Investigating
Officer got the shirt removed from the body of the appellant and found two nail marks on
his back.
30. The learned Trial judge accepted that there was no evidence brought on record to
show that the accused was seen at the place of the occurrence of crime during the period
between 11.30 A.M. in the morning hours and at about 4.00/5.00 P.M. in the afternoon, so
as to enable it to infer that he could forcibly administer poison to the deceased or
strangulate them or to do the both so as to cause their deaths. He further recorded that
PW6 admitted in his evidence that the nail scrapping taken from the two deceased did not
correspond to the skin scrapping taken from the body of the accused. Thus, there was no
evidence of any mark of struggle by and between the two deceased with the accused.
31. The purported absence of any reaction on the part of the appellant in regard to the
death of two deceased was for all intent and purpose made the sole basis for his
conviction by the learned Trial Judge of the offence. It was concluded :
"So, taking the gamut of all the circumstances analyzed in para No. 19, 24, 25, 31, 33, 37,
38, 43, 46, 47 and 54 above in particulars and the case-laws mentioned in para No. 55
above in entirety, I am very much persuaded to presume that it was the present accused
Dinesh Borthakur, and none else who had intentionally caused the death of his wife Mala
Borthakur and his adopted daughter in a cold blooded manner to eliminate them from this
earth with some motive best known to himself. The evidence on record of this instant
case relating to circumstances and conduct of the accused sufficiently and clearly
established all the links in the chain of circumstances leading to the guilt of present
accused and no reasonable ground was left for consideration consistent with his
innocence."
(Emphasis supplied)
32. Judgment of the High Court with respect is no different.
33. A finding of guilt cannot be based on a presumption. Before arriving at an inference
that the appellant has committed an offence, existence of materials therefor ought
@page-SC2209
to have been found. No motive for committing the crime was identified which, in the
facts and circumstances of the case, was relevant. How the links in the chain of the
circumstances led to only one conclusion that the appellant and the appellant alone was
guilty of commission of the offence has not been spelt out by the learned Trial Judge.
34. The courts below did not record any finding on the basis of any material brought on
record by the prosecution that the appellant was seen at the place of occurrence of crime
between 11.30 am to 4/5.00 pm. The least the prosecution, in this behalf, could do was to
examine the co-employees of the appellant who had been working in his office to find out
as to when he had reached his office or whether he had left his office at any time prior to
4.00 pm. No evidence was also led to bring on record the distance between the house of
the appellant and his office. No witness also deposed in regard to the mode of his
travelling. He had been seen going out of his house for his place of work by the
prosecution witnesses. PW1 found him calling the name of his wife and the adopted
daughter for opening of the main door. He went to the backside of the premises only
when PW1 expressed his opinion that they might have been sleeping.
35. The time lag between the appellant's calling PW1 for the first time and the second
time was a few minutes. The prosecution did not suggest nor any finding has been arrived
at that the offence could have been committed during the said interval.
36. PW1 on seeing the deceased Mala lying on the bed gathered an impression that the
matter was not normal. Further, PW1 in his evidence states that the accused shook the leg
of the child 'Munni' stating that she was also not moving. It is the admitted case of the
prosecution that the accused had asked PW1 to come and have a look PW1 himself was
uncertain as to whether Mala and child Munni were already dead or not. The conduct of
the appellant, so far his initial reaction to the occurrence is concerned, appears to be most
natural as he suspected that something was wrong but was unsure thereabout at the same
time. In any view of the matter, it does not give rise to an inference which is consistent
with the hypothesis of guilt.
37. At this juncture, we may place on record that PW6, in his evidence, in no uncertain
terms, admitted that the scraping of nails taken from the two deceased did not correspond
to the scrapping of skin taken from the body of the appellant. the prosecution, therefore,
did not bring on record any material to show that the deceased had put up any resistance
when the appellant had allegedly tried to commit the crime. Medical evidence brought on
record also does not conclusively show that Mala Borthakur suffered a homicidal death as
is evident from the autopsy report, which we have noticed hereinbefore.
38. The mainstay of the prosecution case is the evidence of PW6, PW8, PW9 and PW13
who testified about the sniffer dog's staying near the accused and the reaction of the
accused was not natural as he did not exhibit his emotion or sadness despite the fact that a
shocking incident had occurred.
So far as the evidence relating to the reaction of sniffer dog is concerned, this Court in
Abdul Rajak Murtaja Dafedar v. State of Maharashtra [(1969 (2) SCC 234 stated the law,
thus : AIR 1970 SC 283 at P. 287
"There are three objections which are usually advanced against reception of the evidence
of dog tracking. First since it is manifest that the dog cannot go into the box and give his
evidence on oath and consequently submit himself to cross-examination, the dog's human
companion must go into the box and the report the dog's evidence and this is clearly
hearsay. Secondly, there is a feeling that in criminal cases the life and liberty of a human
being should not be dependent on canine inference............."
Yet again in Gade Lakshmi Mangaraju alias Ramesh v. State of A.P [2001 (6) SCC 205],
this Court opined : 2001 AIR SCW 2509, Para 13
"There are inherent frailties in the evidence based on sniffer or tracker dog. The
possibility of an error on the part of the dog or its master is the first among them.........
The possibility of a misrepresentation or a wrong inference from the behaviour of the dog
could not be ruled out. Last, but not the least, is the fact that from scientific point of view,
there is little knowledge and much uncertainty as to the precise faculties which enable
police dogs to track and identify criminals........ Investigation exercises can afford to
make attempts or forays with the
@page-SC2210
help of canine faculties but judicial exercise can ill afford them."
39. The law in this behalf, therefore, is settled that while the services of a sniffer dog may
be taken for the purpose of investigation, its faculties cannot be taken as evidence for the
purpose of establishing the guilt of an accused.
40. Let us now consider another aspect of the matter viz., the so called abnormal conduct
on the part of the appellant. PW1 was considered to be the star witness by the
prosecution. He was in his house upto 11.30 am. It can safely be inferred from his
deposition that he had come back to his residence much prior to the appellant. He had not
noticed any abnormality in the locality. Other witnesses who were the neighbours of the
appellant and/or the shop owners who have their shops on the other side of the road were
also not aware of any incident before the appellant reached his residence.
PW1 and PW2, in their deposition, did not notice any unusual conduct on the part of the
appellant or the deceased Mala on that day.
The only unusual thing noticed by PW1, PW2 and PW3 was the abnormal crying of
Munni in the morning for a long time. Something, therefore, must have happened
between the mother and the daughter. It is difficult to believe that a six year old girl
would cry so loudly and that too for such a long span of time so as to draw the attention
of the neighbours only because the mother was giving her a bath. Something, therefore,
must have happened which the deceased was trying to hide.
41. We fail to see any abnormality in the initial reaction of the appellant. He knocked at
the door vigorously. He called the deceased in a loud voice which attracted the attention
of PW1. On a query made by the latter, he had stated that they had not been opening the
door and only when PW1 opined that they must have been sleeping, he went to the rear
side of the premises and discovered the dead bodies lying on the bed and again without
any loss of time called PW1.
PW1, in his cross-examination, admitted that reactions vary from person to person.
Absence of any exhibition of sadness on the part of the appellant, according to PW1, was
not the conduct of a normal human being. Manjuri Borthakur's evidence, however, is
otherwise.
42
. We may notice that this Court in Rana Partap and others vs. State of Haryana reported in
[1983 (3) SCC 327] opined : AIR 1983 SC 680 Para 6
"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 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."
{See also Marwadi Kishor Parmanand and Another vs. State of Gujarat [1994 (4) SCC
549] and State of U.P. vs. Devendra Singh [2004 (10) SCC 616)]}. 1994 AIR SCW 2474
(2004 AIR SCW 3656
43. 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.
44. 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 his guilt.
45. If he had gone to his office and come back therefrom between 11.30 am till 4/ 5.00
pm, the matter might have been different. If the theory that he could have committed the
murder within a couple of minutes is ruled out, we fail to see on what basis even a
suspicion could have been raised that the appellant had committed the crime. It is not the
case of the prosecution that the deceased were last seen in the company of the appellant.
Nobody had seen him going inside his house or coming out at the time
@page-SC2211
of or near about the commission of the crime. The matter might have been different if
some evidence had been introduced to suggest that the offence was committed sometime
between 11.30 am and 4/5.00 pm. Ordinarily, an accused person after commission of such
a ghastly crime would run away from the scene of occurrence but he did not do so. Even
if he was to pretend that he did not know about the said occurrence, he could have stayed
back in his office waiting for the call of his neighbours about the death of his wife and
daughter.
46. His conduct or reaction (or lack of it) by itself, thus, cannot be a ground for arriving
at a conclusion that he is guilty of commission of crime. Formation of another opinion is
also possible.
It may or may not be that the appellant, in presence of PW1, told "Mala should not have
done that". The same by itself does not take us anywhere. Assuming that he did so,
although according to the Investigating Officer, no such statement was made by PW1
before him, the same merely indicated that something had happened between the mother
and the daughter in the morning which was not to the liking of the appellant.
47. We are surprised to notice the introduction of a story by the prosecution through
PW4. Even if the conduct of the appellant demonstrated that he had been feeling sorry for
the death of his daughter and not for his wife, it does not take us any further to arrive at
one conclusion or the other.
48. More surprising is the introduction of the purported incriminating circumstances
through some of the prosecution witnesses in regard to the location of the dead body and
the manner in which things were discovered by some of the prosecution witnesses,
although neither the Investigating Officer had noticed the same nor his attention was
drawn thereto by the said witnesses or others.
49. We have noticed heretobefore that the prosecution witnesses did not make any
statement in regard to the purported reaction of the appellant before the Investigating
Officer.
50. The prosecution made an attempt to show that the deaths of the victims were caused
by administration of poison and/or strangulation. The bottle containing pesticide was
found in the wash basin along with a glass inside the house. There is nothing on record to
show that the appellant had purchased pesticide or brought it home. No fingerprint of the
appellant was taken to show that it was he who had used the bottle or the glass for the
said purpose. No incriminating evidence linking the appellant in regard to administration
of poison/pesticide has been brought on record.
51
. In Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116], this Court
opined that before arriving at the finding as regards the guilt of the appellant, the
following circumstances must be established : AIR 1984 SC 1622
(i) the circumstances from which the conclusion of guilt is to be drawn should be fully
established;
(ii) the facts so established should be consistent only with the hypothesis of the guilt of
the accused and should not be explainable on any other hypothesis except that accused is
guilty;
(iii) the circumstances should be conclusive nature;
(iv) there must be a chain of evidence so complete as not to leave any reasonable ground
for the conclusion consistent with innocence of the accused on preponderance of
probability."
In that case, it was categorically held that the prosecution in a case of commission of
murder by poisoning must bring in record some evidence linking the accused therewith,
stating :
"In the instant case, while two ingredients have been proved but two have not. In the first
place, it has no doubt been proved that Manju died of potassium cyanide and secondly, it
has also been proved that there was an opportunity to administer the poison. It has,
however, not been proved by any evidence that the appellant had the poison in his
possession."
"2. That, at any rate, the evidence clearly shows that two views are possible one pointing
to the guilt of the accused and the other leading to his innocence. It may be very likely
that the appellant may have administered the poison (potassium Cyanide) to Manju but at
the same time a fair possibility that she herself committed suicide cannot be safely
excluded or eliminated. Hence,
@page-SC2212
on this ground alone the appellant is entitled to the benefit of doubt resulting in his
acquittal.
3. The prosecution has miserably failed to prove one of the most essential ingredients of a
case of death caused by administration of poison, i.e., possession of poison with the
accused (either by direct or circumstantial evidence) and on this ground alone the
prosecution must fail."
52. First Information Report might have been lodged by the appellant only when the
police arrived at the scene of occurrence. The Investigating Officer came to the place of
occurrence at about 4.45 pm. PW1 categorically stated that he had asked someone to
inform the police. When he did not comply therewith, then only he did so. If, in the
aforementioned situation, the appellant had not informed the officer-in-charge of the
police station, no presumption of adverse inference could be raised against him. There
was no delay on the part of the appellant in informing the police, particularly, when he
had informed PW1 who, in turn, informed the police.
53. The learned Trial Judge has also relied upon the evidence of PW10, the owner of a
Pan shop, who testified that the appellant had not visited the Pan shop on that day. His
evidence, in our opinion, is not at all reliable. He admitted in his cross-examination that
in the forenoon, his brother used to sit at the shop and, thus, his inference that the
appellant used to take Pan regularly cannot be trustworthy.
54. We, therefore, are of the firm view that circumstantial evidence leading to the guilt of
the appellant have not been established by the prosecution, the judgment of the
conviction and sentence, therefore, cannot be sustained. They are set aside accordingly.
We can only record our distress that even in a case of this nature, appellant had to remain
in custody for a period of four years.
55. The appeal is allowed. The appellant is directed to be set at liberty forthwith unless
wanted in connection with any other case.
Appeal allowed.
AIR 2008 SUPREME COURT 2212 "Williams v. Lourdusamy"
(From : Madras)*
Civil Appeal Nos.2894-2895 of 2008 (arising out of SLP (C) Nos. 153-154 of 2007), D/-
24 -4 -2008.
Williams v. Lourdusamy and Anr.
Civil P.C. (5 of 1908), S.11 - RES JUDICATA - INJUNCTION - POSSESSION -
DECLARATION OF TITLE - Res judicata - Applicability - Suit for permanent injunction
against interference with possession - Finding as to possession of plaintiff and grant of
decree - Does not bar suit for declaration of title and recovery of possession - It is one
thing to say that person is in possession of land in suit and it is another thing to say that
he has a right to possess.
S. A. Nos. 1759-1760 of 1991, D/-19-08-2002 (Mad), Reversed. (Paras 12, 13, 14)
1993 AIR SCW 3792 : AIR 1994 SC 152 14
AIR 1979 SC 193 : 1978 Lab IC 1672 (Ref.) 11
AIR 1965 Mad 355 14
V. Prabhakar, Ramjee Prasad, M.K.D. Namboodiri, for Appellant.
* S. A. Nos. 1759-1760 of 1991, D/- 19-8-2002 (Mad.)
Judgement
2. Whether principle of res-judicata is applicable to the facts and circumstances of this
case, is the question involved herein.
The basic fact of the matter is not in dispute. Second respondent was the owner of the
properties. He by reason of a registered Deed of Sale dated 25-11-1987 transferred his
right, title and interest in favour of the appellant.
3. First respondent, however, filed a suit against the appellant herein in the Court of
District Munsif, Thiruvaiyaru praying for a decree for permanent injunction alleging that
the land in suit admeasuring 3 cents was the subject matter of an oral agreement of sale
by and between himself and the second respondent herein. It was contended that the
second respondent had been in possession of the said land in terms of a patta executed
under the Kudiyiruppu Act
@page-SC2213
being Act 40 of 1971.
The contention of the appellant, on the other hand, was that he had been put in possession
of the suit land by the second respondent in terms of the aforementioned deed of sale
dated 25-11-1987.
4. The learned Trial Judge in the said suit, inter alia framed the following issues.
"i) Whether on the date of the suit the plaintiff was in possession of the suit property?
ii) Whether the plaintiff is entitled to the relief of permanent injunction as prayed for?
iii) To what else (sic) relief, the plaintiff is entitled to?"
5. The question as to whether the respondent had been put in possession in terms of an
oral agreement of sale was not in issue. Respondent No. 2 as noticed hereinbefore was
not impleaded as a party. A decree for specific performance of contract was not prayed
for in the said suit. Neither any averment was made nor in law the same could be made
that he had been put in possession by way of a part performance of contract as envisaged
under Section 53A of the Transfer of Property Act.
6. The learned Trial Judge, however, held that the first respondent was in possession of
the land in suit as on the date of the institution of the suit and thus granted a decree for
permanent injunction.
7. Appellant thereafter filed a suit for declaration of title and recovery of possession,
which was marked as O.S. No. 182 of 1989. Both the respondents herein were impleaded
their as parties therein. First respondent herein also filed a suit for specific performance
of contract against the appellant as also the respondent No. 2. The said suit was registered
as O.S. No. 93 of 1990.
Both O.S. No. 182 of 1989 and O.S. No. 93 of 1990 were consolidated. By a judgment
and order dated 7-11-1990, the learned Trial Judge while dismissing the aforementioned
suit for specific performance of contract filed by the first respondent allowed the suit of
the appellant for declaration of his title and confirmation of possession.
8. Two appeals were preferred there-against by the first respondent which by reason of a
judgment and order dated 28-8-1991 were dismissed by District Judge, Thanjavur (West).
First respondent preferred two second appeals before the High Court. The High Court
opined that the only substantial question of law raised by the appellant before it
(respondent No. 1 herein) was the applicability of the principles of Res-Judicata.
Relying upon some stray observations made by the learned Trial Judge in the said O.S.
No. 402 of 1987, it was held that as possession of the property had been delivered on the
basis of a purported oral agreement of sale, the principles of res-judicata would be
attracted.
9. Mr. V. Prabhakar, the learned counsel appearing on behalf of the appellant would
submit that as no issue was framed in regard to the purported oral agreement of sale by
and between respondent No. 1 and 2 nor any specific finding having been arrived at by
the learned Trial Judge in the said O.S. No. 402 of 1987, the impugned judgment is
wholly unsustainable.
10. Section 11 of the Code of Civil Procedure provides that the Court will have no
jurisdiction to try a suit or issue in which the matter directly and substantially in issue had
been in issue in a former suit between the same parties.
Explanation 8 appended thereto reads as under :
"Section 11. Res judicata - No Court shall try any suit or issue in which the matter
directly and substantially in issue has been directly and substantially in issue in a former
suit between the same parties, or between parties under whom they or any of them claim,
litigating under the same title, in a Court competent to try such subsequent suit or the suit
in which such issue has been subsequently raised, and has been heard and finally decided
by such Court."
Explanation I ***** **** *****
Explanation II ***** **** *****
********************
Explanation VIII. An issue heard and finally decided by a court of limited jurisdiction,
competent to decide such issue, shall operate as res judicata in a subsequent suit,
notwithstanding that such court of limited jurisdiction was not competent to try such
subsequent suit or the suit in which such issue has been subsequently raised."
11. The principles of res-judicata although provide for a salutary principle that no person
shall be harassed again and again, have its own limitations. In O.S. No. 402 of 1987, the
respondent No. 2 was not impleaded
@page-SC2214
as a party. In his absence therefore, the issue as to whether respondent No. 2 had entered
into an oral agreement of sale or not could not have been adjudicated upon. The said
Court had no jurisdiction in that behalf. If that was decided in the said suit, the findings
would have been nullities.
[See Chief Justice of Andhra Pradesh and another etc. vs. L.V.A. Dikshitulu and others,
AIR 1979 SC 193 at 198 and Hasham Abbas Sayyad vs. Usman Abbas Sayyad and Ors.
(2007) 2 SCC 355]. 2007 AIR SCW 1011
12. As a matter of fact even such an issue was not framed. The High Court, therefore, in
our opinion posed unto itself a wrong question. In a suit for permanent injunction, the
Court had rightly proceeded on the basis that on the date of the institution of the suit, the
first respondent was in possession of the disputed land or not. It was not required to enter
into any other question. It, in fact, did not.
13. It is one thing to say that a person is in possession of the land in suit and it is another
thing to say that he has a right to possess pursuant to or in furtherance of an agreement
for sale which would not only bind the vendor but also bind the subsequent predecessor.
Had such an issue been framed, the appellant or the respondent No. 2 could have
contended that Section 53A of the Transfer of Property Act had no application. For
application of Section 53A of the Act, an agreement has to be entered into in writing. The
said section provides for application of an equitable doctrine of part performance.
Requisite ingredients therefor must be pleaded and proved.
14. A competent Court of law has dismissed the suit for specific performance of contract
filed by the first respondent opining that the respondent had failed to prove the existence
of an oral agreement. If the suit for specific performance of contract had not been decreed
in favour of the first respondent, the question of his continuing to remain in possession in
part performance of contract would not arise.
Appellant herein filed a suit for declaration of title and recovery of possession. He
proceeded on the basis that the first respondent was in possession.
The learned Trial Judge and the first Appellate Court, in our opinion, have rightly held
that the principle of res judicata was not attracted in this case.
In Sajjadanashin Sayed MD. B.E. EDR. (D) by L.Rs. vs. Musa Dadabhai Ummer and
others [(2000) 3 SCC 350] this Court considered the cases where in spite of specific issue
and an adverse finding in an earlier suit, the same was not treated as res judicata being
purely incidental or auxiliary or collateral to the main issue stating : 2000 AIR
SCW 901, (Para 25)
"24. Before parting with this point, we would like to refer to two more rulings. In
Sulochana Amma v. Narayanan Nair, this Court held that a finding as to title given in an
earlier injunction suit would be res judicata in a subsequent suit on title. On the other
hand, the Madras High Court, in Vanagiri Sri Selliamman Ayyanar
Uthirasomasundareswarar Temple v. Rajanga Asari, held (see para 8 therein) that the
previous suit was only for injunction relating to the crops. Maybe, the question of title
was decided, though not raised in the plaint. In the latter suit on title, the finding in the
earlier suit on title would not be res judicata as the earlier suit was concerned only with a
possessory right. These two decisions, in our opinion, cannot be treated as being contrary
to each other but should be understood in the context of the tests referred to above. Each
of them can perhaps be treated as correct if they are understood in the light of the tests
stated above. In the first case decided by this Court, it is to be assumed that the tests
above-referred to were satisfied for holding that the finding as to possession was
substantially rested on title upon which a finding was felt necessary and in the latter case
decided by the Madras High Court, it must be assumed that the tests were not satisfied.
As stated in Mulla, it all depends on the facts of each case and whether the finding as to
title was treated as necessary for grant of an injunction in the earlier suit and was also the
substantive basis for grant of injunction. In this context, we may refer to Corpus Juris
Secundum (Vol. 50, para 735, p. 229) where a similar aspect in regard to findings on
possession and incidental findings on title were dealt with. It is stated : 1993 AIR
SCW 3792
AIR 1965 SC 355
"Where title to property is the basis of the right of possession, a decision on the question
of possession is res judicata on the question of title to the extent that adjudication
@page-SC2215
of title was essential to the judgment; but where the question of the right to possession
was the only issue actually or necessarily involved, the judgment is not conclusive on the
question of ownership or title."
Following the principle of law as enunciated in the aforementioned decision, we are of
the opinion that the principle of res judicata is not attracted to the facts of the case.
15. For the reasons aforementioned, the impugned judgment cannot be sustained which is
set aside accordingly. Appeal is allowed. There shall, however, be no order as to costs.
Appeal allowed.
AIR 2008 SUPREME COURT 2215 "Mumbai Agri. Produce Market Committee v.
Hindustan Lever Ltd."
(From : Bombay)*
-2008.
Mumbai Agri. Produce Market Committee and Anr. v. Hindustan Lever Ltd. and Ors.
Maharashtra Agricultural Produce Marketing (Regulations) Act (20 of 1964), S.34B -
AGRICULTURAL PRODUCE - Supervision charges - Distinct from market fee -
Premise for levy is service rendered by supervising, buying and selling of commodity -
No such service found to be rendered - Market Committee not entitled to recover the
same. (Paras 8, 10, 14, 15, 16, 18)
2007 AIR SCW 3603 (Ref.) 14
2006 AIR SCW 3396 : AIR 2006 SC 2550 13
Ramakant P. Bhatt, Sr. Advocate, Y.R. Naik and Rakesh K. Sharma, for Appellants;
Gopal Jain, R.N. Karanjawala, Mrs. Manik Karanjawala, Ms. Ruby Singh Ahuja, Manu
Agarwal and Ms. Asha Gopalan Nair, for Respondents.
* W. P. No. 1341 of 1998, D/- 16-6-2006 (Bom.)
Judgement
2. Appellant is a Market Committee constituted under the Maharashtra Agricultural
Produce Marketing (Regulation) Act, 1963 (for short, 'the Act'). First respondent herein
deals in Edible Oils and Vanaspati. By reason of a Notification dated 25-9-1987, the State
of Maharashtra in exercise of its power under Section 62 of the said Act added some
items in the Schedule appended thereto such as sugar, dry fruits, edible oils and vanaspati
to the Schedule of the Act. Appellant No.1, Market Committee, started collecting market
fee as also supervision charges on all notified agricultural produces marketed on
wholesale basis. The wholesale market in respect of condiments, spices, dry fruits etc.
was shifted from Greater Bombay to New Bombay on and from 1-1-1991 where a huge
market had been constructed by the appellants.
3. Respondents allegedly, despite the applicability of the provisions of the said Act as also
the Notification dated 25-9-1987, did not get itself registered thereunder contending that
'Vanaspati' had not been included in the Schedule appended thereto. Some of the traders
dealing in edible oil had also obtained exemption from payment of market fee and
supervision charges for a short time. Such exemption granted was, however, withdrawn.
Various litigations were initiated before the Bombay High Court questioning the validity
of the said notification as also levy of market fee and supervision charges by the
Committee.
4. Respondent Nos. 1 and 2 also filed writ petitions in the year 1988 contending that they
were not liable to pay any market fee or supervision charges.
5. The High Court by reason of a judgment and order dated 16-6-2006 although rejected
the contention that the respondents were not liable to pay any market fee, opined that the
appellant was not entitled to collect supervision charges. Supervision charges as also
interest accrued thereon were payable to the State Government.
The High Court in its judgment held : "The impugned orders which have been passed
either during the pendency of the petition or before the petition was filed are silent on the
quantum of supervision charges paid by the respondent No. 1-Committee to the State
Government in respect of the sale/distribution of vanaspati produced by the petitioners
and marketed in the market area of respondent No. 1, though not from the market yard. In
the absence of the petitioners having an outlet or a depot or a trading centre in the market
yard of respondent No. 1, the other place is only
@page-SC2216
the premises of the petitioners as admittedly the respondent No. 1 has not established any
other collection centres or subsidiary markets by exercising powers under Section 5 and
Section 30A of the Act. We are, therefore, of the considered view that the respondent No.
1-Committee has no powers to cause recovery of supervision charges from the petitioners
as at present and the impugned orders to that extent are unsustainable."
In regard to the payment of interest, it was held :
"We are afraid Clause (y) below Rule 120 does not come to the rescue of the Market
Committee in support of its case that it has the power to charge interest varying from
12% to 21% on the delayed dues of market fees and supervision charges under bye-law
No. 14(A). Section 31 as well as sections 34A to 34C clearly provide for only penal
charges and bye-law No. 14 cannot be termed so as to cover condition of trading and
marketing in the market area. We have also noticed that on issuance of the notice by the
Market Committee, the petitioners have taken due steps and during the pendency of the
petitions or before the impugned orders for recovery were passed, they have deposited
certain sums. In both the petitions, it is not a case of inordinate delay in responding to the
demands and, in fact, the demands have been substantially met within few months. No
reasons have been given in the impugned orders as to why the Market Committee felt it
appropriate to recover interest and not the penal charges from the petitioners. We,
therefore, hold that the respondent No. 1 has no powers to charge interest at the rate of
12% or any higher rate upto 21% on the delayed payment of market fees and supervision
charges and it was not even otherwise justified to levy such charges in the instant cases."
6. Mr. Bhatt, learned senior counsel appearing on behalf of the appellant, would submit
that the question as to whether any supervision charges were payable or not had not been
raised by the respondents and in that view of the matter, the High Court committed a
serious error in arriving at the aforementioned conclusion.
7. Mr. Gopal Jain, learned counsel for the respondents, however, would support the
impugned judgment.
8. Levy of market fee and supervision charges stand on different footings. Whereas
market fee is payable on the transactions carried out in the market area, the power to
realize the supervision charges is vested in the State. For the said purpose, it has to issue a
general or special order. Staff must be appointed by the State for the purpose of carrying
out supervision of the market areas. Only when the pre-requisites contained in Section
34A of the Act are fulfilled, the question of recovery of such charges from the person
purchasing such produce in such market or market area would arise. The costs of
supervision is to be calculated by the Market Committee in such a manner so as to enable
it to levy the said fee under Section 31. Sub-section (2) of Section 34B of the Act
provides that the cost of supervision collected by a Market Committee shall be paid to the
State Government in the prescribed manner.
9. The fact that Vanaspati is an item which has validly been added to the Schedule
appended to the Act and the Rules framed thereunder is now not in dispute. The judgment
of the High Court rendered in this regard has been accepted by the respondent. It
deposited the amount of market fee on various dates as detailed herein below :
"Date of Payment Amount Deposited

2-03-1998 Rs. 4,00,000/-
31-03-1998 Rs. 18,00,000/-
21-07-1998 Rs. 62,84,779/-
7-09-1998 Rs. 6,000/-"
10. It, however, appears that the validity of the levy and collection of the supervision
charges was specifically raised by the respondent herein on the ground that no service
whatsoever of any kind was being rendered in the said market area. The High Court, by
reason of its judgment, opined that the costs for supervision were incidental charges to be
recovered and paid to the Government in respect of the staff employed by it. It is not a
power vested in the Committee and, thus, the conditions precedent therefor were required
to be shown to be existing, i.e., that the Government had employed staff and had been
rendering services by way of supervising the buying and selling of the agricultural
produces in the market area.
11. The power to recover the charges for the supervisory staff employed at the expenses
of a section of the industry is not a general power. It is provided for specifically in terms
of the Act. When the statute mandates
@page-SC2217
that the cost of supervision would be borne by the licensee, it does not constitute levy of
tax. It may be a part of contract. It may have to be paid as a liability to comply with the
provisions of the statute and statutory Rules validly made. The cost has to be determined.
It may have to be apportioned. It cannot be levied or calculated in such a manner so as to
cause unjust enrichment in favour of the State.
12. The quantum of recovery, however, need not be based on mathematical exactitude as
such cost is levied having regard to the liability of all the licensees or a section of them. It
would, however, require some calculation.
13
. A finding of fact has been arrived at by the High Court that no service was being
rendered by the State. If no service is being rendered, even no fee could have been levied.
It has been so held by a Constitution Bench of this Court in Jindal Stainless Ltd. and Anr.
v. State of Haryana and Ors. [(2006) 7 SCC 241] in the following terms : 2006 AIR
SCW 3396, (Paras 38 and 39)
"40. Tax is levied as a part of common burden. The basis of a tax is the ability or the
capacity of the tax payer to pay. The principle behind the levy of a tax is the principle of
ability or capacity. In the case of a tax, there is no identification of a specific benefit and
even if such identification is there, it is not capable of direct measurement. In the case of
a tax, a particular advantage, if it exists at all, is incidental to the State's action. It is
assessed on certain elements of business, such as, manufacture, purchase, sale,
consumption, use, capital, etc. but its payment is not a condition precedent. It is not a
term or condition of a licence. A fee is generally a term of a licence. A tax is a payment
where the special benefit, if any, is converted into common burden.
41. On the other hand, a fee is based on the "principle of equivalence". This principle is
the converse of the "principle of ability" to pay. In the case of a fee or compensatory tax,
the "principle of equivalence" applies. The basis of a fee or a compensatory tax is the
same. The main basis of a fee or a compensatory tax is the quantifiable and measurable
benefit. In the case of a tax, even if there is any benefit, the same is incidental to the
government action and even if such benefit results from the government action, the same
is not measurable. Under the principle of equivalence, as applicable to a fee or a
compensatory tax, there is an indication of a quantifiable data, namely, a benefit which is
measurable."
14. The principle of equivalence, therefore, is the foundation for levy of a fee. It must be
held to be the foundation of a statutory charge like supervisory charges. It was for the
State to prove it. Once the State has failed to bring record the foundational facts, it is not
for the appellant who is merely a statutory authority for collecting the same as an agent of
the State to contend that the same was payable. The State of Maharashtra is not before us.
In Aashirwad Films v. Union of India (UOI) and Ors. [(2007) 6 SCC 624], it has been
"It is also required to be realized that imposition of reasonable tax is a facet of good
governance."
15. Cost of supervision, if borne by the State has to be recovered by it. The burden was,
therefore, on the State to justify the levy. Even the general or special order, if any,
purported to have been issued by the State has not been brought on record. On what basis,
the supervision charges were being calculated is not known. The premise for levy or
recovery of the amount of supervisory charges is not founded on any factual matrix. Only
the source of the power has been stated but the basis for exercise of the power has not
been disclosed.
16. We, therefore, are of the opinion that there is no infirmity in the impugned judgment.
17. So far as the question of payment of interest is concerned, it must be referable to the
statute. When the statute controls the levy, the interest payable thereupon, as envisaged
thereunder must also govern the field. The general principle of restitution may not apply
in this case.
18. The High Court having exercised its discretionary jurisdiction in the matter, we do not
find any reason to take a different view. The impugned judgment, therefore, needs no
interference. The appeal is dismissed with no order as to costs.
Appeal dismissed.
@page-SC2218
AIR 2008 SUPREME COURT 2218 "Oriental Insurance Co. :Ltd. v. Zaharulnisha"
(From : Allahabad)*
-2008.
Oriental Insurance Co. v. Zaharulnisha and Ors.
(A) Motor Vehicles Act (59 of 1988), S.149(1) - MOTOR VEHICLES - INSURANCE -
Liability of insurer - Third party risks - Statute raises legal fiction that insurer would be
deemed to be a judgment-debtor in respect of liability. (Para 14)
(B) Motor Vehicles Act (59 of 1988), S.149(1) - MOTOR VEHICLES - INSURANCE -
Liability of insurer - Insurer can defend action on any of grounds mentioned in S.140(1).
(Para 15)
(C) Motor Vehicles Act (59 of 1988), S.149(4) and S.149(5) - MOTOR VEHICLES -
INSURANCE - Liability of insurer - Violation of provisions, of Act - May result in
absolving insurers - But same may not necessarily hold good in case of third party -
Liability of insurer to satisfy decree passed in favour of third party is statutory.
Where the insurers, relying upon the provisions of violation of law by the assured, take
an exception to pay the assured or a third party, they must prove a wilful violation of the
law by the assured. In some cases, violation of criminal law, particularly violation of the
provisions of the MV Act, may result in absolving the insurers but, the same may not
necessarily hold good in the care of a third party. In any event, the exception applies only
to acts done intentionally or 'so recklessly as to denote that the assured did not care what
the consequences of his act might be'. The provisions of sub-secs. (4) and (5) of S. 149 of
the MV Act may be considered as to the liability of the insurer to satisfy the decree at the
first instance. The liability of the insurer is a statutory one. The liability of the insurer to
satisfy the decree passed in favour of a third party is also statutory. (Para 16)
(D) Motor Vehicles Act (59 of 1988), S.10(2), S.149 - MOTOR VEHICLES -
INSURANCE - Liability of insurer - Deceased died in road accident when scooterist hit
his bicycle - Accident occurred due to rash and negligent driving of scooter - Driver of
scooter had admittedly no valid licence to drive vehicle - He was holding licence for
driving Heavy Motor Vehicle only - Act of driving totally different class of vehicle was in
violation of S.10(2) - Insurance Company cannot be held liable - However, it shall satisfy
award and recover amount from owner.
2004 AIR SCW 212, 2007 AIR SCW 7948, Relied on.
2004 AIR SCW 663, Ref.
F. A. F. O. No. 1760 of 2006, D/-12-07-2006 (All), Reversed. (Paras 18, 19)
2007 AIR SCW 7948 : AIR 2008 SC 767 : 2008 (1) AIR Kar R 485 (Rel. on) 19
2004 AIR SCW 663 : AIR 2004 SC 1531 (Ref.) 14
M.K. Dua, Kishore Rawat, for Appellant; Girjesh Kumar Mall, Amit Pawan, Manish R.
Sinha, T. Mahipal, for Respondents.
* F. A. F. O. No. 1760 of 2006, D/- 12-7-2006 (All).
Judgement
LOKESHWAR SINGH PANTA, J. :- Leave granted.
2. This appeal is against the judgment dated 1st July, 2006 passed by the High Court of
Judicature at Allahabad whereby and whereunder, appeal filed by the Oriental Insurance
Company Limited challenging the award dated 26-04-2006 of the Motor Accident Claims
Tribunal/Additional District Judge Khushi Nagar in MAC No. 98/ 2002, has been
dismissed.
3. Briefly stated the facts leading to the filing of the appeal are as under :-
On 23-07-2001 at about 6:00 p.m. one Shukurullah was going from Kasya Courts to his
village Shivpur on a bicycle. A two wheeler scooter, bearing registration No. UP 57 -
5901, being driven by one Ram Surat in a rash and negligent manner hit Shukurullah near
Sapha P.S. Kasya and as a result thereof, Shukurullah sustained grievous injuries and
died. The ill-fated scooter was owned by Vakilrao-respondent No. 8 herein. The legal
representatives of deceased Shukurullah lodged a Claim Petition No. 98/2002 before the
Motor Accident Claims Tribunal, Khushi Nagar/Additional District Judge and they
claimed compensation
@page-SC2219
for the death of their sole bread earner.
4. By its award dated 26-04-2006, Motor Accident Claims Tribunal held that the accident
was due to rash and negligent driving of the scooter by Ram Surat. It awarded a sum of
Rs. 3,01,500/- as compensation with interest at 9% per annum in favour of the claimants
and against the second respondent, owner of the scooter and appellant - insurance
company. The appellant-insurance company was directed to pay the amount of
compensation. The appellant-insurance company filed an appeal before the High Court.
Before the High Court it was contended that as the driver Ram Surat was holding licence
for driving Heavy Motor Vehicle (HMV) only, therefore, he had no valid licence to drive
a two wheeler scooter which is totally a different class of vehicle in terms of Section 10
of the Motor Vehicles Act, 1988 [hereinafter referred to as 'the MV Act']. It was
contended that in view of the breach of the provisions of the MV Act, the appellant-
insurance company cannot be held liable to satisfy the award in terms of Section 149(2)
of the MV Act.
5. The High Court without noticing the contention of the appellant-insurance company
passed short and unreasoned order, which reads as under :-
"Heard Sri S.C. Srivastava, learned counsel for the appellant and perused the record.
Having considered the submission of the learned counsel for the appellant, we are of the
view that this appeal has got no force and is dismissed summarily. However, the statutory
deposits so made before this Court be remitted to the Claims Tribunal within three
weeks."
6. Hence, the insurance company has filed this appeal.
7. Despite service of notice, respondent No. 2-owner of the vehicle has chosen not to put
in appearance and contest the appeal.
8. Shri M.K. Dua, learned counsel for the appellant-insurance company contended that
the High Court grossly erred in dismissing the statutory appeal of the insurance company
without considering the legal question involved in the present case. He contended that the
insurance company cannot be held liable to pay the amount of compensation for the
default of the driver of the scooter who was not holding a valid licence and the liability to
indemnify claimants is the responsibility of the owner of the vehicle involved in the
accident.
9. Shri Girijesh Kumar Mall, learned counsel appearing on behalf of the claimants,
contended that the claimants should not be made to suffer for the inter se dispute between
the appellant-insurance company and respondent No. 8-owner of the vehicle in regard to
their liability to pay the amount of compensation to the claimants. According to the
learned counsel, the amount of compensation as directed by the Tribunal has to be
released to the claimants and the appellant-insurance company can realise the said
amount from the owner of the vehicle in accordance with law.
10. In order to appreciate the rival contentions of the learned counsel for the parties, the
legal question that needs to be considered by us is : Whether the appellant-insurance
company could be held liable to pay the amount of compensation for the default of the
scooterist who was not holding licence for driving two wheeler scooter but had driving
licence of different class of vehicle in terms of Section 10 of the MV Act?
11. For the purpose of determination of the above said issue, we may notice relevant
provisions of the MV Act. Section 2 of the MV Act deals with definitions. Sub-section 9
of Section 2 defines 'driver' to include -
'in relation to a motor vehicle which is drawn by another motor vehicle, the person who
acts as a steersman of the drawn vehicle.'
Sub-section (10) of Section 2 defines 'driving licence' to mean -'the licence issued by a
competent authority under Chapter II authorizing the person specified therein to drive,
otherwise than as a learner, a motor vehicle or a motor vehicle of any specified class or
description.'
Section 3 in Chapter II of the MV Act prescribes necessity for driving licence which
reads as under :-
"(1) No person shall drive a motor vehicle in any public place unless holds an effective
driving licence issued to him authorising him to drive' the vehicle; and no person shall so
drive a transport vehicle [other than 1[a motor cab or motor cycle] hired for his own use
or rented under any scheme made under sub-section (2) of section 75] unless his driving
licence specifically entitled him to do so.
1. Subs, by Act 54 of 1994, S. 3 for "a motor cab" (w.e.f. 14-11-1994).
@page-SC2220
(2) The conditions subject to which subsection (1) shall not apply to a person receiving
instructions in driving a motor vehicle shall be such as may be prescribed by the Central
Government."
12. Section 5 prescribes that no owner or person in charge of a motor vehicle shall cause
or permit any person who does not satisfy the provisions of Section 3 or Section 4 to
drive the vehicle. Driving licence has to be granted by the licencing authority having
jurisdiction in the area to any person who is not, for the time being, disqualified of
holding or obtaining a driving licence in terms of Section 9 of the MV Act. Section 10
prescribes forms and contents of the licences to drive which reads as under :-
"(1) Every learner's license and driving licence, except a driving licence issued under
Section 18, shall be in such form and shall contain such information as may be prescribed
by the Central Government.
(2) A learner's licence or, as the case may be, driving licence shall also be expressed as
entitling the holder to drive a motor vehicle of one or more of the following classes,
namely :-
(a) motor cycle without gear;
(b) motor cycle with gear;
(c) invalid carriage;
(d) light motor vehicle;
2[e) transport vehicle;
(i) roadroller;
(j) motor vehicle of a specified description."
2. Subs. by Act 54 of 1994, S. 8 for clause (e) to (h) (w.e.f. 14-11-1994).
13. Driving licence has to be issued by the licencing authority on presentation of the
application in Form IV as prescribed by Rule 14 of the Motor Vehicles Rules, 1989. The
application form shall be accompanied by documents specified in the said Rule. The
applicant has to apply for a licence in terms of Form IV enabling him to drive a particular
vehicle of the description as specified in Section 10 of the MV Act, 1988. The licencing
authority shall grant driving licence to the applicant in terms of Form VI and Rule 16(1)
of the Central Motor Vehicles Rules, 1989.
14. Sub-section (1) of Section 149 casts a liability upon the insurer to pay to the person
entitled to the benefit of the decree "as if he was the judgment debtor", that is, the Statute
raises a legal fiction to the effect that for the said purpose the insurer would be deemed to
be a judgment-debtor in respect of the liability of the insurer in respect of third party
risks.
15
. It is beyond any doubt or dispute that under Section 149 (1) of the MV Act, insurer, to
whom notice of bringing of any proceeding for compensation has been given, can defend
the action on any of the grounds mentioned therein. A three-Judge Bench of this Court in
National Insurance Company Limited v. Swaran Singh [(2004) 3 SCC 297] has
extensively dealt with the meaning, application and interpretation of various provisions,
including Ss. 3(2), 4(3), 10(2) and 149 of the MV Act. In paragraph 47 of the judgment,
the learned Judges have held that if a person has been given a licence for a particular type
of vehicle as specified therein, he cannot be said to have no licence for driving another
type of vehicle which is of the same category but of different type. As for example, when
a person is granted a licence for driving a light motor vehicle he can drive either a car or
a jeep and it is not necessary that he must have driving licence both for car and jeep
separately. In paragraph 48, it is held as under : 2004 AIR SCW 663
Para 43 of AIR SCW
"Furthermore, the insurance company with a view to avoid its liabilities is not only
required to show that the conditions laid down under Section 149(2) (a) or (b) are
satisfied but is further required to establish that there has been a breach on the part of the
insured. By reason of the provisions contained in the 1988 Act, a more extensive remedy
has been conferred upon those who have obtained judgment against the user of a vehicle
and after a certificate of insurance is delivered in terms of Section 147(3). After a third
party has obtained a judgment against any person insured by the policy in respect of a
liability required to be covered by Section 145, the same must be satisfied by the insurer,
notwithstanding that the insurer may be entitled to avoid or to cancel the policy or may in
fact have done so. The same obligation applies in respect of such a liability but who
would have been covered if the policy had covered the liability of all persons, except that
in respect of liability for death or bodily injury."
16. The judgment proceeds to hold that
@page-SC2221
under the MV Act, holding of a valid driving licence is one of the conditions of contract
of insurance. Driving of a vehicle without a valid licence is an offence. However, the
question herein is whether a third party involved in an accident is entitled to the amount
of compensation granted by the Motor Accidents Claims Tribunal although the driver of
the vehicle at the relevant time might not have a valid driving licence but would be
entitled to recover the same from the owner or driver thereof. It is trite that where the
insurers, relying upon the provisions of violation of law by the assured, take an exception
to pay the assured or a third party, they must prove a wilful violation of the law by the
assured. In some cases, violation of criminal law, particularly violation of the provisions
of the MV Act, may result in absolving the insurers but, the same may not necessarily
hold good in the case of a third party. In any event, the exception applies only to acts
done intentionally or "so recklessly as to denote that the assured did not care what the
consequences of his act might be". The provisions of sub-sections (4) and (5) of Section
149 of the MV Act may be considered as to the liability of the insurer to satisfy the
decree at the first instance. The liability of the insurer is a statutory one. The liability of
the insurer to satisfy the decree passed in favour of a third party is also statutory.
17. The learned judges having considered the entire material and relevant provisions of
the MV Act and conflict of decisions of various High Courts and this Court on the
question of defences available to the insurance companies in defending the claims of the
victims of the accident arising due to the harsh and negligent driving of the vehicle which
is insured with the insurance companies, proceeded to record the following summary of
findings.
(i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of
vehicles against third party risks is a social welfare legislation to extend relief by
compensation to victims of accidents caused by use of motor vehicles. The provisions of
compulsory insurance coverage of all vehicles are with this paramount object and the
provisions of the Act have to be so interpreted as to effectuate the said object.
(ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or
Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a)(ii) of
the said Act.
(iii) The breach of policy condition, e.g. disqualification of driver or invalid driving
licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be
proved to have been committed by the insured for avoiding liability by the insurer. Mere
absence, fake or invalid driving licence or disqualification of the driver for driving at the
relevant time, are not in themselves defences available to the insurer against either the
insured or the third parties. To avoid its liability towards insured, the insurer has to prove
that the insured was guilty of negligence and failed to exercise reasonable care in the
matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed
driver or one who was not disqualified to drive at the relevant time.
(iv) The insurance companies are, however, with a view to avoid their liability must not
only establish the available defence(s) raised in the said proceedings but must also
establish 'breach' on the part of the owner of the vehicle; the burden of proof wherefor
would be on them.
(v) The court cannot lay down any criteria as to how said burden would be discharged,
inasmuch as the same would depend upon the facts and circumstance of each case.
(vi) Even where the insurer is able to prove breach on the part of the insured concerning
the policy condition regarding holding of a valid licence by the driver or his qualification
to drive during the relevant period, the insurer would not be allowed to avoid its liability
towards insured unless the said breach or breaches on the condition of driving licence
is/are so fundamental as are found to have contributed to the cause of the accident. The
Tribunals in interpreting the policy conditions would apply "the rule of main purpose"
and the concept of "fundamental breach" to allow defences available to the insured under
Section 149(2) of the Act.
(vii) The question as to whether the owner has taken reasonable care to find out as to
whether the driving licence produced by the driver, (a fake one or otherwise), does not
fulfil the requirements of law or not will have to be determined in each case.
(viii) If a vehicle at the time of accident was driven by a person having a learner's licence,
the insurance companies would be liable to satisfy the decree.
@page-SC2222
(ix) The claims tribunal constituted under Section 165 read with Section 168 is
empowered to adjudicate all claims in respect of the accidents involving death or of
bodily injury or damage to property of third party arising in use of motor vehicle. The
said power of the tribunal is not restricted to decide the claims inter se between claimant
or claimants on one side and insured, insurer and driver on the other. In the course of
adjudicating the claim for compensation and to decide the availability of defence or
defences to the insurer, the Tribunal has necessarily the power and jurisdiction to decide
disputes inter se between insurer and the insured. The decision rendered on the claims
and disputes inter se between the insurer and insured in the course of adjudication of
claim for compensation by the claimants and the award made thereon is enforceable and
executable in the same manner as provided in Section 174 of the Act for enforcement and
execution of the award in favour of the claimants.
(x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion
that the insurer has satisfactorily proved its defence in accordance with the provisions of
Section 149(2) read with Subsection (7), as interpreted by this Court above, the Tribunal
can direct that the insurer is liable to be reimbursed by the insured for the compensation
and other amounts which it has been compelled to pay to the third party under the award
of the tribunal. Such determination of claim by the Tribunal will be enforceable and the
money found due to the insurer from the insured will be recoverable on a certificate
issued by the tribunal to the Collector in the same manner under Section 174 of the Act as
arrears of land revenue. The certificate will be issued for the recovery as arrears of land
revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails
to deposit the amount awarded in favour of the insurer within thirty days from the date of
announcement of the award by the tribunal.
(xi) The provisions contained in Sub-section (4) with proviso thereunder and Subsection
(5) which are intended to cover specified contingencies mentioned therein to enable the
insurer to recover amount paid under the contract of insurance on behalf of the insured
can be taken recourse of by the Tribunal and be extended to claims and defences of
insurer against insured by, relegating them to the remedy before, regular court in cases
where on given facts and circumstances adjudication of their claims inter se might delay
the adjudication of the claims of the victims.
18. In the light of the above-settled proposition of law, the appellant-insurance company
cannot be held liable to pay the amount of compensation to the claimants for the cause of
death of Shukurullah in road accident which had occurred due to rash and negligent
driving of scooter by Ram Surat who admittedly had no valid and effective licence to
drive the vehicle on the day of accident. The scooterist was possessing driving licence of
driving HMV and he was driving totally different class of vehicle which act of his is in
violation of Section 10(2) of the MV Act.
19
. In the result, the appeal is allowed to the limited extent and it is directed that the
appellant-insurance company though not liable to pay the amount of compensation, but in
the nature of this case it shall satisfy the award and shall have the right to recover the
amount deposited by it along with interest from the owner of the vehicle, viz. respondent
No. 8, particularly in view of the fact that no appeal was preferred by him nor has he
chosen to appear before this Court to contest this appeal. This direction is given in the
light of the judgments of this Court in National Insurance Co. Ltd. v. Baljit Kaur and
Others [(2004) 2 SCC 1] and Deddappa and Others v. Branch Manager, National
Insurance Co. Ltd. [(2008) 2 SCC 595]. 2004 AIR SCW 212
2007 AIR SCW 7948
20. The appeal is, accordingly, allowed in the aforesaid terms with no order as to costs.
Appeal allowed.
AIR 2008 SUPREME COURT 2222 "Viswanathan v. State"
(From : 2004 Cri LJ (NOC) 21 : 2004 (1) Mad LW (Cri) 217)
Criminal Appeal No. 97 of 2004 WITH Crl. A. Nos. 100, 99, 98, 629 of 2004 and 785 of
2005, D/- 29 -4 -2008.
Viswanathan and Ors. v. State, Rep. by Inspector of Police, Tamil Nadu.
(A) Evidence Act (1 of 1872), S.9 - IDENTIFICATION PARADE - WITNESS - RAPE -
Test identification parade - Necessity - Victim of gang rape had named accused Nos. 1 to
4 in FIR - But she named only
@page-SC2223
accused Nos. 1 to 3 in her deposition - She had not named accused Nos. 5 and 6 either in
F.I.R. or in her deposition - Witness had also named only accused No. 1 - Test
Identification Parade was therefore required to be held for identification of accused Nos.
4, 5 and 6 - In absence thereof, accused Nos. 4, 5 and 6 cannot be held guilty of offence.
Penal Code (45 of 1860), S.376.
2003 AIR SCW 4779, Relied on. (Paras 14, 15, 16)
(B) Penal Code (45 of 1860), S.376(2)(g), Expln.I - RAPE - COMMON INTENTION -
Gang rape - Common intention - Same can be gathered from very fact that accused
persons came on cycles and dashed with cycle of victim's brother before she was taken
away and raped - Common intention of all accused need not be supported by fact that
each one of them took part in actual commission of offence - Accused could be convicted
u/S.376(2)(g) although they were charged u/S.376 in general. (Para 21)
(C) Penal Code (45 of 1860), S.376(2)(g) - RAPE - EVIDENCE - COMMON
INTENTION - Gang rape - Proof - Accused persons allegedly took victim away and
committed rape on her - Evidence of victim herself was cogent and convincing - It was
corroborated by her brother who was accompanying her prior to actual occurrence of rape
- Material objects were found to have semen stains - Accused persons tested positive as
regards proof of potency - Considering sociological background of victim, some delay in
lodging F. I. R. would not be fatal - Common intention on part of accused Nos. 1 to 3 out
of six was proved - Conviction of three accused is proper. (Paras 22, 23)
K.V. Viswanathan, K.V. Venkatraman, B. Raghunath, K.V. Vijayakumar, Abhijit
Sengupta, V.J. Francis, A. Radhakrishnan and Anupam Mishra, for Appellant; R.
Sundaravaradan, Sr. Advocate, V.G. Pragasam, S.J. Aristotle, Prabhu Ramasubramanian
and Subramonium Prasad, for Respondent.
Judgement
S. B. SINHA, J. :- Appellants herein, who are six in number, have preferred these appeals
from a common judgment and order dated 6-3-2003 passed by the High Court of
Judicature at Madras.
2. Appellants were convicted under Section 376(2) (g) of the Indian Penal Code
(hereinafter referred to as 'the Code') and sentenced to undergo rigorous imprisonment for
10 years.
3. The incident took place on 20-11-1994. The victim was working as a Coolie. She was
married and had two children. She was returning to her home on a bicycle with her
brother, Palanisamy at about 10.00 pm after watching a movie. Appellants herein
allegedly joining hands with each other, chased them. They were riding on their own
bicycles. They dashed with the bicycle of the Palanisamy. Palanisamy and the victim fell
on the ground. Allegedly, victim was asked to enjoy herself. Palanisamy, when
questioned about the said conduct on the part of accused No.1 Babu, who was known to
the victim as a mason, was slapped by the accused No. 1. He ran away out of fear.
4. The victim was taken at a nearby place and accused Nos. 2 to 4 and 6, allegedly raped
her one after the other. She lost her consciousness.
5. Palanisamy went to the village and brought some people with him. They found the
victim lying naked in an unconscious condition. PW8, Chinnadurai, and others poured
water on her face. She was taken home after she regained her consciousness.
6. She regained her composure in the evening. They came to the Police Station and
lodged the First Information Report at about 7.00 pm on 21-11-1994. She was medically
examined at about 0720 hours on 22-11-1994. No injury on her person, however, was
found. No injury on her private part was also noticed. In the FIR, accused Nos. 1 to 4
were named. Accused Nos.5 and 6 were not named. It was said to be a moonlit night. All
the accused, however, were not put on the Test Identification Parade. On completion of
investigation, they were charge sheeted and put on trial.
Admittedly, no charge under Section 376(2)(g) was framed.
The allegations made against them in the FIR read as under :
"On the moonlight, I identify one person is Babu who is working as a mason along with
another three persons were standing along with backside of cycle. All the accused were
laughed at me when I was standing at
@page-SC2224
Keriampalayam bus stop to go for work, I saw them. Babu called me to come with him.
Immediately my brother asked about this, suddenly Babu slapped him. Then Babu rushed
with tears in the said cycle. All the three persons rushed me to the damaged wall building
and place me near the tank. I tried to escape from them. The three persons pushed me
with force and closed the mouth with my saree. I cannot do anything. I saw all the faces
in the moon light. Babu called one Thangavelu and told him that to go with me.
Thangavelu placed on me without dress and raped me. Next Thangavelu sent one Sakthi.
He also raped me. Next Babu called one Murugesan and sent to me. He also raped me.
Then I felt unconscious. I do not know about the further matter. When I awakened, the
village people, my brother, my uncle Chinnan and others poured water on my face and
help me to get up. I felt serious pain and am crying and weeping. My brother helped me
to reach my house. I am not able to get up since I lay down in the bed. In the evening I
feel better. Immediately I and my brother come to the police station and explain the
matter."
7. Before the learned trial Judge 10 witnesses were examined, material amongst them is
the victim herself (PW-6) and her brother, Palanisamy (PW-7). Before the learned Trial
Judge, the victim did not identify all the accused. She identified accused Nos. 1, 2 and 3.
The names of accused Nos.5 and 6 were not mentioned by her at all. In her deposition,
she stated :
"They take me to a damaged wall building at Kariampalayam and raped me. The first
accused sent third accused to enjoy me. Third accused removed all the dresses. I felt
unconscious. He do all the wrongs. Then the 1, 2 accused raped me. Then I do not know
what happened. I felt unconscious."
8. PW7, in his deposition, stated that he knew the accused No. 1 Babu only. Except Babu,
he did not name any other person.
9. The learned Trial Judge, as also the High Court, as indicated hereinbefore, found the
accused guilty under Section 376(2)(g) of the Indian Penal Code and sentenced them to
undergo rigorous imprisonment for 10 years.
10. Mr. Viswanathan and Mr. Francis, learned counsel appearing on behalf of the
appellants, in support of the appeals, would submit (1) The findings of the High Court as
also the learned Trial Judge are not sustainable as use of force by putting a cloth in her
mouth had not been disclosed by the prosecutrix in her deposition except in the First
Information Report.
(2) Whereas the presecutrix named Accused Nos.1, 2 and 4 in the FIR, with specific
allegation of commission of rape by Accused Nos. 1 and 3, she changed her story and
attributed the said act on Accused Nos. 1, 2 and 3 in her deposition before the Court.
(3) Her evidence is neither natural nor trustworthy as in the FIR, she named only two
persons to have committed the offence, but she improved the said story in her deposition
in Court alleging three other persons were on the back of the cycle and in total, there
were six persons; whereas PW7 merely stated that Accused 1 and three other persons
called his sister to enjoy which clearly go to show that they were not very clear as to how
many people followed and how many people allegedly raped her.
(4) As no external injury was found on her body or on her private part, as stated by
Doctor R. Jayabal (PW2), the prosecution case appears to be doubtful.
(5) Although in the First Information Report, she had named Accused No.4, in her
evidence she did not name him at all.
(6) There was no reason as to why no Test Identification Parade was held.
(7) In absence of any charge having been framed under Section 376(2) (g) of the Indian
Penal Code which provides for a minimum punishment of 10 years, the accused were
gravely prejudiced.
(8) The delay in lodging the First Information Report has not been satisfactorily
explained.
(9) There is nothing on record to show that all the six persons had common intention to
commit the offence in question.
11. Mr. Sundaravaradan, learned senior counsel appearing on behalf of the State, on the
other hand, would support the judgment.
12. The fact that an incident of the nature disclosed in the FIR had taken place is not in
question. The fact that she was found lying naked at the place of occurrence in an
unconscious state, stands proved not only by PW7 but also by PW8, Chinnadurai. The
evidence of PW8 remains uncontroverted. He
@page-SC2225
has not been cross-examined. PW9 is the investigating officer. He stated that the FIR was
lodged at about 7.00 pm in the evening on 21-11-1994. She was sent to the hospital for
medical examination. Indisputably, the prosecutrix did not suffer any injury. For the
purpose of proving commission of the offence of rape, however, the same was not
necessary as she was a grown up girl aged between 20 to 23 years as opined by Dr.
Gopikrishnan. She was furthermore mother of two children.
13. She knew Accused No. 1, Babu. It was the said accused who had taken a leading role
in the whole episode. He invited others to rape her. Having regard to the circumstances in
which she was found by the villagers including PW8, we have no doubt in our mind that
she was subjected to rape.
The only question which arises for consideration, therefore, is as to who were the persons
responsible therefor.
14. The allegations made in the First Information Report are not evidence. She might
have named four persons, namely, accused Nos. 1 to 4 in the FIR, but, as indicated
hereinbefore, she named only accused Nos. 1 to 3 in her deposition. Only accused No.1,
Babu, has been named by PW7 and none other. She, therefore, knew only the four
persons. She had not named accused Nos.5 and 6 either in the FIR or in her deposition.
They had been arrested on the basis of the statements made by their co-accused. They had
not been put to Test Identification Parade. The prosecutrix, in her deposition before the
learned Trial Judge, neither named nor identified accused Nos. 4 to 6. On what basis,
therefore, their guilt is said to have been established is not known. Both, the learned Trial
Judge as also the High Court, in their judgments did not deal with this aspect of the
matter.
15. In a situation of this nature, a Test Identification Parade was required to be held at
least for the purpose of identification of accused Nos. 5 and 6. Some weight should have
been given for arriving at a finding as regards the guilt of accused Nos.5 and 6, as they
had not been identified in the court.
16. We, therefore, are of the opinion that in absence of any Test Identification Parade
having been held or they having been identified in court, the accused Nos.4 to 6 cannot
be held guilty of commission of the said offence. They are, in our opinion, have wrongly
been convicted.
As regards the identification of the rest of the accused, we may notice that in Devinder
Singh v. State of H.P. [(2003) 1 SCC 488], it was held : 2003 AIR SCW 4779, (Para
21)
"In view of these circumstances even if it is accepted that the prosecutrix had a fleeting
glimpse of the appellants when they lighted the torch in her room, in the absence of any
other evidence to show that the prosecutrix had occasion to see the appellants earlier, or
to know them, it was incumbent on the prosecution to hold a test identification parade.
This is not a case where an occurrence took place in broad day light and the prosecutrix
had ample opportunity of noticing the features of the appellants. This apart, her naming
some of the accused persons in the First Information Report and not naming them in the
course of deposition casts a serious doubt on the veracity of this witness."
17. Some delay has occurred in the lodging of the FIR but keeping in view the trauma
suffered by the Victim, her statement that she had regained her composures only in the
evening cannot be disbelieved particularly in view of the evidence of PW8.
18. In a situation of this nature and particularly having regard to the sociological
backgrounds from which PW6 and PW7 and other witnesses hail, we are not in a position
to agree with the submissions of Mr. Viswanathan that the prosecution's case should be
thrown out only on the ground of delay in lodging the FIR.
19. PW7 also is a natural witness. He was slapped. He was put to fear. He was chased. He
had run away to his village, collected some people and came back to the scene of
occurrence. We do not see as to why he should be disbelieved. If he was to lodge a false
case, he could have done so even otherwise.
20. Whether they were accompanied by the village people or their caste people is not a
matter of any significance. For the similar reason, whether PW7 was sent back by the
Investigating Officer to get her clothes or not is again not a matter of great significance.
Section 376(2)(g) of the Code reads as under :
"376. Punishment for rape.(1) ...
@page-SC2226
(2) Whoever, -
(a) to (f)...
(g) commits gang rape,
shall be punished with rigorous imprisonment for a term which shall not be less than ten
years but which may be for life and shall also be liable to fine :
Provided that the court may, for adequate and special reasons to be mentioned in the
judgment, impose a sentence of imprisonment of either description for a term of less than
ten years,
Explanation I. - Where a woman is raped by one or more in a group of persons acting in
furtherance of their common intention, each of the persons shall be deemed to have
committed gang rape within the meaning of this sub-section."
21. Explanation-I one appended to the said provision clearly states that the persons who
have common intention to commit the said offence would also be liable in terms of
Section 376(2)(g) of the Act. The common intention of all the accused need not be
supported by the fact that each one of them took part in actual commission of the offence.
The very fact that they came on cycles and dashed with the cycle of PW7 would clearly
show that they had a common intention to commit the offence. If they had the common
intention of committing the offence, they although were charged under Section 376 in
general, they could be convicted also under Section 376(2)(g) as the latter is merely a
graver form of the offence of rape as defined in Section 375 of the Code. In any event, we
do not find that they were prejudiced in any manner whatsoever; as evidently :
(1) they not only gathered and obstructed her from proceeding towards her residence with
her brother in the bicycle but also deliberately making her and her brother to fall down
from the cycle; and
(2) She was physically removed to a secluded place and at least three of them took part in
committing the offence of rape on her one by one.
22. The evidence of PW6 to the aforementioned extent is cogent and convincing and has
been corroborated by PW7 who not only is a witness of the events which took place
immediately prior to the actual occurrence of rape but also a witness to the scene of
occurrence where he found his sister lying naked in an unconscious state.
The material objects were found to have semen stains. The accused were also tested as
regards proof of potency and the doctors who examined them categorically came to the
conclusion that they were not incapable of committing sexual intercourse. There may be
some inconsistency as pointed by Mr. Viswanathan with regard to recovery of the clothes
or sending the same for chemical examination, but our findings on the aforementioned
grounds, in our opinion, are sufficient to prove the common intention on the part of
accused Nos. 1 to 3.
23. For the reasons aforementioned, the appeals preferred by accused Nos. 1, 2 and 3 are
dismissed whereas the appeals preferred by accused Nos. 4, 5 and 6 are allowed. They are
on bail. Whereas accused Nos. 1, 2 and 3 are directed to surrender, accused Nos. 4, 5 and
6 are discharged from their bail bonds.
Order accordingly.
AIR 2008 SUPREME COURT 2226 "Surjit Singh v. Mahanagar Telephone Nigam Ltd."
(From : Delhi)
Surjit Singh v. Mahanagar Telephone Nigam Ltd.
(A) Telegraph Act (13 of 1885), S.7 - Telegraph Rules (1951), R.2(pp), R.443 -
TELEGRAPH - Telephone - Disconnection - Non-payment of charges - House-wile
defaulting to pay for her telephone - Husband's telephone can be disconnected.
For default in payment of charges for the telephone in name of a house-wife the
telephone in the name of husband, who is really paying the bills of the wife, can be
disconnected. (Para 22)
It is true that such an interpretation would be in the teeth of the language used in R. 443
read with R. 2(pp) which defines "subscriber". But in such a case the literal interpretation
rule has to give way to the purposive construction rule. The intention of R 443 obviously
was that payment of telephone dues should be made promptly, otherwise the telephone
department will suffer. The interpretation which effectuates and
@page-SC2227
furthers the intention of R. 443, i.e. the telephone bills should be paid in time has
therefore to be adopted. The word 'subscriber' has therefore to be widely construed.
Hence the telephone line in the name of the person who is really paying the bills in
connection with the telephone line in the name of another person who is economically
dependent on the former can be disconnected for non-payment of bills in connection with
the telephone line in the name of the latter. Such an interpretation would effectuate the
intention of R. 443. It would make no difference whether the telephone line is at the
residence or at the business premises, even if the two are entirely separate. (Paras
21, 28, 29, 57)
(B) INTERPRETATION OF STATUTES - Interpretation of Statutes - Mimansa
principles - Can be need - Matter of deep regret that these principles have rarely been
used in our Law Courts. (Paras 31, 32)
(2001) Civil Appeal No. 2849 of 1991, D/-22-4-2001 (Gauh) 15
AIR 2000 Del 431 16
(1997) C.W.P. No. 1693 of 1996, D/- 26-9-1997 (Del) 16
AIR 1996 Bom 53 (Disting.) 9
AIR 1993 AP 131 (Disting.) 14
1991 AIR SCW 431 (Ref.) 43
AIR 1990 Gauh 47 15
AIR 1990 Guj 85 16
1989 (16) DRJ 51 16
AIR 1988 SC 2239 (Ref.) 41
AIR 1964 SC 1230 (Rel. on) 23
(1892) ILR 14 All 67 (FB) 31
R.K. Kapoor, Mukesh Kumar Verma, Ms. Shweta Kapoor, Ms. Mansi Dhiman and Anis
Ahmed Khan, for Appellant; Amarendra Saran, ASG, U.R. Rao, Ms. Madhu Sikri and
Ms. Nidhi, for Respondent.
Judgement
MARKANDEY KATJU, J. :- This appeal by special leave has been filed against the
impugned judgment of the Division Bench of the Delhi High Court dated 10-1-2002 in
LPA No. 665 of 2001.
2. Heard Shri R.L. Kapoor, learned counsel for the appellant and Shri Amarendra Saran,
learned Addl. Solicitor General for the respondent.
3. The facts of the case are that the appellant and his wife are living together at their
residence in Rajouri Garden, Delhi. At that residence, there is one telephone line bearing
No. 5121187 in the name of appellant Surjit Singh and there is also another telephone
line bearing No. 5416493 at the same residence in the name of the appellant's wife. There
is a third telephone line bearing No. 3265301 in the name of the appellant and installed at
the business premises of the appellant at 1195, Chahrahat Building, Jama Masjid, Delhi.
4. It appears that there were arrears of telephone dues in connection with line No.
5416493 which was in the name of the appellant's wife. For non-payment of the
telephone dues in connection with this line, the other two lines in the name of the
appellant being 5121187 at his residential premises and line No. 3265301 at his business
premises were disconnected.
5. The contention of the appellant was that the telephone lines in his own name being line
No. 5121187 at his residence and line No. 3265301 at his business premises should not be
disconnected on account of non-payment of dues in connection with the line in the name
of his wife being line No. 5416493. He contended that he and his wife are two separate
legal entities, and he could not be penalized for the fault of his wife.
6. The appellant filed a writ petition in the Delhi High Court which was dismissed by a
learned Single Judge by his judgment dated 25-9-2001 and his appeal before the Division
Bench of the High Court was also dismissed by the impugned judgment dated 10-1-2002.
Hence, this appeal before this Court.
7. Learned counsel for the appellant has relied on Rule 443 of the Indian Telegraph Rules
which states :
"443. Default of payment - If, on or before the due date, the rent or other charges in
respect of the telephone service provided are not paid by the subscriber in accordance
with these rules, or bills for charges in respect of calls of phonograms or other dues from
the subscriber are not duly paid by him, any telephone or telephones or any telex service
rented by him, may be disconnected without notice. The telephone or telephones, or the
telex so disconnected may, if the Telegraph Authority thinks fit, be restored, if the
defaulting subscriber pays the outstanding dues and the re-connection fee together with
the rental for such portion of the intervening period as may be prescribed
@page-SC2228
by the Telegraph Authority from time to time. The subscriber shall pay all the above
charges within such period as may be prescribed by the telegraph authority from time to
time."
8. Learned counsel for the appellant submitted that in view of Rule 443 the telephone
lines in the name of the appellant could not have been disconnected because of non-
payment of dues in respect of the line in the name of his wife.
9. Learned counsel for the appellant invited our attention to the decision of a Learned
Single Judge of the Bombay High Court in Dr. B.V. Manek vs. Mahanagar Telephone
Nigam Ltd. AIR 1996 Bom 53. We have carefully perused the aforesaid decision and find
that it is distinguishable. In that case, the telephone line of the petitioner had been
disconnected because of non-payment of the dues of another line which was in the name
of his father. The learned Single Judge of the High Court held that the Department cannot
disconnect the telephone of the subscriber on account of the default committed by a
relation of such subscriber. It has not been mentioned in the said decision of the Bombay
High Court that the petitioner's father was economically dependent on the petitioner.
10. In the present case which is before us it has come on the record that the appellant's
wife is a housewife who is living with the appellant at his residential premises at Rajouri
Garden, Delhi. It has not been alleged that the appellant's wife has an independent source
of income by doing some business or by some service etc. In these circumstances, it can
be inferred that the payment of the bill of the telephone line in the name of the appellant's
wife was being made by the appellant himself, since his wife has no independent source
of income and is economically dependent on him.
11. In our opinion, we have to draw a distinction between the cases where a relative who
though living in the same house has an independent source of income, and cases where
one relative is dependent on another. While in the former case if there are two different
lines, one in the name of the relative who is economically independent and has his own
source of income and the other in the name of the petitioner, it could be held that non-
payment of dues by the relative cannot lead to the consequence of the disconnection of
the telephone line of the petitioner. However, in the latter category of cases i.e. where one
relative is economically dependent on another, the position, in our opinion, is wholly
different. For instance, if there is a telephone line in the name of a minor child of a father,
and another telephone line in the name of the father, and both of them are living together
in the same house, then obviously the telephone bills of the telephone line in the name of
the minor child is being paid by the father. Hence, in our opinion, for non-payment of the
bills of the telephone line in the name of the minor child, the telephone line of the father
can be disconnected.
12. Similarly, there can be a case where the husband and wife are living in the same
house and both have independent sources of income, and the wife herself is paying for
the bills in connection with the telephone line in her own name, whereas the husband is
paying for the bills of his own telephone line. In such a case, for non-payment of the bill
of the wife the telephone line of the husband Cannot be disconnected.
13. As stated above, in the judgment of the learned Single Judge of the Bombay High
Court, it is not mentioned that the father was economically dependent on the petitioner.
Hence, the aforesaid decision can be of no help in deciding the present dispute, since
necessary factual details are lacking.
14. Learned counsel for the appellant then invited our attention to the decision of a
learned Single Judge of the Andhra Pradesh High Court in Y. Pridhvi Kumar vs. The
General Manager, Telecom District, Hyderabad AIR 1993 AP 131. We have carefully
perused the said decision and find that that decision is also distinguishable. In the said
decision it appears that there was a telephone line in the name of the mother and another
telephone line in the name of the son, and both were living together. There were dues in
the name of the mother and it was held by the Andhra Pradesh High Court that in that
situation the liability could not be fastened on the son and his telephone line could not be
disconnected. It is not clear from the aforesaid decision of the Andhra Pradesh High
Court whether the mother was economically dependent on her son. It is quite possible
that the mother was economically dependent on her husband who was paying her bills. It
is also possible that the
@page-SC2229
mother was a working woman with an independent source of income. Hence, the
appellant in the present case cannot derive any benefit from the aforesaid decision of the
Andhra Pradesh High Court.
15. Learned counsel for the appellant also sought to rely on the decision in Santokh Singh
vs. Divisional Engineer, Telephones, Shillong and others AIR 1990 Gauhati 47. However,
it appears that an appeal was filed against the aforesaid judgment in this Court being
Civil Appeal No. 2849/1991 titled Divisional Engineer Telephone and Ors. vs. Sardar
Santokh Singh decided on 22-4-2001 by this Court. In the said decision it was held that
the judgment of the Gauhati High Court in Santokh Singh vs. Divisional Engineer
Telephone and Ors shall not be treated as a precedent.
16
. On the other hand, learned counsel for the respondent has relied on the decision of a
Division Bench of the Delhi High Court in Madan Tayal and Pran Kr. Tayal vs. MTNL
1989 (16) DRJ 51, the decision of a learned Single Judge of the Delhi High Court in
Rajiv Gosain vs. MTNL in Civil Writ Petition No. 6343/1981 decided on 20-4-2000, and
the decision of a learned Single Judge of Delhi High Court in Sukh Dayal Narula vs.
MTNL in Civil Writ Petition No. 1693/ 1996 decided on 26-9-1997. In these decisions
the Delhi High Court has held that the telephone line of a subscriber can be disconnected
for non-payment of dues of a relative who is living in the same premises. Learned
counsel also relied on the decision of the Gujarat High Court in Indravadan Pranlal Shah
vs. General Manager, Ahmedabad Telephones District Kharpur, Ahmedabad and Anr. AIR
1990 Guj 85 in which it was held that the telephone of the petitioner can be disconnected
if there is failure by the firm in which he is a partner to pay the dues of the telephone line
in the name of the firm. Reported in AIR 2000 Delhi 431
17. Learned counsel for the appellant has invited our attention to Rule 2(pp) of the Indian
Telegraph Rules, 1951 which defines a 'subscriber' as follows :
" 'Subscriber' means a person to whom a telephone service has been provided by means
of an installation under these rules or under an agreement".
18. Learned counsel for the appellant submitted that in view of the definition of
subscriber in Rule 2(pp), the telephone lines in the name of the appellant could not have
been disconnected for default in the payment of dues in connection with the telephone
line in the name of his wife.
19. We have already stated above that where two relatives are living in the same house a
distinction has to be drawn between a telephone line in the name of a person who is
economically dependent on another (who may be the husband, father etc.), and the
telephone line in the name of a person who has an independent source of income from
which he is paying the telephone bills. In the case of the former, i.e. a person who is
economically dependent on another who is paying his telephone bills, the telephone line
in the name of such other relative on whom the subscriber is dependent can be
disconnected for non-payment of the telephone bills of the nominal subscriber.
20. Learned counsel for the appellant protested that such an interpretation would be in the
teeth of the language used in Rule 443 read with Rule 2(pp) of the Indian Telegraph
Rules.
21. It is true that on a literal interpretation of Rule 443, we would have to accept the
contention of learned counsel for the appellant. However, in our opinion, in this case, the
literal rule has not to be adopted, because we have also to see the intention of the rule.
The intention obviously was that payment of telephone dues should be made promptly,
otherwise the telephone department will suffer. We have, therefore, to take an
interpretation which effectuates and furthers the intention of Rule 443, i.e. the telephone
bills should be paid in time.
22. In the case of a wife who is a housewife and is economically dependent on her
husband, obviously the telephone bills in connection with the line in her name are being
paid by her husband and not by herself. Hence, we have to adopt a purposive construction
in this case and not go by the literal rule of interpretation.
23
. Though, no doubt, ordinarily the literal rule should be applied while interpreting a
statute or statutory rule, but the literal rule is not always the only rule of interpretation of
a provision in a statute, and in exceptional cases the literal rule can be departed from. As
observed in the Constitution Bench decision of this Court in R.L. Arora vs. State of Uttar
Pradesh and others 1964 (6) SCR 784 : AIR 1964 SC 1230, (Para 9)
@page-SC2230
"Further, a literal interpretation is not always the only interpretation of a provision in a
statute, and the court has to look at the setting in which the words are used and the
circumstances in which the law came to be passed to decide whether there is something
implicit behind the words actually used which would control the literal meaning of the
words used in a provision of the statute. It is permissible to control the wide language
used in a statute if that is possible by the setting in which the words are used and the
intention of the law-making body which may be apparent from the circumstances in
which the particular provision came to be made."
(Emphasis supplied)
24. Hence it follows that to interpret a statute one has to sometimes consider the context
in which it has been made and the purpose and object which it seeks to achieve. A too
literal interpretation may sometimes frustrate the very object of the statute, and such an
approach should be eschewed by the Court.
25
. In Hindustan Lever Ltd. vs. Ashok Vishnu Kate and others 1995(6) SCC 326 (vide para
42) this Court observed : 1995 AIR SCW 4065
"Francis Bennion in his Statutory Interpretation Second Edn., has dealt with the
Functional Construction Rule in Part XV of his book. The nature of purposive
construction is dealt with in Part XX at p. 659 thus :
"A purposive construction of an enactment is one which gives effect to the legislative
purpose by -
(a) following the literal meaning of the enactment where that meaning is in accordance
with the legislative purpose (in this Code called a purposive-and-literal construction), or
(b) applying a strained meaning where the literal meaning is not in accordance with the
legislative purpose (in the Code called a purposive and strained construction)."
At p. 661 of the same book, the author has considered the topic of "Purposive
Construction" in contrast with literal construction. The learned author has observed as
under :
"Contrast with literal construction - Although the term 'purposive construction' is not
new, its entry into fashion betokens a swing by the appellate courts away from literal
construction. Lord Diplock said in 1975 : 'If one looks back to the actual decisions of the
[House of Lords] on questions of statutory construction over the last 30 years one cannot
fail to be struck by the evidence of a trend away from the purely literal towards the
purposive construction of statutory provisions'. The matter was summed up by Lord
Diplock in this way
.. .I am not reluctant to adopt a purposive construction where to apply the literal meaning
of the legislative language used would lead to results which would clearly defeat the
purposes of the Act. But in doing so the task on which a court of justice is engaged
remains one of construction, even where this involves reading into the Act words which
are not expressly included in it."
(Emphasis supplied)
We respectfully agree with the view expressed above.
26. In our opinion, in this case, a purposive construction has to be adopted in interpreting
Rule 443 of the Indian Telegraph Rules.
27. We may also consider the matter from the point of view of our traditional principles
of interpretation. The great Sanskrit grammarian Nagesh Bhatt in his book 'Param Laghu
Manjusha' has said that a word or phrase can have three meanings :
"(i) Abhidha i.e. literal meaning; (ii) Lakshana i.e. the indicative or suggestive meaning;
(iii) Vyanjana i.e. the figurative meaning.
Usually the literal meaning is followed, but some times the suggestive or figurative
meanings are adopted. As regards the suggestive meaning (Lakshana) the oft quoted
example is (sic) : i.e. "I live on the Ganges." This sentence cannot be literally interpreted
because no one can live on the surface of the Ganges river. Hence it has to be interpreted
to mean "I live on the bank of the Ganga river." As regards the third meaning Vyanjana,
the oft quoted example is ('sic') which means : "The sun has set." Here the real meaning
has in fact nothing to do with the sun or its setting, but it really means "light the lamp" or
"let us go home" (because the sun has set).
28. In our opinion, in the present case, we have to adopt the Lakshana (or Linga) rule of
interpretation rather than the Shruti or Abidha (the literal) rule. In other words,
@page-SC2231
Rule 443 of the Indian Telegraph Rule has to be interpreted in a purposive sense. Hence
the telephone line in the name of the person who is really paying the bills in connection
with the telephone line in the name of another person who is economically dependent on
the former can be disconnected for non payment of bills in connection with the telephone
line in the name of the latter. Such an interpretation would effectuate the intention of Rule
443, which is that telephone bills should be paid promptly.
29. Also, it would make no difference whether the telephone line is at the residence or at
the business premises, even if the two are entirely separate. Hence in our opinion both the
telephone lines in the name of the appellant, one at his residence and the other at his
business premises, can be disconnected for non-payment of the dues in connection with
the line in the name of his dependent wife.
30. We can also utilize the Mimansa Rules of Interpretation in interpreting Rule 443.
31. It is deeply regrettable that in our Courts of law, lawyers quote Maxwell and Craies
but nobody refers to the Mimansa Principles of Interpretation. Today our so-called
educated people are largely unaware about the great intellectual achievements of our
ancestors and the intellectual treasury they have bequeathed us. The Mimansa Principles
of Interpretation is part of that intellectual treasury, but it is distressing to note that apart
from a reference to these principles in the judgment of Sir John Edge, the then Chief
Justice of Allahabad High Court, in Beni Prasad v. Hardai Devi (1892) ILR 14 All 67
(FB), there has been almost no utilization of these principles even in our own country
(except by one of us, M. Katju.J.).
32. It may be mentioned that the Mimansa Rules of Interpretation were our traditional
principles of interpretation used for over two and a half thousand years, laid down by
Jaimini whose Sutras were explained by Shabar, Kumarila Bhatta, Prabhakar, etc. These
Mimansa Principles were regularly used by our great jurists like Vijnaneshwara (Author
of Mitakshara), Jimutvahana (author of Dayabhaga), Nanda Pandit, etc. whenever they
found any conflict between the various Smritis or any ambiguity or incongruity therein.
There is no reason why we cannot use these principles on appropriate occasions.
However, it is a matter of deep regret that these principles have rarely been used in our
law Courts. It is nowhere mentioned in our Constitution or any other law that only
Maxwell's Principles of Interpretation can be used by the Court. We can use any system
of interpretation which helps us solve a difficulty. In certain situations Maxwell's
principles would be more appropriate, while in other situations the Mimansa principles
may be more suitable.
33. The books on Mimansa are almost all in Sanskrit, but there is one good book called
the 'Mimansa Rules of Interpretation' by Prof. K.L. Sarkar published in the Tagore Law
Lecture Series, which may be seen.
34. It may be mentioned that the Mimansa Rules of Interpretation were created for
resolving the practical difficulties in performing the Vedic yagyas. The rules for
performing the various yagyas were given in books called Brahmanas e.g. Shatapath
Brahman, Aitareya Brahman, Taitereya Brahman, etc. There were many ambiguities,
conflicts, incongruities, ellipses etc. in the Brahmana texts, and hence principles of
interpretation had to be created for this purpose. Thus the Mimansa principles were
originally created for religious purposes, but they were so rational and logical that
subsequently they began to be used in law, grammar, logic, philosophy etc., that is, they
became of universal application.
35. Jaimini in Sutra 6: 3: 9 states : "When there is a conflict between the purpose and the
material, the purpose is to prevail, because in the absence of the prescribed material a
substitute can be used, for the material is subordinate to the purpose".
36. To explain this it may be mentioned that the Brahmanas state that the prescribed Yupa
(sacrificial post for tying the sacrificial animal) must be made of Khadir Wood. However,
Khadir wood is weak while the animal tied may be restive. Hence, the Mimansa principle
(stated above) permits that the Yupa can be made of Khadar wood which is strong. Now
this substitution is being made despite the fact that the prescribed wood is Khadir, but this
prescription is only subordinate or accessory to the performance of the yagya, which is
the main object. Hence, if it comes in the way of the yagya being performed, it can be
modifiedor substituted.
@page-SC2232
37. In this connection we may also refer to the Wooden Sword Maxim (Sphadi Nyaya),
which is a well known Maxim in the Mimansa system. This Maxim states "what is
prescribed as a means to an action, is to be taken in a sense suited to the performance of
the action" (vide Jaimini 3:1:2, quoted in the book 'Mimansa Rules of Interpretation' by
K.L. Sarkar at p. 185). The word 'Spha' in Sanskrit means a sword, which is normally a
metallic object for cutting. However, 'Spha' in connection with a Yagya has to be
interpreted as a wooden sword, because in a Yagya a small wooden sword called 'Spha' is
used which is a pushing instrument (as a Yagya requires no cutting instrument, but only a
pushing instrument). Thus, 'Sphadi Nyaya' implies that we have to see the object of the
text to correctly interpret it.
38. In the Mimansa system, the literal rule of interpretation is called the Shruti (or
Abhida) principle, and ordinarily it is this principle which is to be applied when
interpreting a text. However, there are exceptional situations when we have to depart
from the literal rule and then certain other principles have to be resorted to e.g. (1) the
Linga (also called Lakshana) principle or the suggestive power of words or expressions,
(2) the Vakya principle or syntactical arrangement, (3) the Prakarana principle, which
permits construction by referring to other texts in order to make the meaning clear, (4) the
Sthana (position) principle which means the relative position of one text with reference to
another, (5) the Samakhya (name) principle which means the connection between
different passages by the indication accorded by the derivative words of a compound
name.
39. In the present case we are of the opinion that the Linga (Lakshana) principle will
apply.
40. Linga really means interpretation by understanding the context, and it is a departure
from the literal rule of interpretation.
41. The Linga principle can be illustrated by the decision of this Court in U.P. Bhoodan
Yagna Samiti vs. Brij Kishore AIR 1988 SC 2239 where the words 'landless person' were
held to mean 'landless peasant' and not landless businessmen.
42. Here we see that the Court has departed from the literal rule of interpretation, because
by the literal rule even a very rich businessman who owns no land will be regarded as a
landless person. Since the object of the U.P. Bhoodan Act was to give some land to the
landless peasants, the expression 'landless person' was interpreted to mean 'landless
peasant' only. This interpretation was necessary otherwise the entire object of the U.P.
Bhoodan Act would be frustrated and land donated for distribution to landless peasants
could be grabbed by rich businessmen on the ground that they owned no land, although
they may have huge amount of wealth in the form of shares in their companies, securities,
crores of rupees in banks etc..
43
. We may also like to point out that there is a difference between Linga (Lakshana)
principle and the Vakya principle. In the former no violence is done to the wording of the
text, but the words or expressions are construed differently from the literal sense, and
hence Linga is really construction by context. In Vakya, however, some violence is done
to the text, e.g. by connecting two separate sentences, or by adding words or expressions,
or by transferring words or expressions up or down a sentence. This violence may
sometimes become necessary to save the text from becoming meaningless or absurd, just
as the surgeon may have to do violence to the body (by operation) to save the patient's
life. For this purpose the Uha principle is utilized (The Uha principle or use of reason, is
generally applied for construction of texts). In this connection it may be mentioned that
Maxwell also permits doing violence to the statute in exceptional situations. He says
"Where the language of a statute, in its ordinary meaning and grammatical construction
leads to a manifest contradiction of the apparent purpose of the enactment, or to some
inconvenience or absurdity, hardship or injustice, presumably not intended, a construction
may be put upon it which modifies the meaning of the words, and even the structure of
the sentence. This may be done by departing from the rules of grammar, by giving an
unusual meaning to particular words, by altering their collocation, by rejecting them
altogether, or by interpolating other words, under the influence, no doubt, of an
irresistible conviction that the legislature could not possibly have intended what the
words signify, and that the modifications 1991 AIR SCW 431
@page-SC2233
thus made are mere corrections of careless language and really give the true intention".
Thus, in S.S. Kalra vs. Union of India 1991 (2) SCC 87 this Court observed that
sometimes courts can supply words which have been accidentally omitted. (See also the
rulings mentioned in G.P. Singh's book "Principles of Statutory Interpretation" 9th
Edition, 2004 pages 70 to 77).
44. The principle of Linga is illustrated by Jaimini in numerous Sutras and Adhikarnas.
Thus the Pranabhrit Adhikarana which is based on Jaimini's Sutra 28, Chapter IV, Book 1
shows how words acquired a wider meaning by the Linga or Lakshana process.
45. In the Taittiriya Samhita (5.3.1.2) there is a passage :
"He disposes the Pranabhrit -
46. Again in the same Samhita (5.7.2.5) there is a similar passage :

"He disposes the Ajyani -
47. Now what is the meaning of Pranabhrit in the one case and of Ajyani in the other ?
The words Pranabhrit and Ajyani are respectively the names of two Mantras or verses
which begin with those words. These verses are used in consecrating bricks required for a
certain purpose in a yagya. From this fact the bricks consecrated by the Pranabhrit
Mantra acquired the name of Pranabhrit. Similarly the bricks consecrated by the Ajyani
Mantra acquired the name of Ajyani. But in course of time the whole heap of bricks of a
particular kind came to be called Pranabhrit, because one or two bricks of that heap were
consecrated as Pranabhrit bricks. Thus the instance of Pranabhrit becomes a maxim for
extending the scope of a name in the above manner. In fact, the meaning of the words
Pranabhrit and Ajyani in these cases is determined by the peculiar association of the
words and by the context of the passages in which they are used. Such a use is called
Lingasamabaya (embodiment of the Linga).
48. Nanda Pandit, in his work 'Dattaka Mimansa', refers to the Pranabhrit maxim to show
that although the word 'substitute' was at first applied in express term only to six
descriptions of sons, later the word by general use became applicable to all the twelve
descriptions.
49. The Pranabhrit maxim
states : "The peculiar feature of one leading object belonging to a class may give name to
the whole class."
50. Pranabhrit literally means filling with life or inspiring life; but the expression forms
the commencement of a Mantra which is used in consecrating certain bricks. Hence the
word has come to mean a kind of bricks
This is the way in which the word Ajyani also has come to mean another class of bricks.
51. The Pranabhrit maxim applies in the present case also because we have to fill life (i.e.
given an appropriate interpretation) to the word 'subscriber' in Rule 443 of the Indian
Telegraph Rules.
52. The Pranabhrit maxim is often used in the interpretation of a text by treating it as
illustrative and not exhaustive. The illustrative rule of interpretation is a departure from
the literal rule which normally has to be adopted while construing a text. However,
sometimes departures from the literal rule are permissible, and one of such departures is
the illustrative rule. To give an example, in Sanskrit there is an oft-quoted statement
"Kakebhyo Dadhi Rakshitam" which means "protect the curd from the crows". Now in
this sentence the word 'crow' is merely illustrative and not exhaustive. The statement does
not mean that one should protect the curd only from crows but allow it to be eaten up by
cats, dogs or to get damaged by dirt or filth etc. It really means that one should protect the
curd from all dangers. Hence the word 'crow' in the above statement is only illustrative
and not exhaustive.
53. We can take another example. In the U.S. Constitution, Article 1 Section 8 states that
Congress (the American Parliament) can raise Armies and Navies. There is no mention of
an Air Force there, obviously because there were no aircraft in 1791 when the U.S.
Constitution was promulgated. The first aircraft was invented by the Wright brothers in
1903. However, today's reality is that a modern Army cannot fight without air cover.
Amendment to the U.S. Constitution is a very ardous and lengthy procedure because it
requires two-third majority of both Houses of Congress and ratification by three-fourth of
the States. By the time this is done, the enemy may invade and occupy the country. Hence
the words 'Armies and Navies' have
@page-SC2234
to be interpreted as illustrative and not exhaustive, and they really mean all armed forces
necessary for the security of the country (which would include an Air Force, also).
54. Thus Article 1 Section 8 of the U.S. Constitution has to be interpreted not by applying
the Shruti rule (literal rule), but by applying the Linga rule. The words 'Armies and
Navies' in Article 1 Section 8 are to be construed not literally but as suggestive. In other
words, they are only illustrative, and they really mean all Armed Forces necessary for the
security of the country.
55. We may also refer to Maxwell's 'Interpretation of Statutes' where it is stated :
"But it is another elementary rule, that a thing which is within the letter of a statute is not
within the statute unless it be also within the real intention of the Legislature. and the
words, if sufficiently flexible, must be construed in the sense which, if less correct
grammatically, is more in harmony within that intention. Language is rarely so free from
ambiguity as to be incapable of being used in more than one sense; and to adhere rigidly
to its literal and primary meaning in all cases would be to miss its real meaning in many.
If a literal meaning had been given to the laws which forbade a layman to "lay hands" on
a priest, and punished all who drew blood in the street, the layman who wounded a priest
with a weapon would not have fallen within the prohibition, and the surgeon who bled a
person to save his life, would have been liable to punishment. On a literal construction of
his promise, Mohammed II's sawing the Venetian Governor's body in two, was no breach
of his engagement to spare his head; nor Tamerlane's burying alive a garrison, a violation
of his pledge to shed no blood."
Maxwell also states :
"The words of a statute are to be understood in the sense in which they best harmonize
with the subject of the enactment and the object which the Legislature has in view. Their
meaning is found not so much in a strictly grammatical or etymological propriety of
language, nor even in its popular use, as in the subject or in the occasion on which they
are used and the object to be attained."
(Emphasis supplied)
56. Thus, in both systems of interpretation, the Mimansa system as well as Maxwell's
system, it is emphasized that the intention of a statute has often to be seen to properly
interpret it, and it is not that the Court can never depart from the literal rule of
interpretation. It all depends on the context, the subject-matter, the purpose for which the
provision was made, etc.
57. As already stated above, while construing Rule 443 we have to give an interpretation
which subserves the intention of the Rule which is that telephone bills should be
promptly paid, otherwise the department will be short of the funds needed for financing
the telephone services which are to be rendered to the consumers. After all, the salary of
the employees of the telephone department have to be paid, the telephone equipment has
to be maintained, repaired and kept up-to-date. Sometimes new technology has to be
introduced. There may be various other requirements for which funds may be required,
and all these can only be possible if the telephone bills are paid in time. Hence, in our
opinion, the word 'subscriber' in Rule 2(pp) has to be given a wider meaning, as already
stated above.
58. In view of the above, we find no merit in this appeal which is accordingly dismissed.
There shall be no order as to costs.
Appeal dismissed.
AIR 2008 SUPREME COURT 2234 "Chander Kanta Bansal v. Rajinder Singh Anand"
(From : Delhi)
-2008.
Chander Kanta Bansal v. Rajinder Singh Anand.
(A) Civil P.C. (5 of 1908), O.6, R.17, Proviso - PLEADINGS - AMENDMENT -
Amendment of pleadings - Liberal principles guide exercise of discretion in allowing
amendment - But care should be taken to see that injustice and prejudice of an
irremediable character are not inflicted upon opposite party under pretence of
amendment.
Rule 17 of Order 6 was omitted by the Code of Civil Procedure (Amendment) Act, 1999.
However, before the enforcement of the Code of Civil Procedure (Amendment) Act,
1999, the original rule was substituted and restored with an additional proviso. The
proviso limits the power to allow amendment after the commencement of trial but grants
discretion to the Court to allow amendment
@page-SC2235
if it feels that the party could not have raised the matter before the commencement of trial
in spite of due diligence. It is true that the power to allow amendment should be liberally
exercised. The liberal principles which guide the exercise of discretion in allowing the
amendment are that multiplicity of proceedings should be avoided, that amendments
which do not totally alter the character of an action should be granted, while care should
be taken to see that injustice and prejudice of an irremediable character are not inflicted
upon the opposite party under pretence of amendment. (Para 8)
(B) Civil P.C. (5 of 1908), O.6, R.17, Proviso - PLEADINGS - AMENDMENT -
Amendment of pleadings - Reason for adding proviso is to curtail delay and expedite
hearing of cases. (Para 10)
(C) Civil P.C. (5 of 1908), O.6, R.17, Proviso - PLEADINGS - AMENDMENT -
Amendment of pleadings - Due diligence - Suit for mandatory injunction restraining
defendant from obstructing lane in suit property - Defendant seeking amendment of
written statement to file partition agreement after closure of evidence - Defendant did not
mention about agreement at time of her evidence - By filing same she wanted to retract
what she pleaded in written statement - She failed to substantiate inordinate delay in
filing application - Amendment cannot be allowed.
2005 AIR SCW 4645, Rel. on. (Paras 11, 13)
(D) WORDS AND PHRASES - Words and Phrases - 'Due diligence' - It means such
diligence as a prudent man would exercise in conduct of his own affairs. (Para 11)
anjit Kumar, Sr. Advocate, S.N. Gupta, Vikrant Bhardwaj, B.B. Singh and Arvind Kumar
Gupta, for Appellant; Altaf Ahmad, Sr. Advocate, Nitin Bhardwaj and Ms. Garima
Prashad, for Respondent.
Judgement
1 . P. SATHASIVAM, J. :- Leave granted.
2. This appeal is directed against the order dated 22-11-2006 passed by the learned single
Judge of the High Court of Delhi in C.M..(Main) No. 136 of 2005 whereby the High
Court allowed the petition filed by the respondent herein.
3. Brief facts :
The appellant and the respondent, being members of Adarsh Bhawan House Building Co-
operative Society, Delhi were jointly allotted a plot bearing No. 13/20, Punjabi Bagh
Extension, New Delhi admeasuring 426 sq. yds. vide perpetual lease deed dated 12-05-
1981. After the allotment, the plot was partitioned with the mutual consent of the parties.
The front portion was allotted to the appellant and the back portion was allotted to the
respondent. The appellant raised construction in the year 1983 and completed the same in
the year 1984. The respondent also started raising the construction on the back portion
and completed the same in the year 1985. Both the parties were in use and occupation of
their respective portions of the property after the respective construction. In the year
1986, the respondent herein filed a suit for mandatory injunction being Suit No. 261 of
1986 alleging that the drive way, which is 10' wide from gate facing 30' road upto the
road facing 15' vide service lane at the back, has been encroached upon by the appellant
and the appellant is not permitting him to use the drive way. Written statement was filed
and the witnesses were examined. On 12-5-2004, the appellant herein filed an application
under Order VI, Rule 17 read with Section 151, CPC for amendment of written statement
and sought the permission of the Court to file a written agreement executed between the
parties on 10-9-1982. The respondent herein filed a reply to the application denying the
execution of the agreement and claimed that the same is forged and fabricated document.
The trial Court, after hearing the arguments, allowed the amendment application on 18-
11-2004. Against that order, the respondent herein filed a C.M.(Main) No. 136 of 2005
before the High Court of Delhi. By order dated 22-11-2006, the High Court allowed the
petition and set aside the order passed by the trial Court on 18-11-2004 in the amendment
application. Aggrieved by the said order, the appellant preferred the present appeal by
way of special leave before this Court.
4. Heard Mr. Ranjit Kumar, learned senior counsel appearing for the appellant and Mr.
Altaf Ahmed, learned senior counsel appearing for the respondent.
@page-SC2236
5. The respondent herein (plaintiff) filed a Suit No. 261 of 1986 on the file of Senior Sub-
Judge, Delhi praying a decree for mandatory injunction against the defendant (appellant-
herein) to remove all obstructions at point "X" and lock at point "Y" in the site plan of the
property No. 13/20, Punjabi Bagh Extn., New Delhi and also not to put the lock at main
gate of the property. In the same prayer, the plaintiff has prayed that the defendant may
further be directed not to obstruct the plaintiff, his family members or relations from
using the common drive way from point "Y" to "Z" in the site plan. The said suit was
filed on 23-05-1986, the defendant filed a written statement even in the year 1986 itself.
While so, on 12-05-2004, the defendant filed an application for amendment of written
statement under Order VI, Rule 17 read with Section 151, CPC. The main reason for
seeking the amendment in the written statement is that the defendant is the housewife and
earlier was assisted by his son, namely, Sunit Gupta, who was a Chartered Accountant.
He died at the young age i.e. in 1998. According to the defendant, he was following the
litigation and the document/agreement pertaining to the parties was in his custody. Only
her another son, namely, Navneet Agrawal searched the papers/documents of his brother
Sunit Gupta and located an agreement dated 10-09-1982. Since the said agreement is
material one and has a bearing on the dispute between the parties and the execution of the
same is admitted by the plaintiff, her application may be allowed by permitting the
defendant to raise the plea of the agreement dated 10-09-1982 in her written statement
and mark the same as a document of the defendant.
6. The said application was resisted by the plaintiff by filing an objection. It was stated
that the suit was filed by the plaintiff in the month of May, 1986 and after more than 18
years, the present application has been moved with a view to frustrate the claim of the
plaintiff. The trial has completed and after the final arguments when the defendant Came
to know that she is going to lose her case she is changing her stance by filing the present
application for amendment in the written statement. It was further stated that the alleged
agreement/partition dated 10-09-1982, which itself is not admissible in the eye of law
since it is a forged document and on the basis of the said document, the proposed
amendment cannot be allowed.
7. The Civil Judge, based on the claim of both the parties, particularly accepting the
explanation offered by the defendant allowed the said application and permitted the
defendant to incorporate the proposed amendments in the written statement on payment
of cost of Rs. 3,000/-. Questioning the said order, the plaintiff has filed a C.M. (Main)
No. 136 of 2005 before the High Court of Delhi. On going through the entire materials
and details, namely, filing of the suit in the year 1986, the application for amendment of
written statement filed only in 1994 and of the fact that nothing has been stated in the
written statement as well as in her evidence by the impugned order set aside the order of
the trial Court and rejected the application filed by the defendant seeking to amend the
written statement. Aggrieved by the said order of the High Court, the defendant has filed
the above appeal by way of special leave.
8. In order to find out whether the application of the defendant under Order VI, Rule 17
for amendment of written statement is bona fide and sustainable at this stage or not, it is
useful to refer to the relevant provisions of CPC. Order 6, Rule 17 reads thus :
"17. Amendment of pleadings. - The Court may at any stage of the proceedings allow
either party to alter or amend his pleadings in such manner and on such terms as may be
just, and all such amendments shall be made as may be necessary for the purpose of
determining the real questions in controversy between the parties :
Provided that no application for amendment shall be allowed after the trial has
commenced, unless the Court comes to the conclusion that in spite of due diligence, the
party could not have raised the matter before the commencement of trial."
This rule was omitted by the Code of Civil Procedure (Amendment) Act, 1999. However,
before the enforcement of the Code of Civil Procedure (Amendment) Act, 1999, the
original rule was substituted and restored with an additional proviso. The proviso limits
the power to allow amendment after the commencement of trial but grants discretion to
the court to allow amendment if it feels that the party could not have raised the matter
before the commencement of trial
@page-SC2237
in spite of due diligence. It is true that the power to allow amendment should be liberally
exercised. The liberal principles which guide the exercise of discretion in allowing the
amendment are that multiplicity of proceedings should be avoided, that amendments
which do not totally alter the character of an action should be granted, while care should
be taken to see that injustice and prejudice of an irremediable character are not inflicted
upon the opposite party under pretence of amendment.
9. With a view to shorten the litigation and speed up the trial of cases Rule 17 was
omitted by amending Act 46 of 1999. This rule had been on the statute for ages and there
was hardly a suit or proceeding where this provision had not been used. That was the
reason it evoked much controversy leading to protest all over the country. Thereafter, the
rule was restored in its original form by amending Act 22 of 2002 with a rider in the
shape of the proviso limiting the power of amendment to some extent. The new proviso
lays down that no application for amendment shall be allowed after the commencement
of trial, unless the court comes to the conclusion that in spite of due diligence, the party
could not have raised the matter before the commencement of trial. But whether a party
has acted with due diligence or not would depend upon the facts and circumstances of
each case. This would, to some extent, limit the scope of amendment to pleadings, but
would still vest enough powers in courts to deal with the unforeseen situations whenever
they arise.
10. The entire object of the said amendment is to stall filing of applications for amending
a pleading subsequent to the commencement of trial, to avoid surprises and the parties
had sufficient knowledge of the other's case. It also helps in checking the delays in filing
the applications. Once, the trial commences on the known pleas, it will be very difficult
for any side to reconcile. In spite of the same, an exception is made in the newly inserted
proviso where it is shown that in spite of due diligence, he could not raise a plea, it is for
the court to consider the same. Therefore, it is not a complete bar nor shuts out
entertaining of any later application. As stated earlier, the reason for adding proviso is to
curtail delay and expedite hearing of cases.
11. Keeping the above broad principles in mind, let us ascertain whether the defendant
has justiciable cause to file an application praying for amendment of a written statement
for bringing an agreement dated 10-09-1982. We have already referred to the fact that the
plaintiff had approached the court seeking a decree for mandatory injunction as early as
on 1986. We also refer to the fact that within a short duration i.e. in 1986 itself, the
defendant has filed a written statement. Absolutely, there is no whisper about the prior
partition agreement dated 10-09-1982. No doubt, in the application for amendment, it
was stated that her son who is a Chartered Accountant all along was looking after this suit
and he died in the year 1998. It is also available from the very same application that apart
from her first son, namely, Sunit Gupta, defendant has another son by name Navneet
Agarwal. Admittedly, the son who looking after the suit was none else than a Chartered
Accountant. In such circumstances, if the alleged agreement dated 10-09-1982 between
the plaintiff and defendant was in existence nothing prevented her son, Chartered
Accountant, to bring it to the notice of her counsel and refer it in the written statement
filed in the year 1986. It is relevant to mention that in the reply, the plaintiff has
specifically denied the same and asserted that the alleged agreement/partition deed dated
10-09-1982 is a forged document and based on the same, the proposed amendment
cannot be allowed. It is also not in dispute and best known to both parties the suit which
is of the year 1986 came to be taken up for trial only in 2004 and admittedly on the date
of filing of the petition for amendment, the trial was on the verge of completion. It was
brought to our notice that both sides have closed their evidence and completed their
argument, but only at this stage the defendant filed the said application for amendment of
her written statement. As discussed above, though first part of Rule 17 makes it clear that
amendment of pleadings is permitted at any stage of the proceeding, the proviso imposes
certain restrictions. It makes it clear that after the commencement of trial, no application
for amendment shall be allowed. However, if it is established that in spite of "due
diligence" the party could not have raised the matter before the commencement of trial
depending on the circumstances, the court is free to order such
@page-SC2238
application. The words "due diligence" has not been defined in the Code. According to
Oxford Dictionary (Edition 2006), the word "diligence" means careful and persistent
application or effort. "Diligent" means careful and steady in application to one's work and
duties, showing care and effort. As per Black's Law Dictionary (Eighth Edition),
"diligence" means a continual effort to accomplish something, care; caution; the attention
and care required from a person in a given situation. "Due diligence" means the diligence
reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a
legal requirement or to discharge an obligation. According to Words and Phrases by
Drain-Dyspnea (Permanent Edition 13A) "due diligence", in law, means doing everything
reasonable, not everything possible. "Due diligence" means reasonable diligence; it
means such diligence as a prudent man would exercise in the conduct of his own affairs.
It is clear that unless the party takes prompt steps, mere action cannot be accepted and
file a petition after the commencement of trial. As mentioned earlier, in the case on hand,
the application itself came to be filed only after 18 years and till the death of her first son
Sunit Gupta, Chartered Accountant, had not taken any step about the so-called agreement.
Even after his death in the year 1998, the petition was filed only in 2004. The explanation
offered by the defendant cannot be accepted since she did not mention anything when she
was examined as witness.
12
. As rightly referred to by the High Court in Union of India vs. Pramod Gupta (dead) by
L.Rs. and others,(2005) 12 SCC 1, this Court cautioned that delay and laches on the part
of the parties to the proceedings would also be a relevant factor for allowing or
disallowing an application for amendment of the pleadings. 2005 AIR SCW 4645
13. As observed earlier, the suit filed in the year 1986 is for a right of passage between
two portions of the same property dragged for a period of 21 years. In spite of long delay,
if acceptable material/materials placed before the court show that the delay was beyond
their control or diligence, it would be possible for the court to consider the same by
compensating the other side by awarding cost. As pointed out earlier, when she gave
evidence as D.W. 1, there was no whisper about the written document/ partition between
the parties. On the other hand, she asserted that partition was oral. Now by filing the said
application, she wants to retract what she pleaded in the written statement, undoubtedly it
would deprive the claim of the plaintiff. We are also satisfied that she failed to
substantiate inordinate delay in filing the application that too after closing of evidence
and arguments. All these aspects have been considered by the High Court. We do not find
any ground for interference in the order of the High Court, on the other hand, we are in
entire agreement with the same.
14. In the light of the above discussion, the appeal fails and the same is dismissed. No
costs. It is made clear that we have not expressed anything on the stand taken by both
parties in the suit and it is for the trial Court to dispose of the same uninfluenced by any
of the observation made above within a period of three months from the date of receipt of
copy of this judgment.
Appeal dismissed.
AIR 2008 SUPREME COURT 2238 "Commr. of Central Excise, Vapi v. M/s. Kraftech
Products Inc."
Civil Appeal No. 2597 of 2005 with 325-326 of 2006 and 1029 of 2007 and etc., D/- 14
-3 -2008.
Commissioner of Central Excise, Vapi v. M/s. Kraftech Products Inc.
Standards of Weights and Measures Act (60 of 1976), S.83 - Standards of Weights and
Measures (Packaged Commodities) Rules (1977),R.34 - WEIGHTS AND MEASURES -
APPLICABILITY OF AN ACT - CENTRAL EXCISE - Exemption - Applicability of
R.34 - Package offered to sell containing identical commodity in three sachets - Weight
of each sachet is below 3 grams - Net weight of all three sachets is, therefore, below
prescribed weight of 10 grams - It is 'multi-piece package' - Same is covered by
exemption under R.34 - Thus S.4A of Central Excise Act would not be applicable.
Central Excise Act (1 of 1944), S.4A.
2004 (163) ELT 160 (Mad), Overruled.
2008 (198) ELT 506, Held Per incuriam. (Paras 18, 23)
2007 (215) ELT 327 (SC) (Ref.) 22
2006 (198) ELT 508 (Tri-LB) (Held Per incuriam) 13, 23
@page-SC2239
2004 (163) ELT 160 (Mad) (Overruled) 12, 13, 22, 23

Ms. Binu Tamta (for B. Krishna Prasad), for Appellant; Ravinder Narain, Ms. Sonu
Bhatnagar, Ajay Agarwal, Ms. Mallika Joshi, Rajan Narain and Monish Panda (for M. P.
Devanath), for Respondent.
Judgement
1. S. B. SINHA. J. :- Interpretation of Rule 34 of the Standards of Weights and Measures
(Packaged Commodity) Rules, 1977 is in question in these appeals which arise out of the
Judgments and orders dated 10th May, 2004 and 23rd March, 2005 passed in Appeal
No.E/293/03-MUM and E/182-183/04-NB(A) by the Customs, Excise and Service Tax
Appellate Tribunal, Mumbai and Customs, Excise and Service Tax Appellate Tribunal,
New Delhi respectively.
2. We, however, may notice the factual matrix of the matter from C.A. No, 2597 of 2005.
3. Respondent manufactures hair dye. It is packed in pouches each containing 3 gms. 3
pouches (sachets) are sold in one packet. The net weight of each pouch, as also the net
weight of the commodity in 3 pouches and the maximum rate is printed on the pouches.
4. Valuation of excisable goods for purposes of charging the duty of excise is laid down
in Section 4 of the Central Excise Act, 1944 in the following terms :
"4. Valuation of excisable goods for purposes of charging of duty of excise :
(1) Where under this Act, the duty of excise is chargeable on any excisable goods with
reference to value, such value shall, subject to the other provisions of this section, be
deemed to be -
(a) the normal price thereof, that is to say, the price at which such goods are ordinarily
sold by the assessee to a buyer in the course of wholesale trade for delivery at the time
and place of removal, where the buyer if not a related person and the price is the sole
consideration for the sale."
5. Section 4A of the Act provides for mode of valuation envisaged under Section 4. It
reads as under :-
"4A. Valuation of excisable goods with reference to retail sale price :
(1) The Central Government may, by notification in the Official Gazette, specify any
goods, in relation to which it is required, under the provisions of the Standards of Weights
and Measures Act, 1976 or the Rules made thereunder or under any other law for the time
being in force, to declare on the package thereof the retail sale price of such goods, to
which the provisions of subsection (2) shall apply.
(2) Where the goods specified under subsection (1) are excisable goods and are
chargeable to duty of excise with reference to value, then, notwithstanding anything
contained in section 4, such value shall be deemed to be the retail sale price declared on
such goods less such amount of abatement, if any, from such retail sale price as the
Central Government may allow by notification in the Official Gazette.
(3) The Central Government may, for the purpose of allowing any abatement under sub-
section (2), take into account the amount of duty of excise, sales tax and other taxes, if
any, payable on such goods.
(4) If any manufacturer removes from the place of manufacture any excisable goods
specified under sub-section (1) without declaring the retail sale price of such goods on the
packages, or declares a retail sale price which does not constitute the sole consideration
for such sale, or tampers with, obliterates or alters any such declaration made on the
packages after removal, such goods shall be liable to confiscation.
Explanation 1: For the purposes of this section, "retail sale price" means the maximum
price at which the excisable goods in packaged form may be sold to the ultimate
consumer and includes all taxes local or otherwise, freight, transport charges, commission
payable to dealers, and all charges towards advertisement, delivery, packing, forwarding
and the like, as the case may be, and the price is the sole consideration for such sale.
Explanation 2 :
(a) Where on the package of any excisable goods more than one retail sale price is
declared, the maximum of such retail sale price shall be deemed to be the retail sale price
for the purposes of this section.
(b) Where different retail sale prices are declared on different packages for the sale of any
excisable goods in packaged form in different areas, each such retail sale price shall be
the retail sale price for the purposes of valuation of the excisable goods intended to be
sold in the area to which the retail
@page-SC2240
sale price relates."
6. Indisputably, the commodity in question is governed under the Standards of Weights
and Measures Act, 1976. Indisputably again the Central Government in exercise of the
powers conferred upon it by Section 83 of the Act framed Rules known as the Standards
of Weights and Measures (Packaged Commodity) Rules, 1977 (the Rules).
7. Rule 2 contains the interpretation section. A distinction is made in regard to
"combination package", "group package" and "multi-piece package".
Multi-piece package is defined in Rule 2(j) to mean :-
(j) "multi-piece package means a package containing two or more individually packaged
or labeled pieces of the same commodities of identical quantity, intended for retail sale,
either in individual pieces or the package as a whole;
Illustration. - A package containing "5 toilet soap cake, net weight 20 g each, total net
weight 100 g" is a multi-piece package."
8. Rule 6 provides for declarations to be made on every package, which reads as under :-
"6. Declaration to be made on every package. - (1) Every package shall bear thereon or
on a label securely affixed thereto a definite, plain and conspicuous declaration, made in
accordance with the provisions of this chapter as to -
(a) the name and address of the manufacturer, or where the manufacturer is not the
packer, of the packer or with the written consent of the manufacturer, of the
manufacturer;
(b) the common or generic names of the commodity contained in the package.
Explanation. - Generic name in relation to a commodity means the name of the genus of
the commodity, for example, in the case of common salt, sodium chloride is the generic
name;
(c) the net quantity, in terms of the standard unit of weight or measure of the commodity
contained in the package or where the commodity is packed or sold by number, the
number of the commodity contained in the package;
(d) the month and year in which the commodity is manufactured or pre-packed;
[(e) * * * ] (omitted by GSR 521 (E), dated 26-6-1995)
(f) the [retail sale price] of the package;
(g) where the sizes of the commodity contained in the package are relevant, the
dimensions of the commodity, contained in the package and if the dimensions of the
different' pieces are different, the dimensions of each such different piece;
(h) such other matters as are specified in these rules :"
Rule 12 provides for the manner in which the declaration of quantity shall be expressed,
sub-rule (2) whereof reads as under :-
"12. Manner in which declaration of quantity shall be expressed. -
(1) ... .....
(2) Except in the cases of commodities specified in the Fifth Schedule, the declaration of
quantity shall be in terms of the unit of -
(a) mass, if the commodity is solid, semiviscous or mixture of solid and liquid;
(b) length, if the commodity is sold by linear measure;
(c) area, if the commodity is sold by area measure;
(d) volume, if the commodity is liquid or is sold by cubic measure; or
(e) number, if the commodity is sold by number :
Provided that in the case of solid commodity contained in a free-flowing liquid which is
sold as such, the declaration of quantity shall be in terms of the drained weight of such
solid commodity."
Schedule V appended to the Rules specifies the commodity in packaged form which may
be sold by weight, measures or numbers as shown against the commodity, item No. 25
whereof reads as under :-
"25. Cosmetics including creams, Weight

shampoo, lotions and perfumes. or measure"
Rule 17 of the Rules mandates additional declarations to be made on multi-piece

packages.
9. Admittedly the valuation of the commodity for the purpose of payment of excise duty
was carried out in terms of Section 4 of the Act. Respondent, however, was served with
eight show cause notices dated 29th August, 2001, 26th March, 2001, 4th July,
@page-SC2241
2001, 3rd September, 2001, 30th October, 2001, 8th January, 2002, 27th March, 2002 and
16th May, 2002 in terms of Section 11A of the Act asking it as to why :-
(i) Differential Central Excise duty should not be demanded and recovered under the
provisions of Section 11A(1) of the Central Excise Act, 1944.
(ii) Penalty should not be imposed under Rule 173Q of Central Excise Rules 1944/ now
Rule 25 of the Central Excise (No.2) Rules, 2001.
(iii) Interest due under Section 11AA/ 11AB of the Act, should not be charged/recovered
from them."
Cause was shown to the said notices.
10. The Deputy Commissioner, Central Excise, Division-II, Vapi by two separate orders
dated 25th October, 2001 and 12th July, 2002 rejected the contention of the respondent
that it was entitled to exemption by operation of the Rules in respect of their product and
confirmed the demand of Central Excise duty and imposed a penalty of equal amount as
proposed in the show cause notices.
11. Appeals preferred thereagainst by the assessee/respondent to the Commissioner
(Appeals) were allowed by an order dated 24th October, 2002. Appeal preferred by the
appellant before the Customs, Excise and Service Tax Appellate Tribunal, Mumbai was
dismissed by reason of the impugned judgment dated 10th May, 2004 stating :-
"2. The main ground of the Departmental Appeal is that the exemption under the said
Rule 34 does not apply to a case where several units are packaged together. We have
perused the relevant provisions under the Rule 34. The exemption under the same clearly
applies to any package containing a commodity if the net weight of the commodity is 20
gms. or less. The language of the rule does not warrant the interpretation sought to be
placed by the department that since the package contains 3 units, the exemption under the
rule is not available. We are of the view that since the combined weight of the 3 units of
the impugned goods is less than the prescribed weight of 20 gms. the Commissioner
(Appeals) has rightly concluded in his impugned order that the respondents are eligible
for exemption under the said Rule 34 and consequently they are entitled to assessment
under Section 4 of the Central Excise Act, 1944 instead of under Section 4A of the said
Act."
12. The judgment of the appellate authority as also the Tribunal have been questioned by
the department contending that as admittedly the commodity is sold in 3 sachets, each
one of them can be sold separately, Rule 34 of the Rules will have no application. How
the product, according to the learned counsel for the appellant, is known in the market,
should be the test to find out as to how it is sold whether in unit or by weight or measure.
Strong reliance in this behalf has been placed on a decision of this Madras High Court in
Varnica Herbs vs. C.B.E. and C., New Delhi : 2004 (163) ELT 160 (Mad.).
13. Mr. Ravinder Narain and Mr. Monish Panda, learned counsel appearing on behalf of
the respondents, on the other hand, would submit that keeping in view the provisions of
Rule 12(2) of the Rules, the commodity can be sold by weight or measure. It was so
intended to be done as the weight of each sachet has been notified on the packet. It was
submitted that the decision of the Madras High Court in Varnica Herbs (supra) was
rendered per incuriam as has been held by a larger Bench of the Tribunal in
Commissioner of Central Excise, Mumbai vs. Urison Cosmetics Ltd. : 2006 (198) ELT
508 (Tri.-LB).
It was furthermore submitted that the notices under Section 11A of the Act having been
issued beyond the period of six months, the same were barred by limitation.
14. The commodity is in powder form. It is sold in a multi piece-package. Admittedly the
product is packed in small packets each containing three sachets. Each sachet discloses
the weight of its contents. The packet containing the three sachets also disclose the total
weight and the number of sachets. The weight of the product in each sachet is admittedly
below 3 gms.
15. It is beyond any doubt or dispute that the commodity in question is being sold in
'multipiece package'. Identical quantity of commodity is packed in each sachet. Yet again
admittedly three sachets are packed in one packet. The weight of three sachets is 9 gms,
that is, less than the prescribed weight of 10 gms.
16. Rule 12, as noticed hereinbefore, provides for the manner in which declaration of
quantity shall be expressed. Sub-rule (2) of Rule 12 would not apply to the commodities
@page-SC2242
mentioned in Schedule V, Item No. 25 of Schedule V provides for a declaration to be
expressed in terms of weight or measure. The packet describes the commodity in
question. It discloses also the weight. It not only discloses the weight contained in each
sachet but also discloses the weight contained in the packet of three sachets. In view of
Schedule V appended to the Rules, therefore, the intention of the manufacturer to sell the
commodity by weight is explicit.
17. Rule 17 provides for additional declarations to be made on multi-piece packages. It
envisages declaration of the quantity and the sale price thereof on each of the packets
when the quantity is sold in the multi-piece package. Requirements of Rule 17 have been
complied with. Section 4A of the Act would apply only when it is statutorily required to
apply the provisions of the Rules.
18. Rule 34 contains an exemption clause. The exemption clause would apply if the
commodity is sold by weight or measure, subject of course to the condition that the net
weight of the commodity is 10 gms. or less. This legal requirement in this case also
stands complied with. Once it is held that the Rules have no application in respect of the
commodity as marketed and sold by the respondent, Section 4A of the Act will have no
application. The appellate authority as also the Tribunal, in our opinion, therefore, were
right in their decisions.
19. Our attention, however, has been drawn to a Circular Letter dated 2nd November,
1999 issued by the Central Board of Excise and Customs wherein purportedly for the
purpose of clarification of doubt in regard to the claim made by certain manufacturers
that there were no statutory requirements for declaration of retail sale price on such
packages under the Standards of Weights and Measures Act, 1976 and the Rules framed
thereunder, it was stated :-
"Rule 6 of the aforesaid Rules requires declarations of certain particulars to be made on
every package intended for retail sale. Retail sale price of the package is one such detail
to be declared by a manufacturer/packer. Further rule 17 (1) provides for declaration of
certain additional details in respect of multi-piece packages such as sale price of the
multipiece package and the number of individual pieces of the commodity contained in
such packages. However under rule 34, exemption in respect of certain packages have
been provided. In particular sub-rule (b) to rule 34 provides that the MRP provisions do
not apply to a package containing a commodity if the net weight or measure of a
Commodity is 10 grams or 10 ml or less, if sold by weight or measure. Some
manufacturers have claimed that the multi-piece package containing Individual pieces of
less than 10 grams or 10 ml or less, even though the net quantity of such multi-piece
package exceeds 10 grams or 10 ml would be covered by the above exemption. Hence
they would not required to be assessed to excise duty on the MRP prices under section 4A
of Central Excise Act, 1944.
3. The matter has been examined in consultation with the Law Ministry. The Law
Ministry has given the opinion that the exemption under rule 34(b) is applicable to a
package containing a commodity and this exemption does not appear to be applicable to
multi piece packages.
4. Based on the above opinion of the Law Ministry, it is clarified that the declaration of
retail sale price of multi-piece packages and individual pieces contained in such multi-
piece package (if such individual pieces are capable of being sold separately) is
statutorily required under rule 17 (1) of the Standards of Weights and Measures
(Packaged Commodities) Rules, 1977.
5. In view of the above statutory requirements for declaration of retail sale price under the
Standards of Weights and Measures (Packaged Commodities) Rules, 1977 for multi-piece
packages, it is clarified that in respect of multi-piece packages of a commodity intended
for retail sale and which are notified under section 4A, they shall be assessed to excise
duty under the provisions of section 4A of Central Excise Act, 1944."
20. The opinion of the Law Ministry is not based on any legal principle. Evidently in so
doing it did not take into consideration the effect of Rule 12. It proceeded on the premise
that Rule 34(b) would be applicable to a package containing a commodity and as such the
exemption would not be applicable to "multi piece package". "Multi piece package" in
terms of Rule 2(j) is also a package containing a common commodity. To hold it
otherwise would be violating the plain language of the statutory Rules.
21. Rule 34(b) provides for exemption
@page-SC2243
from the application of the Rules. The expression contained therein "that nothing
contained in these rules shall apply to any package containing a commodity" is of wide
amplitude. There cannot be any doubt whatsoever that Rule 34 would apply in a case of
this nature if it is sold by weight or measure. The respondents not only do so, they are
permitted to do in terms of Schedule V read with sub-rule (2) of Rule 12 of the Rules.
22. In Jayanti Food Processing (P) Ltd. v. Commissioner of C.Ex., Rajasthan [2007 (215)
ELT 327 (S.C.)], wherein one of us (Sirpurkar, J.) was a member, this Court stated the
law, thus :
"...We have already explained earlier that the nature of sale is of no consequence. The
material consideration is that such sale should be in a 'package' and there should be a
requirement in the SWM Act or the Rules made thereunder or any other law for
displaying the MRP on such package. We find the requirement to be only under Rule 6(1)
(f) which applies to 'retail package' meant for 'retail sale'. What is required to be printed
under Rule 6(1)(f) is the 'retail sale price' of the package. 'Retail sale price' is defined
under Rule 2(r) and it suggests that the 'retail sale price' means the maximum price at
which the commodity in packaged form may be sold to the ultimate consumer. The Rule
further suggests the manner in which the 'retail sale price' shall be mentioned on the
package. It is the case of the appellant that the four litres pack was not meant to be sold as
the package to the ultimate consumer and the sale was only to the intermediary or as the
case may be, to the hotel. If that was so, then there is no necessity much less under Rule
6(1)(f) to mention the 'retail sale price' on the package."
In Varnica Herbs (supra) whereupon reliance has been placed by the learned counsel for
the appellant, the Madras High Court opined :-
"13. The next contention of the learned counsel for the petitioner is that the effect of the
circular is to whittle down the exemption contemplated under Rule 34(1)(b)of the Rules.
Relying upon the said rule, it is the contention of the petitioner that since the weight of
the individual package is 8 grams, which is less than 10 grams, the petitioner is not
expected to declare MRP or the net weight of the individual package. It is also the
contention of the petitioner that merely because sachets are placed in a mono-carton that
would not make the pack a multipiece package and Rule 17 is not applicable."
Construing Rule 2(j) read with Rule 6 the learned Judge opined :-
"15. A perusal of these provisions makes it clear that articles kept in separate pouches by
the petitioner can be termed as multipiece package and such pouches can be sold
individually in single piece or together in a mono-carton of six pouches. The contention
of the petitioner that exemption under Rule 34 would be applicable is not acceptable.
Even though the net weight is less than 10 grams, it is evident that article is not intended
to be sold either by weight or by measure as contemplated under Rule 34(b). The
contention that clarification issued by the respondent No. 1 has the effect of whittling
down the exemption granted under Section 34 is not at all acceptable."
23. We have noticed hereinbefore that each package offered to sell to the customer
contains three sachets. Net weight of all the three sachets are stated thereon. It is a
"multipiece package" which is capable of being offered to sell as such only because a
package is a "multi-piece package", the same cannot be taken out of the umbrage of
exemption clause contained in Rule 34 of the Rules. Why the commodity cannot
independently be sold either by weight or measure is beyond our comprehension
particularly when Rule 12(2) permits the same. The illustration appended to Rule 2(j)
bring out a clearer picture. It states that the combined net weight shall be taken into
consideration for the purposes mentioned therein. After combined weight is taken into
consideration for the purpose of applicability of the Rules, there is no reason as to why
the said purpose shall not be considered to be a relevant factor for applying the
exemption provision. Assuming Rule 2(j) was otherwise vague or unambiguous,
illustration appended thereto brings out the true meaning and purport thereof. The
reasoning adopted by the Madras High Court in Varnica Herbs (supra) does not appeal to
us.
It was rendered per incuriam. It was held to be so in Urison Cosmetics Ltd. (supra) by a
Larger Bench of the Customs, Excise and Service Tax Appellate Tribunal. We agree with
the said opinion of the Tribunal.
24. For the reasons abovementioned the impugned judgment does not warrant any
@page-SC2244
interference. The Civil Appeal Nos. 2597, 2575, 2703-2704 of 2005, 325-326 of 2006 fail
and are dismissed with costs. Counsel's fees assessed at Rs. 25,000/- in each case.
Civil Appeal Nos. 1029, 5069-5073 of 2007 [Re: M/s. Aero Pharma (Silvassa) Inc.]
25. The assessee manufactures Lip Smoother. Each unit contains 4.3 ml. They make a
package of 72 pieces of lip smoother. The Revenue proceeded on the basis that a package
containing 72 pieces of lip smoother would be a multi-piece package.
Civil Appeal No. 1174 of 2007 [Re: M/s. Alfa Packaging]
26. The assessee manufactures Shampoo which is packed in sachets. Each sachet contains
shampoo below 10 ml. It is packed in a carton containing more than 500 pieces. Such
carton, according to the Revenue, is a multi-piece package.
When a lip smoother or a shampoo is packed in a carton keeping in view the quantity
contained therein, the same cannot be said to be for retail sale. No person would
ordinarily purchase for one's own use 72 lip smoothers or 500 pieces of shampoo.
Thus, it is not a case where the goods are being sold in multi-piece package. Each sachet
or each lip smoother must be sold as a unit.
27. Civil Appeal Nos. 1029, 5069-5073 of 2007 and Civil Appeal No. 1174 of 2007 are
allowed with costs. Counsel's fees assessed at Rs. 25,000/- in each case.
Order accordingly.
AIR 2008 SUPREME COURT 2244 "DLF Universal Ltd. v. Director General,
Investigation and Registration"
DLF Universal Ltd. and Anr. v. Director General, Investigation and Registration and Anr.
(A) Monopolies and Restrictive Trade Practices Act (54 of 1969), S.2(o)(ii) -
MONOPOLIES AND RESTRICTIVE TRADE PRACTICES - RESTRICTIVE TRADE
PRACTICE - Restrictive trade practice - S.2(o) is exhaustive and not inclusive. (Para
18)
(B) Monopolies and Restrictive Trade Practices Act (54 of 1969), S.2(o)(ii), SD.36A -
MONOPOLIES AND RESTRICTIVE TRADE PRACTICES - RESTRICTIVE TRADE
PRACTICE - LAND - LEASE DEED - Restrictive Trade Practice - Colonizer allotted
huge land by State for development of Township - Land to revert back to Government if
construction is not made within stipulated time - One of plots earmarked for school,
allotted to complainant by executing lease deed - Colonizer subsequently allotting an
alternative plot to allottee - Possession not given - On complaint by allottee colonizer
agreeing to handover possession after executing fresh lease deed - Order passed by
Commission directing parties to execute fresh lease deed without altering commercial
terms - Order not challenged and attaining finality - Subsequent order directing
incorporation of some modified terms in fresh deed - Challenge against not tenable as
earlier order has attained finality. (Paras 25, 28)
2003 AIR SCW 1046 : AIR 2003 SC 1648 6, 11, 21
AIR 2001 PunjHar 233 5
Ravindra Narain, Ms. Meghalee Barthakur, Subrat Deb, Anil P. Chhabra and Rajan
Narain, for Appellants; A. Mariarputham, Ms. Aruna Mathur and B.K. Prasad (for P.
Parmeswaran), for Respondent.
Judgement
LOKESHWAR SINGH PANTA, J. :- M/s. DLF Universal Limited (first appellant herein)
and DLF Qutab Enclave Complex Educational Charitable Trust (second appellant herein)
have filed this appeal under Section 55 of the Monopolies and Restrictive Trade Practices
Act, 1969 [hereinafter referred to as 'the MRTP Act'] read with Order XX-A of the
Supreme Court Rules, 1966 against the judgment and final order dated 3rd July, 2006
recorded by the Monopolies and Restrictive Trade Practices Commission, New Delhi [for
short 'the Commission'] in M.A. No. 14 of 2004 (Review) in UTPE No. 350 of 1997
whereby and whereunder the Commission has directed the appellants to execute fresh
lease deed in favour of Raj Kamal, complainant - second respondent herein with
amendments suggested by the complainant - second respondent and to incorporate Clause
11(a) and (b) in the agreement to lease dated 1-12-1992 instead of Clause 4 in the draft
lease deed which provided for the refund in the event of termination of the lease deed.
2. Briefly stated the facts giving rise to the filing of the present appeal are as follows :-
M/s. DLF Universal Limited is a public
@page-SC2245
limited company registered and incorporated under the Indian Companies Act, 1956. It
purchased free hold lands at Gurgaon in the State of Haryana for setting up a colony
known as 'DLF Qutab Enclave Complex'. It applied for and was granted licence in terms
of the provisions of the Haryana Development and Regulation of Urban Areas Act, 1975
[for short 'the State Act']. M/s. DLF Universal Limited and other group of companies
created DLF Qutab Enclave Complex Educational Charitable Trust wherefor a large
number of sites were earmarked for construction of schools/community buildings in the
complex. In response to the advertisement issued by the appellants in November, 1991
Raj Kamal, complainant-second respondent applied for and was allotted Nursery School
site No. 3136 admeasuring 0.20 acre in DLF Qutab Enclave, Gurgaon. Later on, this site
was substituted by another site/plot No. 3101 admeasuring 0.35 acre after charging of
extra amount for additional land allotted to him. The complainant-second respondent
filed a complaint on 20-6-1997 before the Commission which was referred to the
Director General of Investigation and Registration [for short 'the DG'] - first respondent
herein. A Preliminary Investigation Report [PIR] was submitted by DG-first respondent
on 27th March, 1998 in which it was reported that the appellants have indulged in
restrictive and unfair trade practices within the meaning of Section 2(o)(i) and Section
36A of the MRTP Act. Taking cognizance of the PIR on 4-6-1998, the Commission
issued notice of enquiry to the appellants. The allegations made in the complaint by the
Complainant - second respondent were that the appellants had not handed over the
possession of the alternate plot to him on the plea that the Government of Haryana was
not recognizing the fourth party rights. During the preliminary investigation, it came to
light that at the time of advertisement by the appellants in November, 1991, the title of
the sites including the site/plot allotted to the complainant-second respondent was already
transferred by the first appellant to the second appellant on 27-11-1990. The first
appellant was required to construct at its own cost or get constructed by any other
institution or individual at its cost, schools/community buildings etc. on the land
transferred to them by the Government of Haryana under Section 3(a)(iv) of the State
Act. 25 different sites having a total area of 29,358 acres were earmarked for the purposes
of providing educational facilities which were transferred to the second appellant trust for
a sum of Rs. 1,05,000/- It was also provided that in case the appellants were unable to
construct the said site within the stipulated period, the same would automatically be
reverted to the State Government. In the PIR, the following unfair/restrictive trade
practices on the part of the appellants have been alleged in this transaction based on the
investigation :-
(i) The appellants (respondents before the Commission) despite not having the title of the
impugned sites issued advertisement in November, 1991 inviting applications for
allotment which is a deceptive and unfair trade practice within meaning of Section 36A of
the MRTP Act.
(ii) The Trust i.e. appellant No. 2 had leased out the sites to the fourth parties after 7-8-
1991 as per statement furnished during investigation by the second appellant to the DG. It
is also alleged that the second appellant was not allowed to create fourth party right at the
time of issuance of impugned advertisement in November, 1991. This tantamount to
unfair trade practices within the meaning of Section 36A of the MRTP Act.
(iii) Second Appellant created fourth party rights after 7-8-91 for a total consideration of
over Rs. 1.85 crore as against the nominal cost of Rs. 1,05,000/- paid by them to the first
appellant at the time of transfer. The allegation was that in terms of the guidelines issued
by the Director, Town and Country Planning, Haryana, Gurgaon [for short 'the DTCP]
vide their letter dated 25-10-1994 this difference of money was to be utilised for the
purpose of providing better amenities to the colony and for the benefit of residents
therein. It has been alleged in the PIR that the appellants have, therefore, manipulated the
prices as well as conditions of delivery of the impugned community sites for the purpose
of benefiting the Trust wherein the Directors of the appellant companies were interested.
The creation of the fourth party rights in the impugned sites contrary to the guidelines
issued by the DTCP is a restrictive trade practice which imposed unjustified cost on the
parties to whom fourth party rights has been created by the Trust in connivance with the
first appellant. Further, since the Trust have created fourth
@page-SC2246
party rights after 7-8-1991 the said trade practice constitutes deceptive and unfair trade
practices within the meaning of Section 36A of the Act.
(iv) The transfer deed entered into by the first appellant with the second appellant did not
make obligatory on the part of the second appellant to utilize the amount collected as
such for the purpose of providing better amenities to the residents of DLF Qutab Enclave.
Second Appellant was having a surplus of Rs. 5,489,223.86p. and Rs. 5,729,723.49p.
respectively at the end of 31st March, 1996 and 31st March, 1997 respectively. It has,
therefore, been alleged that the Trust has manipulated the prices and conditions of
delivery of impugned sites for its personal gain which is a restrictive trade practice.
(v) Originally site No. 3136 measuring 0.20 acre was allotted to the complainant/
informant on consideration of Rs. 4 lakhs and also a lease agreement dated 1-12-92 was
entered into for constructing and providing educational facilities by the lessee.
Subsequently, however, the appellants offered to the complainant/informant an alternate
site measuring 0.35 acre after receiving an additional payment of Rs. 2,96,204/- which
tantamount to unfair trade practice since the complainant/informant was not informed
that the previous site No. 3136 was subject to the revision of lay out plan.
(vi) The appellants raised maintenance bills for the nursery school plot No. 3136 for the
period from December, 92 to September, 93 though this plot was omitted in the revised
layout plan which is unfair trade practice.
(vii) Similarly, appellant-Trust collected lease amount from the complainant/informant
for the period from December, 92 to March, 94 in advance without handing over the plot
in question to the lessee.
3. The appellants in their counter reply to the complaint of the complainant-second
respondent inter alia denied the allegations stated in the complaint and maintained that
the notice of inquiry and the PIR do not set out the specific and precise allegations of
unfair/restrictive trade practices against them. It was also submitted that the appellants
had filed writ petition in the High Court of Punjab and Haryana inter alia challenging the
letter dated 9-2-1994 issued by the DTCP, whereby the appellants have been restrained
from creating and recognising any fourth party rights and the said letter was given
retrospective effect from 7-8-1991. The appellants then stated that they are not in a
position to handover the possession and the site/plot in the absence of the sanction of the
building plans by the authorities. It is also provided under the lease deed entered into
between the second appellant-Trust and the allottees that the possession of the site/ plot
can be given only upon sanction of building plans by appropriate authorities i.e. DTCP.
They also stated that the agreement was entered into between the second appellant-Trust
and the complainant-second respondent and not by the first appellant. Therefore, there
was no privity of contract between first appellant and the complainant-second respondent.
On these premises, the appellants submitted that they have not indulged in any sort of
unfair trade practices as alleged in the complaint.
4. On the controversial pleadings of the parties, the Commission framed the following
issues :-
(i) Whether the appellants (respondents before the Commission) have been indulging in
restrictive and unfair trade practices as alleged in the Notice of Enquiry?
(ii) Whether the alleged restrictive trade practices are not prejudicial to public interest?
(iii) Whether the alleged unfair trade practices are prejudicial to the interest of
consumer/consumers generally?
5
. It appears from the order of the Commission that on 21-08-2001 the learned advocates
appearing for both the parties stated that the question which arose for consideration in the
complaint filed by complainant-second respondent has been decided by the Division
Bench of the High Court of Punjab and Haryana in CWP No. 7245/1997 on 07-03-2001
and against the said judgment, special leave petition had been filed in this Court. In this
view of the matter, the Commission found that no purpose would be served to continue
with the present complaint and, accordingly, the matter was disposed of. reported in
AIR 2001 P and H 233
. Later on, an application was filed by the complainant-second respondent seeking to

review the order of the Commission. On 04-07-2003, the complainant-second 2003
AIR SCW 1046
@page-SC2247
respondent stated before the Commission that the possession of the site/plot to which he
was entitled to in terms of the agreement executed between the parties has still not been
handed over to him. Learned counsel appearing on behalf of the appellants before the
Commission in response to the review application stated that the appellants were willing
to hand over the possession of the site/plot to the complainant - second respondent which
was held up in view of the order passed by the High Court of Punjab and Haryana and
since the order of the High Court of Punjab and Haryana has been set aside by this Court
in Civil Appeal No. 4908/ 2002 along with Civil Appeal Nos. 4909-11/ 2002 titled DLF
Qutab Enclave Complex Educational Charitable Trust v. State of Haryana and Ors.
reported in [(2003) 5 SCC 622], therefore, now the appellants are ready and willing to
hand over the possession of the site/plot to the complainant-second respondent within six
weeks in terms of the agreement dated 01-12-1992. Again on 16-01-2004, the appellants
informed the Commission that they will execute a fresh lease deed in favour of the
complainant-second respondent provided the commercial terms as contained in the first
lease deed dated 1-12-1992 shall not be ordered to be modified or altered or deviated and
the appellants will indicate the amount of lease rent which shall be paid by the
complainant-second respondent within one week and thereafter the appellants shall sign
the modified lease deed and thereafter the possession of the site/plot shall be handed over
to the complainant-second respondent. On the basis of the pleadings of the parties, the
earlier order dated 21-08-2001 came to be modified accordingly by the Commission.
Again, the complainant-second respondent filed miscellaneous application seeking
incorporation of some proposed clauses in the new lease deed. The appellants submitted
their comments to the proposed amendments suggested in the draft lease deed to be
executed by the parties. The parties did not choose to examine any witness but they filed
their written submissions.
7. In the backdrop of the facts enumerated hereinabove, limited question before the
Commission was with regard to handing over the site/plot of the land to the complainant-
second respondent on a fresh lease deed supplied to him in place of the earlier lease deed
executed between the parties in December, 1992 and any deviation from the earlier lease
deed could be construed as unfair trade practices. The dispute was with regard to certain
provisions in the draft lease deed, which read and are discussed by the Commission in its
impugned order as under :-
(a) The complainant/informant has insisted on the insertion of clause 1.3 in the draft lease
deed with regard to "No Objection Certificate" (NOC) particularly that NOC is being
issued in pursuance of the agreement to lease entered into with you by the Trust on 1st
day of December, 1992 and does not confer on you any lien, right, title or ownership to
the aforesaid plot in question of the Trust till such time you make full payment of the
price of the plot along with other dues payable by you and the lease deed is executed in
your favour". It also seeks to provide that "during the interim period i.e. till the lease deed
is executed in your favour, you shall not transfer, sub-lease, mortgage or otherwise either
encumber the aforesaid plot or part with it without the prior approval in writing of the
Trust". The respondents have stated that the NOC in terms of the agreement dated 1-12-
1992 was issued to enable the proposed lessee to submit building plans to the authorities
as well as the lessor for approval. This was only required for interim period till the lease
is granted, so that there was no delay in getting the plans approved. Since NOC had
already been given to the complainant/informant, there were no requirements to give it
again and no provision for this need be made in the new lease deed. The purpose of NOC
was clearly indicated there whereas in the proposed amendment new implications are
being sought to be brought in which were not contemplated in the agreement dated 1-12-
92. It is, however, seen from the agreement dated 1-12-92 that the said NOC was issued
for the purpose of enabling the complainant/informant for getting the plans and
specifications approved. It is also on record that the NOC was issued in favour of the
complainant/informant by the respondents and since now the final deed is being proposed
to be executed between the parties, there should not be neither any need nor any
justification for incorporating this in the draft lease deed in the manner indicated by the
complainant/informant. This "No Objection Certificate" was issued on 1-12-92 with
@page-SC2248
regard to plot No. 3136 measuring 0.20 acres. It is, however, seen from the record that
this "No Objection Certificate" issued on 1-12-92 by the respondents was relating to plot
No. 3136 measuring 0.20 acres. The Commission noted that subsequently this plot was
changed to plot No. 3101 measuring 0.35 acres after charging extra amount from the
complainant/informant. Therefore, technically the NOC issued on 1-12-92 does not relate
to the plot which is proposed to be transferred to the complainant/ informant. In view of
this, we are unable to agree with the respondents that there is no requirement to give "No
Objection Certificate" for the plot proposed to be transferred to the
complainant/informant now and therefore, no provision is required in the draft lease deed.
The respondents are, therefore, directed that in order to enable the complainant/informant
to get the NOC for the new plot, the provisions of issue of NOC as incorporated in
clauses 5(i) and 5(ii) of the agreement dated 1-12-92 may be incorporated in the lease
agreement to be executed now.
(b) The second issue is with regard to the amendment in clause 2.3 of the draft agreement
in which it has been suggested by the complainant/informant that the lessor shall pay to
the lessee, the value of the said plot along with building and fixtures at the date of
determination of the lease, such value to be determined by a sole arbitrator agreed upon
by both the parties or by two arbitrators one by each party. The provision of Arbitration
Act, 1940 amended from time to time will be referred to at such occasion, if arises. The
respondents have argued that Clause 17 of the agreement dated 1-12-92 provides that on
determination of the lease, the lessee shall hand over the plot and the building constructed
thereon to the lessor. The complainant/informant is seeking through the amendment
introduction of an arbitration clause and handing over the plot along with the building
and fixtures after payment of the value which was not envisaged in the agreement dated
1-12-92. Since Clause 17 of the agreement dated 1-12-92 did not envisage payment to be
made to the lessee for the constructed building on the plot, no question of valuation arose.
The dispute resolution has been provided in clause 15 of the draft agreement and
therefore, there is no justification for an arbitration clause in this behalf. We have gone
through the agreement dated 1-12-92 and we find that in clause 25 of that agreement, the
dispute resolution is provided arbitration mechanism and not in the manner provided in
clause 15 of the draft agreement but at the same time it is also clear that clause 17 of the
agreement dated 1-12-92 does not envisage any payment for the constructed building on
the plot on resumption which is covered under clause 11 of the agreement dated 1-12-92.
Therefore, we hold that there is no justification in introducing the amendment to clause
2.3 in the manner suggested by the complainant/informant but at the same time, clause 15
of the draft agreement need to provide for the Arbitration clause as existing in the
agreement dated 1-12-92 and it is directed accordingly.
(c) The complainant has also suggested amendments to clause 4 of the draft agreement in
line with clause 11(a)(b) (i) and (ii) as appearing in the lease deed agreement dated 1-12-
92 which relates to the period for the completion of the construction of the building and
in the event of its failure to construct the school and other ancillary building, the lessor
will have the right to terminate the agreement to the lease. In the written arguments, the
respondents have stated that in clause 11 of the agreement dated 1-12-92, the proposed
lessee was required to complete the construction within a stipulated period which has
already expired and no request has been made for extension of time. The proposed lessee
has not submitted any building plans to the authority and no copy thereof has been sent to
the lessor and as such he is not entitled to any extension of time. The case of the
respondent, therefore, is that since the agreement dated 1-12-92 has already become
terminable; no further rights can be given to the lessee by including this as appearing in
the earlier agreement. It has also been stated that if the lessee does not agree to the
clauses suggested now in the draft agreement i.e. clauses 4.1, 4.2 and 4.3, the respondents
would be at liberty to take action for non-compliance.
From the perusal of records before us it is clear that clause 4 of the agreement is not on
the lines of the agreement dated 1-12-92. The arguments of the respondents that the
period of 24 months is already over and no request was made for extension of time
thereby making the agreement dated 1-12-92 is terminable is not convincing
@page-SC2249
because the respondents themselves have stated that they could not hand over the
possession of the land to the lessee due to the litigation in this matter. It has also come on
record that the appropriate authority of the Haryana Government has not sanctioned
building plan on the ground of the respondents having created the third party or fourth
party rights, a matter which has now been settled by the judgment of the Apex Court.
There is no reason therefore, in our opinion for respondents for not agreeing to this
amendment in clause 4, which should be carried out in the draft lease deed and it is
ordered accordingly.
(d) Another amendment which has been suggested to the draft lease deed by the
complainant/informant is with regard to clause 5.1 of the draft lease deed by which the
lessee undertakes "it shall not use the demised plot or building constructed thereon for
any purpose other than the activities incidental or ancillary to the said activities such as
residence of teachers, staff and other persons employed in connection with the running of
the school". The respondents have opposed this amendment on the ground that the
existing clause 5.1 of the draft lease deed is based on the decision of the Hon'ble Supreme
Court order dated 17-2-2003 in terms of the law laid down. We notice that under clause
5.1, the use of the land has been specifically indicated and it has been provided that the
lessee shall use that land strictly in accordance with the terms and conditions of the
layout plan, building plans, sanctions, approvals etc. granted by the concerned authorities
including but not limited to Director, Town and Country Planning, Haryana, Chandigarh".
Keeping in view the ratio of the judgment of the Hon'ble Supreme Court in which it has
been clearly laid down that the transferees will also be bound by the terms and conditions
of the licence and the right of control of the State and other regulatory measures will
continue, we find no justification in the amendment as suggested by the
complainant/informant in this clause and it is directed accordingly."
8. The Commission finally directed the appellants to modify the draft lease deed as
indicated in Para 7(a) to (d) above and furnish the final lease deed to the complainant-
second respondent within two weeks and hand over the possession of the plot for the
purpose it was leased out to him within two weeks of the execution of the draft lease deed
by the complainant-second respondent. The appellants were also directed to file the
affidavit of compliance within eight weeks.
9. Hence, the appellants by way of this statutory appeal have challenged the correctness
and validity of the impugned order of the Commission.
10. We have heard the learned counsel for the parties and perused the entire material on
record.
()
11
. Mr. Ravindra Narain, learned counsel appearing on behalf of the appellants, in support
of the appeal inter alia contended that the Commission has no jurisdiction to direct the
appellants to execute the fresh lease deed on terms and conditions in modification of the
standard draft lease deed to be executed by all such intended lessees and deviation or
modification of the standard draft lease deed would amount to breach of specific purpose
of the contract or any other contractual matter regarding implementation of agreement
etc. He submitted that the allegations made in the complaint by the complainant-second
respondent on the basis of which directions were issued by the Commission did not
constitute unfair trade practice under Section 36A of the MRTP Act nor do they constitute
restrictive trade practices under Section 2(o) of the MRTP Act. According to the learned
counsel, the Commission failed to appreciate that after the decision of this Court in DLF
Qutab Enclave Complex Educational Charitable Trust v. State of Haryana and Others
(2003) 5 SCC 622 whereby fourth party rights are recognised, the appellants have
prepared the standard form of lease deed for sites/plots earmarked for construction of
schools/community buildings in the complex and draft lease deed was handed over to the
complainant -second respondent but he has raised objections for the purpose of changing
the lease so as to confirm ownership rights upon him and to enable him use the plot for
residential purpose in the garb of putting up of school. 2003 AIR SCW 1046
12. Mr. A. Mariarputham, learned counsel appearing on behalf of the first respondent-
DG, submitted that by order dated 03rd July, 2006, the Commission in substance directed
due compliance of its earlier order dated 16th January, 2004 and incorporation of certain
terms in the fresh lease which are consistent with the earlier agreement
@page-SC2250
dated 1-12-1992 and also handing over the possession of the site/plot to the complainant-
second respondent. It is submitted that as order dated 16th January, 2004 has not been
challenged by the appellants, therefore, the said order has attained finality and, the order
now impugned in this appeal by the appellants on the plea raised cannot be assailed and
objected to.
13. Raj Kamal, the complainant-second respondent appearing in person has sought to
support the order of the Commission inter alia contending that this Court ordinarily
would not interfere in the well-reasoned and well-merited order of the Commission which
on the face of it cannot be held as perverse or illegal. In nutshell, he submits that after
prolonged legal battle with the mighty and strong appellants, he has succeeded in getting
relief; therefore, this Court shall not be obliged to exercise its power under Section 55 of
the MRTP Act to interfere with the findings of fact.
14. We have given our thoughtful and anxious consideration to the respective contentions
of the learned counsel for the parties. The submissions of Mr. Ravindra Narain, learned
counsel for the appellants at the first blush appears to be attractive, but in the facts and
circumstances of the present case, we are afraid to accept them.
15. It is not in dispute that DLF is a colonizer. It is further not in dispute that licences had
been granted to it for the construction of a colony. It also stands admitted that the schools,
hospitals, community centres and other community buildings were required to be
constructed in the colony in terms of the licences granted under the State Act.
16. The complainant-second respondent filed complaint which was entertained by the
Commission in purported exercise of its jurisdiction under Section 2(o)(i) and Section
36A of the MRTP Act. The said complaint was referred to the first respondent-DG for
investigation and on receipt of the PIR submitted by the first respondent-DG, notice was
issued to the appellants by the Commission on 27-03-1998. In response to the notice, the
appellants submitted their detailed reply.
17. The Statement of Objects and Reasons for the enactments of MRTP Act is designated
to ensure that the operation of the economic system does not result in the concentration of
economic power to the common detriment and to prohibit such monopolistic and
restrictive trade practices as are prejudicial to public interest.
18. Section 2(o) defines 'Restrictive Trade Practice' to mean 'a trade practice which has,
or may have the effect of preventing, distorting or restricting, competition in any manner
and in particular,
(i) XXX
(ii) Which tends to bring about manipulation of prices, or conditions of delivery or to
affect the flow of supplies in the market relating to goods or services in such manner as to
impose on the consumers unjustified costs or restrictions.'
The definition of Section 2(o) clearly goes to show that it is exhaustive and not an
inclusive one. The decision whether trade practice is restrictive or not has to be arrived at
by applying the rule of reason and not on the doctrine that any restriction as to area or
price will per se be a restrictive trade practice.
19. Part B of Chapter 5 of the MRTP Act deals with 'Unfair Trade Practices'. Section 36A
defines "unfair trade practice" to mean "a trade practice which, for the purpose of
promoting the sale, use or supply of any goods or for the provision of any services,
[adopts any unfair method or unfair or deceptive practice including any of the following
practices]" as enumerated therein.
20. It was the admitted case of the parties before the Commission that agreement to lease
land bearing site/plot No. 3136 admeasuring 0.20 acres for starting a Nursery School for
a consideration of Rs. 4 lakhs was entered into between the appellants and second
respondent on 01-12-1992. The appellants later on issued a letter dated 19-5-1994 making
allotment of 0.35 acres of alternate land bearing site/plot No. 3103 in place of plot No.
3136 to the complainant-respondent on payment of additional charges to the tune of Rs.
2,96,204 on account of increase in area. The order of the Commission reveals that some
instructions were issued by the Government of Haryana on 25-10-1994 and 13-2-1996
regarding transferring of community sites to third and fourth parties under the following
three heads :-
(i) Where the community sites are still in the ownership of the colonizer.
(ii) Sites where colonizers have created
@page-SC2251
third party rights before 7-8-1991.
(iii) Cases where the licences have created fourth party right on community sites.
21
. An addendum appears to have been issued by the State Government on 13-2-1996 to the
instructions dated 25-10-1994 specifying that the time schedule of three years for the
construction of community buildings shall also apply to all sites where third and fourth
party rights have been created before 7-8-1991 and the remaining conditions of the
instructions dated 25-10-1994 would continue to apply without any change therein. The
legality and validity of the directions/instructions contained in the two letters dated 25-
10-1994 and 13-2-1996 was the subject matter of the Civil Writ Petition No. 7245 of
1997 filed by the second appellant in the High Court of Punjab and Haryana. As noticed
hereinabove, the writ petition was finally dismissed by the High Court on 7-3-2001 which
order was challenged by the aggrieved parties in Civil Appeal Nos. 4908/2002 along with
4909-11/2002. This Court finally decided the said appeals vide decision dated 17th
February, 2003 titled DLF Qutab Enclave Complex Educational Charitable Trust v. State
of Haryana and Others (2003) 5 SCC 622. This Court while dealing with and construing
the various provisions of Haryana Development and Regulation of Urban Areas Act,
1975 and Haryana Development and Regulation of Urban Areas Rules, 1976, Transfer of
Property Act and Article 300A of the Constitution of India besides basic rules on
construction of statutes, held :- [see pp.634-635 paras 36, 37, 38 and 39] 2003 AIR
SCW 1046, Paras 33 to 36
"36. Right of transfer of land is indisputably incidental to the right of ownership. Such a
right can be curtailed or taken away only by reason of a statute. An embargo upon the
owner of the land to transfer the same in the opinion of this Court should not be readily
inferred. Section 3(3)(a)(iv) of the Act does not expressly impose any restriction. The
same is merely a part of an undertaking. Assuming that a prohibition to transfer the land
can be read therein by necessary implication, it is interesting to note that the consequence
of violation of such undertaking has not been specified. In other words, if a transfer is
made in violation of the undertaking, the statute does not provide that the same would be
illegal or the transferee would not derive any title by reason thereof.
37. The right of a transferee, however, would be subject to the building laws or regulatory
statute relating to user of the property. In terms of the said Act, in the event the
Government takes over the plots, it would be at liberty to transfer such land to any person
or institution including a local authority as it may deem fit. Purpose of such a clause,
therefore, is to ensure that schools, hospitals, community centres and other community
buildings are established at the places reserved therefor in the sanction plan but there
does not exist any embargo as regards the person or persons who would run and manage
the same.
38. A regulatory Act must be construed having regard to the purpose it seeks to achieve.
The State as a statutory authority cannot ask for something which is not contemplated
under the Act. A statute relating to regulation of user of land must not be construed to be
a limitation prohibiting transfer of land which does not affect its user.
39. The plan provides that schools, hospitals etc. would be located at particular sites.
When that purpose is satisfied, the court in the name of interpretation would not make a
further attempt to find out who did so."
22. The Commission, in the light of the above-noted judgment of this Court, disposed of
the complaint of the second-respondent on 21-8-1991 without going into the merits of the
case. Later on, on a review application filed by the complainant-second respondent, it
was submitted before the Commission on 4-7-2003 that the appellants were now willing
to hand over the possession of the site/plot to the complainant-second respondent subject
to execution of the fresh lease deed without modification and deviation of the standard
lease deed to be executed by all such lessors. The complainant-second respondent
suggested the above-stated modifications and their incorporation in the draft agreement in
line with clause 11(a)(b)(i) of the lease deed agreement dated 01-12-1992.
23. The Commission disposed of the review application of the complainant-second
respondent by order dated 16-01-2004, which reads as under :-
"The learned counsel for the respondent states that the respondent is willing to
@page-SC2252
execute a fresh lease deed in favour of the informant. The commercial terms as contained
in the earlier lease deed dated 01-12-1992 shall not be modified and altered and shall
remain the same in framing of the new lease deed which shall be executed between the
parties. The respondent will indicate the amount of lease rent which is payable by the
informant within one week. The informant shall pay the said lease rent within one week
thereafter. The informant as well as the respondent shall sign the modified lease deed and
the possession of the plot shall be handed over to the informant. The present review
application is disposed of in these terms and the order passed on 21st August, 2001 is
modified accordingly."
24. Thereafter, another order recorded by the Commission on 29-07-2005 reads as
under :-
"The learned counsel for the respondent states that they have already furnished a standard
lease draft to the applicant which he acknowledges to have received. The learned
advocate is directed to file the same with the Commission. The applicant is directed to
suggest the amendments, if any, he proposes on the draft lease furnished by the informant
to him within four weeks with a copy to the Commission. The respondents thereafter
would prepare a second draft after incorporating necessary changes that they feel would
be accommodated in the agreement. A copy of the 2nd draft shall also be made available
to the respondent and also to the Commission. Thereafter the case could be taken for
consideration. List on 18-10-2005."
25. The case of the complainant - second respondent before the Commission was that he
has furnished necessary, effective and valid suggestions which are to be incorporated in
the fresh lease because of delay in handing over the possession of the alternate site/plot to
him. It is the admitted case that the appellants have not challenged the order of the
Commission dated 16-01-2004 by which the parties were directed that the commercial
terms as contained in the earlier lease deed dated 01-12-1992 shall not be modified and
altered and shall remain the same in framing of the new lease deed which shall be
executed between the parties.
26. Section 13A empowers the Commission to cause investigation to find out whether or
not orders made by it under this Act have been complied with or any obligation imposed
upon any person by or under any order made by the Commission under this Act,
authorizes the Director General or any officer of the Commission to make investigation
into the matter and the Director General or the officer so authorized, may, for the purpose
of making such investigation, exercise all or any of the powers conferred on the Director
General by Section 11. In terms of sub-section (2), the Director General, or, as the case
may be, the officer so authorized, shall submit to the Commission a report of the
investigation to enable the Commission to take such action in the matter as it may think
fit.
27. The Commission under Section 13B is also empowered to exercise the powers,
jurisdiction and authority to punish the person in respect of contempt of itself.
28. In the backdrop of the facts of the present case, once the appellants have accepted the
earlier order of the Commission dated 16-01-2004 which has attained finality, the
appellants are left with no other option but to execute a fresh lease deed with the
complainant - second respondent on modified terms suggested by him. The order of the
Commission impugned in this appeal does not suffer from any manifest error or
perversity or invalidity.
29. In the result, for the above stated reasons, we find no merit in this appeal and it is,
accordingly, dismissed. In the facts and circumstances of the case, we leave the parties to
bear their own costs.
30. Time granted by the MRTP Commission, however, shall be extended by four weeks
as prayed.
Appeal dismissed.
AIR 2008 SUPREME COURT 2252 "National Insurance Co. Ltd. v. Kaushalya Devi"
Civil Appeal No.3542 with 3552 of 2008 (arising out of SLP (C) No. 10694 with 9910 of
2006), D/- 13 -5 -2008.
National Insurance Co. Ltd. v. Kaushalya Devi and Ors.
Motor Vehicles Act (59 of 1988), S.149 - MOTOR VEHICLES - INSURANCE -
Liability of insurer - Track accident - Deceased travelling in truck - Not
@page-SC2253
owner of goods carried in track - Driver of track also not holding valid licence to drive
goods carriage - Liability to pay compensation is of owner and not insurer. (Paras 12, 13)
2008 AIR SCW 682 : AIR 2008 SC 1073 (Ref.) 13
2008 AIR SCW 888 : AIR 2008 SC 1408 : 2008 (2) ALJ 736 (Ref.)11, 13
2007 AIR SCW 2362 : AIR 2007 SC 1609 : 2007 (3) AIR Kar R 437 : 2007 (3) ALJ 596
(Ref.) 11
2007 AIR SCW 3734 : AIR 2007 SC 1971 (Ref.) 11, 13
2004 AIR SCW 663 : AIR 2004 SC 1531 (Ref.) 10, 11
S.L. Gupta, Col. S.S. Yadav, Goodwill Indeevar and Dinesh Kumar Garg, for the
Appearing Parties.
* F. A. O. No. 223 of 2002, D/-05-12-2005 (H.P.)
Judgement
2. Kishan Lal (deceased) was travelling in a truck bearing registration No. HP-11-1448
on 16-3-2000. He was aged about 27 years. He was unmarried. The said truck met with
an accident.
First respondent being the mother of the deceased filed an application for payment of
compensation under Section 166 of the Motor Vehicles Act, 1988 (The Act). Appellant
was served with a notice. One of the objections taken by it was that the driver of the truck
did not possess any valid or effective driving licence and that the deceased was travelling
as an unauthorized passenger on the truck which was a goods carriage.
3. The Tribunal awarded a sum of Rs. 1,18,000/- by way of compensation. An appeal was
preferred thereagainst before the High Court.
By reason of the impugned judgment, whereas the contention of the appellant-insurance
company was upheld, having regard to the fact that the amount awarded in favour of the
first respondent had already been deposited, it was directed to be released in favour of the
claimant with liberty to the insurance company to recover the said amount along with
interest from the owner by filing an appropriate application for execution before the
Tribunal without being required to file a separate suit.
4. Both the insurance company as also the owner of the truck are, thus, before us.
5. Shri S.L. Gupta, learned counsel appearing on behalf of the insurance company, would
submit that as the deceased was travelling as a gratuitous passenger and as the driver of
the vehicle was not possessing an effective driving licence, the High Court should not
have passed the impugned order.
6. Mr. Garg, learned counsel appearing on behalf of the owner of the vehicle, on the other
hand, would contend that the deceased was a vegetable vendor and he had been travelling
in the truck for collecting the empty boxes and, thus, he was not a gratuitous passenger.
In any event, it was urged, as the insurance company has already deposited the amount of
compensation, the right to recover the amount from the owner of the vehicle need not
have been granted.
7. The Tribunal, having regard to the rival contentions of the parties, framed the
following issues :
"1. Whether deceased Shri Krishan Lal had died due to the rash and negligent driving of
'Shri Shyam Lal, driver of truck No. HP-11-1448, as alleged? ...OPP.
2. If issue No. 1 supra is proved, to what amount of compensation the petitioner is
entitled to and from which of the respondents? ......OPP
3. Whether the truck driver did not have valid driving licence on the date of accident, as
alleged, if so, its effect?......OPR.3.
4. Whether the documents i.e. route permit, R.C. and fitness certificate of the truck, in
question, were not valid on the date of accident as alleged? ...OPR.3
5. Relief."
8. It was opined by the Tribunal that the driver of the truck was driving the vehicle rashly
and negligently. It was furthermore held that the truck in question was insured with the
appellant-insurance company, but it had not been proved that the driver was not having
any valid driving licence.
With regard to the contention that the deceased was a gratuitous passenger in a goods
vehicle, it was held :
"The evidence, on record, which has been led by the petitioner would go to show that the
deceased was travelling in the truck, in
@page-SC2254
question, for bringing empty vegetable boxes. Further, even if it is taken that the deceased
was travelling in the truck as unauthorized person, even then, under the existing law, the
insurance company cannot avoid the liability in question. Therefore, the plea raised by
the learned Advocate for the insurance company does not have any force."
9. The High Court, however, held that the driving licence of the Driver Shyam Lal was
not valid, stating :
"Since I am of the opinion that the endorsement permitting Shyam Lal to drive heavy
goods vehicle was ante-dated and was not existing on the date of accident it is clear that
the owner could not have handed over the vehicle to a person who held a valid driving
lience. On 16-3-2000 Shyam Lal only held a licence to drive a light transport vehicle and
the owner could not have checked or verified the licence for driving a heavy goods
vehicle. In fact in this case the owner has not even stepped into the witness box to say
anything in this regard. Therefore, I hold that the insurance company was wrongly held
liable to pay compensation."
As regards to the question as to whether the deceased was an unauthorized passenger, it
accepted the plea of the insurance company.
10. The provisions relating to the necessity of having a licence to drive a vehicle is
contained in Sections 3, 4 and 10 of the Act. As various aspects of the said provisions,
vis-a-vis, the liability of the insurance company to reimburse the owner in respect of a
claim of a third party as provided in Section 149 thereof have been dealt with in several
decisions, it is not necessary for us to reiterate the same once over again. Suffice it to
notice some of the precedents operating in the field.
In National Insurance Co. Ltd. v. Swaran Singh and Ors. [(2004) 3 SCC 297], this Court
held : 2004 AIR SCW 663, Paras 83, 84, 85 and 86
"88. Section 10 of the Act provides for forms and contents of licences to drive. The
licence has to be granted in the prescribed form. Thus, a licence to drive a light motor
vehicle would entitle the holder there to drive the vehicle falling within that class or
description.
89. Section 3 of the Act casts an obligation on a driver to hold an effective driving licence
for the type of vehicle which he intends to drive. Section 10 of the Act enables the
Central Government to prescribe forms of driving licences for various categories of
vehicles mentioned in sub-section (2) of the said section."
It was furthermore, observed :
"90. We have construed and determined the scope of sub-clause (11) of sub-section (2) of
Section 149 of the Act. Minor breaches of licence conditions, such as want of medical
fitness certificate, requirement about age of the driver and the like not found to have been
the direct cause of the accident, would be treated as minor breaches of inconsequential
deviation in the matter of use of vehicles. Such minor and inconsequential deviations
with regard to licensing conditions would not constitute sufficient ground to deny the
benefit of coverage of insurance to the third parties.
91. On all pleas of breach of licensing conditions taken by the insurer, it would be open to
the Tribunal to adjudicate the claim and decide inter se liability of insurer and insured;
although where such adjudication is likely to entail undue delay in decision of the claim
of the victim, the Tribunal in its discretion may relegate the insurer to seek its remedy of
reimbursement from the insured in the civil court."
The decision in Swaran Singh, however, was held to be not applicable in relation to the
owner or a passenger of a vehicle which is insured.
11
. In National Insurance Co. Ltd. v. Laxmi Narain Dhut [2007 (4) SCALE 361, this Court
referring to Swaran Singh (supra) and discussing the law on the subject, held : 2007
AIR SCW 2279
2004 AIR SCW 663
"In view of the above analysis the following situations emerge :

1. The decision in Swaran Singh's case (supra) has no application to cases other than third
party risks.
2. Where originally the licence was a fake one, renewal cannot cure the inherent fatality.
3. In case of third party risks the insurer has to indemnify the amount and if so advised, to
recover the same from the insured.
4. The concept of purposive interpretation has no application to cases relatable to Section
149 of the Act.
The High Courts/Commissions shall now
@page-SC2255
consider the matter afresh in the light of the position in law as delineated above.
{See also Oriental Insurance Company Ltd. v. Meena Variyal and Ors. [2007 (5) SCALE
269]; Oriental Insurance Company Ltd. v. Brij Mohan and Ors. [2007 (7) SCALE 753];
and Oriental Insurance Co. Ltd. v. Prithvi Raj [2008 (1) SCALE 727]}. 2007 AIR
SCW 2362
2007 AIR SCW 3734
2008 AIR SCW 888
12. In view of the findings arrived at by the High Court, it must be held that the owner
alone was liable to pay compensation to the first respondent herein for causing death of
her son by rash and negligent driving on the part of the driver of the truck. The High
Court's judgment must be sustained on this ground.
13. The deceased was not the owner of any goods which were being carried in the truck.
Admitted position is that he had been travelling in the truck for the purpose of collecting
the empty boxes. He was a vegetable, dealer. He was not travelling in the truck as owner
of the goods viz. the vegetables. He was travelling in the truck for a purpose other than
the one for which he was entitled to travel in a public carriage goods vehicle.
This aspect of the matter is squarely covered by the decision of this Court in Brij Mohan
(supra) wherein the Bench cited with approval the decision in New India Assurance Co.
Ltd. v. Asha Rani and Ors. [(2003) 2 SCC 223] wherein it was stated : 2007 AIR
SCW 3734
2002 AIR SCW 5259
"26. In view of the changes in the relevant provisions in the 1988 Act vis-a-vis the 1939
Act, we are of the opinion that the meaning of the words "any person" must also be
attributed having regard to the context in which they have been used i.e. "a third party".
Keeping in view the provisions of the 1988 Act, we are of the opinion that as the
provisions thereof do not enjoin any statutory liability on the owner of a vehicle to get his
vehicle insured for any passenger travelling in a goods vehicle, the insurers would not be
liable therefor."
{See also Prem Kumar and Ors. v. Prahlad Dev and Ors. [2008 (1) SCALE 531] and
Oriental Insurance Co. Ltd. v. Prithvi Raj [2008 (1) SCALE 727]}. 2008 AIR SCW 682
2008 AIR SCW 888
14. For the reasons aforementioned, Civil Appeal arising out of SLP (C) No. 10694 is
allowed and Civil Appeal arising out of SLP (C) No. 9910 of 2006 is dismissed. If the
amount deposited by the insurance company has since been withdrawn by the first
respondent, it would be open to the insurance company to recover the same in the manner
specified by the High Court. But if the same has not been withdrawn the deposited
amount may be refunded to the insurance company and the proceedings for realization of
the amount may be initiated against the owner of the vehicle. In the facts and
circumstances of the case, however; there shall be no order as to costs.
Order accordingly.
AIR 2008 SUPREME COURT 2255 "DCM Financial Services Ltd. v. J. N. Sareen"
(From: Delhi)
Coram : 2 S. B. SINHA AND Dr. MUKUNDAKAM SHARMA, JJ.
Criminal Appeal No.875 of 2008 (arising out of SLP (Cri) No. 4801 of 2007), D/- 13 -5
-2008.
DCM Financial Services Ltd. v. J. N. Sareen and Anr.
(A) Negotiable Instruments Act (26 of 1881), S.141 - DISHONOUR OF CHEQUE -
COMPLAINT - COMPANY - Dishonour of cheque - Complaint against Company -
Constructive liability - Pact that accused played some role at one point of time - May not
by itself sufficient to attract constructive liability u/S.141.
S. 141 provides for a constructive liability. A legal fiction has been created thereby. The
statute being a penal one, should receive strict construction. It requires strict compliance
of the provision, specific averments in the complaint petition so as to satisfy the
requirements of S. 141 are imperative. Mere fact that at one point of time some role has
been played by the accused may not by itself be sufficient to attract the constructive
liability under S. 141. 2007 (9) JT (SC) 449, Rel. on. (Para 18)
(B) Negotiable Instruments Act (26 of 1881), S.138 - DISHONOUR OF CHEQUE -
COMPLAINT - COMPANY - APPEAL - Post-dated cheque - Dishonour of - Complaint
against Company and its Director - Said Director already resigned with knowledge of
complainant - Could not be person in-charge of Company two years later when cheque
was dishonoured - Plea that he was person in-charge at relevant time - Not
@page-SC2256
raised before Trial Court and High Court - Cannot be permitted to be raised for first time
in appeal before Supreme Court.
In the instant case the cheque in question was admittedly a post-dated one. It was signed
on 3rd April, 1995. It was presented only sometime in June, 1998. In the meantime
accused had resigned from the directorship of the Company. The complaint petition was
filed on or about 20th August, 1998. Intimation about his resignation was given to the
complainant in writing by the respondent accused on several occasions. Appellant was,
therefore, aware thereof. Despite having the knowledge, the respondent was impleaded
one of the accused in the complaint as a director Incharge of the affairs of the Company
on the date of commission of the offence, which he was not. If he was proceeded against
as a signatory to the cheques, it should have been disclosed before the Trial Judge as also
the High Court so as to enable him to apply his mind in that behalf. It was not done.
Although, therefore, it may be that as an authorized signatory he will be deemed to be
person incharge, in the facts and circumstances of the case, the said contention could not
be permitted to be raised for the first time before Supreme Court. A person who had
resigned with the knowledge of the complaint in 1996 could not be a person incharge of
the Company in 1998 when the cheque was dishonoured. He had no say in the matter of
seeing that the cheque is honoured. He could not ask the Company to pay the amount. He
as a Director or otherwise could not have been made responsible for payment of the
cheque on behalf of the Company or otherwise. (Paras 20, 23)
(C) Negotiable Instruments Act (26 of 1881), S.141 - DISHONOUR OF CHEQUE -

Post-dated cheque - Dishonour of - Harsh provision of constructive liability - Available
only when appropriate case in that behalf is made out.
When post dated cheques are issued and the same are accepted, although it may be
presumed that the money will be made available in the bank when the same is presented
for encashment, but for that purpose, the harsh provision of constructive liability may not
be available except when an appropriate case in that behalf is made out. (Para 22)
Section 140 cannot be said to have any application whatsoever. Reason to believe on the
part of a drawer that me cheque would not be dishonoured cannot be a defence. But, then
one must issue the cheque with full knowledge as to when the same would be presented.
In the instant case the complainant has taken undue advantage of the post-dated cheque
given on behalf of the Company. The statute does not envisage misuse of a privilege
conferred upon a party to the contract. (Para 23)
2007 AIR SCW 656 : AIR 2007 SC 912 : 2007 Cri LJ 1419 : 2007 CLC 163 (Ref.)
10
2007 AIR SCW 1880 : AIR 2007 SC 1454 : 2007 CLC 682 : 2007 (3) AIR Kar R 247
(Ref.) 19
2007 AIR SCW 2460 : AIR 2007 SC 1634 : 2007 Cri LJ 2436 : 2007 CLC 978 : 2007 (3)
AIR Kar R 403 20
20
2007 AIR SCW 2591 : AIR 2007 SC 1682 : 2007 CLC 860 : 2007 Cri LJ 2448 : 2007 (3)
AIR Jhar R 145 (Ref.)16, 21
(2007) 9 JT (SC) 449 (Rel. on) 18
2005 AIR SCW 4740 : AIR 2005 SC 3512 : 2005 CLC 1382 : 2005 Cri LJ 4140 : 2005
AIR - Jhar HCR 2472 (Ref.) 15
2004 AIR SCW 5174 : AIR 2004 SC 4674 : 2004 Cri LJ 4874 : 2004 AIR Jhar HCR 2834
(Ref.) 23
P.S. Patwalia, Sr. Advocate, Rajesh Srivastava, Ms. Suresh Kumari and Aman Prit Singh
Rahi, for Appellant; J.N. Sareen, Vidya Dhar Gaur, Ashok Bhan, Dr. Cham Wall Khanna
and D.S. Mahra, for Respondents.
Judgement
2. What would be the effect of a post dated cheque vis-a-vis prosecution in terms of
Section 141 of the Negotiable Instruments Act, 1881 (in short the Act) is the question
involved in this appeal which arises out of a judgment and order dated 31st January, 2007
passed by the High Court of Delhi at New Delhi in Criminal Revision No. 777 of 2003
dismissing the Criminal Revision Application preferred from an order dated 5th July,
2003 passed by the learned Additional Sessions Judge, New Delhi, discharging the 1st
respondent No. 1 herein.
3. The basic fact of the matter is not in
@page-SC2257
dispute.
First respondent herein was a Director of a Company known as M/s. International Agro
Allied Products Ltd. (the Company). It had purchased certain agricultural equipments on
hire purchase/lease from on 3rd April, 1995. As a part of the said transaction some post
dated cheques were issued in favour of the appellant herein towards the payment of
monthly hire/rental.
First respondent admittedly resigned from the Directorship of the Company on or about
25th May, 1996. It was accepted. One of the said post dated cheques which was issued in
April, 1995 was dated 28th January, 1998 amounting to Rupees 2,01,298/-, when
presented to the bank by the appellant for encashment, was dishonoured. Pursuant thereto
a notice for payment was issued. Amount having not been paid despite service of notice,
a complaint petition was filed under Section 138 of the Act. It was inter alia averred
therein :-
"8. That on assurance of the accused persons cheque No.0644739 dated 28th January,
1998 for a sum of Rs.2,01,298/- drawn on Bank of Baroda, Lucknow and delivered/
issued by the accused towards payment of hire/lease rentals, were presented for
encashment again by complainant company through their bankers and the same was
returned unpaid by the bankers of the accused vide memo dated 22.6.1998 with the
remarks "Insufficient Funds" to the banker's of complainant company. The complainant
received the information only on 21.6.1998. (sic) (Copy of memo of cheque returned and
above referred cheque are annexed herewith.).
9. That the complainant company sent a legal notice to the accused persons through its
advocate on 6th July, 1998, demanding the payment against these cheques within 15 days
from the receipt of the notice. This notice was sent to the accused persons both through
registered AD and UPC within 15 days from the date of receiving the information
regarding dishonouring of the cheques.
10. That the accused persons failed to make the payment of the above said amount
despite service of legal notice on him.
13. That the accused No. 1 is a company/ firm and accused Nos. 2 to 10 were in charge
and were responsible to the accused No. 1, at the time when offence was committed.
Hence, the accused Nos. 2 to 10 in addition to the accused No. 1 are liable to be
prosecuted and punished in accordance with law by this Hon'ble Court, as provided by
Section 141 of the N.I. Act, 1881. Further the offence has been committed by the accused
No. 1 with the consent and connivance of the accused Nos. 2 to 10."
4. No allegation was made in the complaint petition that the 1st respondent was a
signatory to the cheque or he was authorized therefor.
5. An application was filed by the 1st respondent for his discharge. By reason of the order
dated 5th July, 2003 the same was allowed by the learned Additional Sessions Judge,
New Delhi, stating :-
"....It is a well-known fact that the Constitution of the Board of Directors of a company
keeps on changing and a fixed ratio of the directors of the company keep on retiring by
rotation every year and new directors are inducted. The complainant cannot make
directors of the year 1995 or 1996 as the accused person for a cheque dishonoured in the
year 1998. He can make accused only those directors who were the directors of the
company in the year 1998. The Companies Act has made specific provisions for all
companies registered with the Registrar of Companies to file a return about the directors
in the company. These provisions have been made for the benefit to the public so that the
people can get information from Registrar of Companies about the change in the
constitution of directors. Change of the constitution of the Board of Directors is not a
private affair of the company. A complainant cannot take the plea that he had made those
directors as accused which were known to him. If this plea of complainant is allowed
then he would be at liberty to make all the person who at any point of time, had been the
director of company as accused.
5. I consider in view of the documents placed by the applicant on record showing that
applicant had resigned way back in 1996 and his resignation was informed to the
Registrar of Companies in October 1996 by filing the statutory Form 32, the plea of
complainant that applicant was a director cannot be considered without any affidavit of
the Authorized Representative of the complainant that he has verified from the Registrar
of Companies and Form No.32 filed by the accused was not genuine. It is not a trivial
matter that a person has to face trial
@page-SC2258
as an accused in the Court. No person can be asked to face trial in the Court without there
being a basis of proceedings against him merely at the wishes of a complainant. The
Court must be satisfied that the persons who has been called as an accused against him
there was sufficient grounds to proceed. In this case I consider that complainant has taken
vague plea in reply to the application of accused regarding genuineness and non-
admission of Form No.32 or about his being responsible for the function of the company.
In view of specific documents by the accused applicant the vague pleas of the company
do not stand anywhere."
The Criminal Revision Application filed thereagainst, as indicated hereinbefore, has been
dismissed.
6. Mr. P.S. Patwalia, learned Senior Counsel appearing on behalf of the appellant, would
submit that although before the High Court no material was placed to show that the 1st
respondent was a signatory to the cheque in question, in view of the fact that the entire
records were available to the High Court, it should have been held that the First
Respondent was primarily liable for payment of the amount thereunder.
7. Mr. J.N. Sareen, learned counsel appearing on behalf of the 1st respondent, supported
8. In support of the said complaint petition one Peter N. Ballam was examined on behalf
of the appellant. In relation to the 1st respondent he did not make any statement as is
required in terms of Section 141 of the Act. He merely stated :-
"8. I state that the above named accused no. 1 is a Company and accused No. 2 to 8 are
Directors/key executives of the accused No. 1 Company and are responsible for the
affairs of accused No. 1 is/are guilty of offence u/S. 138 of Negotiable Instruments Act
and 420 of IPC and is/are liable to be prosecuted and punished in accordance with law."
He, thus, even was not aware of the post held by the First respondent herein at the
relevant time.
The learned Sessions Judge in his order dated 5th July, 2003 has noticed that no
contention had been raised that the 1st respondent in his capacity as an authorized
signatory signed the cheque. Such a contention appears to have been raised before us for
the first time. It has not been disputed that the 1st respondent resigned as a Director of the
Company on or about 25th May, 1996.
9. The question which arises for consideration is as to whether an authorized signatory, in
a situation of this nature, would be liable for prosecution.
10. The underlying purpose for which the Parliament enacted Section 138 of the Act is
not in doubt or dispute. What, however, is necessary to be borne in mind is the distinction
between a civil proceeding and a criminal proceeding, What is also necessary to be borne
in mind is the standard of proof in a civil suit and a criminal case.
11. Averments made in the complaint petition supported by the statements of the
complainant form the basis for taking cognizance of an offence by the Magistrate.
Application of mind on the averments made in the complaint petition vis-a-vis the order
which is required to be passed for summoning the witnesses is imperative.
12. The complaint petition did not disclose as to who had signed the cheque on behalf of
the Company. Involvement of the 1st respondent in commission of the offence as
signatory was neither averred nor stated by the authorized representative of the
complainant. Even the complaint petition proceeded on the basis that the averments
contained in the 8 complaint petition were sufficient to enable the learned Magistrate to
summon the accused. Even before the High Court such a contention has not been raised,
as noticed hereinbefore. We may notice the concession made by Mr. Patwalia in this
behalf that such a contention has been raised before us for the first time. This itself
indicates the manner in which the complaint proceeded. Fairness on the part of the
complainant is also expected in such a matter. It is now not in dispute that the 1st
respondent had intimated the complainant as regards his resignation from the Company.
13. Section 138 of the Act reads as under :-
"138. Dishonour of cheque for insufficiency, etc., of funds in the account. - Where any
cheque drawn by a person on an account maintained by him with a banker for payment of
any amount of money to another person from out of that account for the discharge, in
whole or in part, of any debt or other liability, is returned by the bank unpaid,
@page-SC2259
either because of the amount of money standing to the credit of that account is
insufficient to honour the cheque or that it exceeds the amount arranged to be paid from
that account by an agreement made with that bank, such person shall be deemed to have
committed an offence and shall without prejudice to any other provisions of this Act, be
punished with imprisonment for a term which may extend to two years, or with fine
which may extend to twice the amount of the cheque, or with both..."
14. For constituting an offence in terms of the said provision, the following ingredients
are to be satisfied :-
a) A cheque must be drawn;
b) It must be presented and returned unpaid inter alia with the remarks "insufficient
funds";
c) A notice for payment should be served on the accused;
d) The accused has failed to make the payment of the said amount to the payee within 15
days from the date of receipt of notice.
15
. First respondent indisputably was a Director of the Company. The liability attached to
him was not a personal liability. It was a constructive liability. The cheque was drawn on
behalf of the Company. He might have been liable as a person incharge of the company
within the meaning of Section 141 of the Act as has been held by this Court in S.M.S.
Pharmaceuticals Ltd. v. Neeta Bhalla and another : (2005) 8 SCC 89 whereupon strong
reliance has been placed by Mr. Patwalia. One of the questions which indisputably arose
for consideration therein was as to whether a signatory of the cheque would come within
the purview of Section 141 of the Act, as would appear from paragraph 1 thereof, which
reads :- 2005 AIR SCW 4740
"This matter arises from a reference made by a two-Judge Bench of this Court for
determination of the following questions by a larger Bench:
"(a) Whether for purposes of Section 141 of the Negotiable Instruments Act, 1881, it is
sufficient if the substance of the allegation read as a whole fulfil the requirements of the
said section and it is not necessary to specifically state in the complaint that the person
accused was in charge of, or responsible for, the conduct of the business of the company.
(b) Whether a director of a company would be deemed to be in charge of, and responsible
to, the company for conduct of the business of the company and, therefore, deemed to be
guilty of the offence unless he proves to the contrary.
(c) Even if it is held that specific averments are necessary, whether in the absence of such
averments the signatory of the cheque and or the managing directors or joint managing
director who admittedly would be in charge of the company and responsible to the
company for conduct of its business could be proceeded against."
It was opined :-
"9. The position of a managing director or a joint managing director in a company may be
different. These persons, as the designation of their office suggests, are in charge of a
company and are responsible for the conduct of the business of the company. In order to
escape liability such persons may have to bring their case within the proviso to Section
141(1), that is, they will have to prove that when the offence was committed they had no
knowledge of the offence or that they exercised all due diligence to prevent the
commission of the offence."
It was concluded :-
"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
@page-SC2260
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."
16
. We may also notice a decision of this Court in N. Rangachari v. Bharat Sanchar Nigam
Ltd. : (2007) 5 SCC 108 wherein it was held :- 2007 AIR SCW 2591
"21. A person normally having business or commercial dealings with a company, would
satisfy himself about its creditworthiness and reliability by looking at its promoters and
Board of Directors and the nature and extent of its business and its memorandum or
articles of association. Other than that, he may not be aware of the arrangements within
the company in regard to its management, daily routine, etc. Therefore, when a cheque
issued to him by the company is dishonoured, he is expected only to be aware generally
of who are in charge of the affairs of the company. It is not reasonable to expect him to
know whether the person who signed the cheque was instructed to do so or whether he
has been deprived of his authority to do so when he actually signed the cheque. Those are
matters peculiarly within the knowledge of the company and those in charge of it. So, all
that a payee of a cheque that is dishonoured can be expected to allege is that the persons
named in the complaint are in charge of its affairs. The Directors are prima facie in that
position."
It was further held :-
27. We think that, in the circumstances, the High Court has rightly come to the
conclusion that it is not a fit case for exercise of jurisdiction under Section 482 of the
Code of Criminal Procedure for quashing the complaint. In fact, an advertence to
Sections 138 and 141 of the Negotiable Instruments Act shows that on the other elements
of an offence under Section 138 being satisfied, the burden is on the Board of Directors
or the officers in charge of the affairs of the company to show that they are not liable to
be convicted. Any restriction on their power or existence of any special circumstance that
makes them not liable is something that is peculiarly within their knowledge and it is for
them to establish at the trial such a restriction or to show that at the relevant time they
were not in charge of the affairs of the Company. Reading the complaint as a whole, we
are satisfied that it is a case where the contentions sought to be raised by the appellant
can only be dealt with after the conclusion (sic commencement) of the trial."
17. We are, however, concerned with a different situation hereat.
18. Section 141 of the Act provides for a constructive liability. A legal fiction has been
created thereby. The statute being a penal one, should receive strict construction. It
requires strict compliance of the provision. Specific averments in the complaint petition
so as to satisfy the requirements of Section 141 of the Act are imperative. Mere fact that
at one point of time some role has been played by the accused may not by itself be
sufficient to attract the constructive liability under Section 141 of the Act. (See K.
Srikanth Singh vs. M/s. North East Securities Ltd. and another : JT 2007 (9) SC 449).
19
. We may also notice that this Court in N.K. Wahi v. Shekhar Singh and others : (2007) 9
SCC 481, has observed :- 2007 AIR SCW 1880
"8. To launch a prosecution, therefore, against the alleged Directors there must be a
specific allegation in the complaint as to the part played by them in the transaction.
@page-SC2261
There should be clear and unambiguous allegation as to how the Directors are incharge
and responsible for the conduct of the business of the company. The description should be
clear. It is true that precise words from the provisions of the Act need not be reproduced
and the Court can always come to a conclusion in facts of each case. But still, in the
absence of any averment or specific evidence the net result would be that complaint
would not be entertainable."
[Emphasis supplied]
20
. The cheque in question was admittedly a post dated one. It was signed on 3rd April,
1995. It was presented only sometimes in June, 1998. In the meantime he had resigned
from the directorship of the Company. The complaint petition was filed on or about 20th
August, 1998. Intimation about his resignation was given to the complainant in writing
by the 1st respondent on several occasions. Appellant was, therefore, aware thereof.
Despite having the knowledge, the 1st respondent was impleaded one of the accused in
the complaint as a Director Incharge of the affairs of the Company on the date of
commission of the offence, which he was not. If he was proceeded against as a signatory
to the cheques, it should have been disclosed before the learned Judge as also the High
Court so as to enable him to apply his mind in that behalf. It was not done. Although,
therefore, it may be that as an authorized signatory he will be deemed to be person
incharge, in the facts and circumstances of the case, we are of the opinion that the said
contention should not be permitted to be raised for the first time before us. A person who
had resigned with the knowledge of the complainant in 1996 could not be a person
incharge of the Company in 1998 when the cheque was dishonoured. He had no say in
the matter of seeing that the cheque is honoured. He could not ask the Company to pay
the amount. He as a Director or otherwise could not have been made responsible for
payment of the cheque on behalf of the Company or otherwise. (See also Shiv Kumar
Poddar v. State (NCT of Delhi) : (2007) 3 SCC 693 : Everest Advertising Pvt. Ltd. v.
State (NCT of Delhi) : (2007) 5 SCC 54 and Raghu Lakshminarayanan v. Fine Tubes :
(2007) 5 SCC 103. 2007 AIR SCW 656
2007 AIR SCW 2510
2007 AIR SCW 2460
21. Mr. Patwalia, however, submitted that a situation may arise where change in the
management is effected only to avoid such constructive liability.
Firstly we are not concerned with such a hypothetical case. Secondly, as noticed by this
Court in Rangachari's case (supra) that a person normally having business or commercial
dealings with a company, would satisfy himself about its creditworthiness and reliability
by looking at its promoters and Board of Directors and the nature and extent of its
business and its memorandum or articles of association. 2007 AIR SCW 2591
22. When post dated cheques are issued and the same are accepted, although it may be
presumed that the money will be made available in the bank when the same is presented
for encashment, but for that purpose, the harsh provision of constructive liability may not
be available except when an appropriate case in that behalf is made out.
23
. Section 140 of the Act cannot be said to have any application whatsoever. Reason to
believe on the part of a drawer that the cheque would not be dishonoured cannot be a
defence. But, then one must issue the cheque with full knowledge as to when the same
would be presented. It appears to be a case where the appellant has taken undue
advantage of the post dated cheques given on behalf of the company. The statute does not
envisage misuse of a privilege conferred upon a party to the contract. Submission of Mr.
Patwalia made in view of the decision of this Court in Adalat Prasad v. Rooplal Jindal
and Others [(2004) 7 SCC 338] is misplaced. Had such a contention been raised even in
terms of Adalat Prasad (supra), the respondents could have filed an application for
quashing in terms of Section 482 of the Code of Criminal Procedure at that stage. Again
such a contention had not been raised before the High Court. No such ground appears to
have been taken even in the Special Leave Petition. While examining the issue, we have
considered the case from a broader angle. Having found that the prosecution of the
respondents being mala fide despite the fact that on technical grounds it may be lawful to
set aside the order of the High Court, it, in our opinion, should not be done. Jurisdiction
of this Court in terms of Article 136 of the Constitution of India need not be exercised
only because it would be lawful to do so. Various factors including the conduct of the
appellant will be relevant therefor. 2004 AIR SCW 5174
@page-SC2262
Having regard to the facts and circumstances of this case, it is not a fit case where we
should allow the appellants to raise additional contentions which have not been raised
before the courts below.
24. For the reasons abovementioned we are of the opinion that no case has been made out
for interference with the impugned judgment.
25. The appeal fails and is dismissed.
Appeal dismissed.
AIR 2008 SUPREME COURT 2262 "Mausami Moitra Ganguli v. Jayanti Ganguli"
(From : Allahabad)*
Coram : 2 C. K. THAKKER AND D. K. JAIN, JJ.
Civil Appeal No. 3500 of 2008 (arising out of S.L.P. (C) No. 11324 of 2007), D/- 12 -5
-2008.
Mausami Moitra Ganguli v. Jayanti Ganguli.
(A) Hindu Minority and Guardianship Act (32 of 1956), S.13 - Guardians and Wards Act
(8 of 1890), S.17 - MINORITY AND GUARDIANSHIP - GUARDIANS AND WARDS
- CUSTODY OF CHILD - Custody of child - Welfare of child - Is paramount
consideration - No law can ignore, eschew or obliterate such vital factor - Better financial
condition or love for child of either of parties - Is relevant - But not sole determining
factor for deciding custody. (Para 14)
(B) Hindu Minority and Guardianship Act (32 of 1956), S.13 - Guardians and Wards Act
(8 of 1890), S.17 - MINORITY AND GUARDIANSHIP - GUARDIANS AND WARDS
- CUSTODY OF CHILD - Custody of male child - Mother leaving matrimonial home
when child was less than 3 years old - Child thereafter living with his father - Had been
studying in good school - Have a group of friends there - Father having good financial
resources - Mother staying all alone at another place - Child during interview by Court
opting to stay with father - Showing his disinclination to leave his birth place -
Dislocation of child from place where he has grown-up would not only impede his
schooling, but also cause emotional strain and depression on him - Mother, applicant
refused custody of child. (Para 17)
55 AIR 1973 SC 840 (Rel. on) 15
A.K. Sengupta, Suraj Prakash and Dr. Kailash Chand, for Appellant; K.K. Mohan, for
Respondent.
* F. A. No. 755 of 2005, D/- 28-2-2007 (All).
Judgement
D. K. JAIN, J. :- Leave granted.
2. Whether the father or the mother should have the custody of an almost ten year old
male child is the short question which falls for consideration in this appeal.
3. The appellant-mother and respondent-father got married on 18th April, 1996. It was a
love marriage against the wishes of the parents. On 28th May, 1998, a boy, namely,
Master Satyajeet was born from the wedlock. However, within a short time, the
relationship between the spouses came under strain. The appellant, who was employed as
a teacher, felt that the respondent had misrepresented to her about his occupational status;
he did not have any regular income to support the family; he was addicted to alcohol and
smoking and also had contacts with anti-social elements. The appellant, it is claimed, had
to support the respondent and his family with the meagre income she earned from her
school job and private tuitions. It was alleged that the respondent would force her to keep
all her savings in a joint bank account, from which he used to withdraw money. She was
subjected to physical violence, due to which on 16th August, 2001, she was forced to
leave her matrimonial home at Allahabad, leaving the infant with the father.
4. On reaching Calcutta, where her parents were living, she filed a suit for divorce against
respondent, which was decreed ex-parte on 12th September, 2002. Since no appeal was
preferred by the respondent against the said decree, it attained finality.
5. On 5th April, 2003, the appellant moved a petition under Sections 10 and 25 of the
Guardians and Wards Act, 1890 read with the provisions of the Hindu Minority and
Guardianship Act, 1956 before the Family Court, Allahabad seeking a declaration in her
favour to be the lawful guardian of her minor son, Satyajeet and a direction to the
respondent to hand over the custody of the child to her.
6. The application was hotly contested by the respondent. Resisting her claim, it was
alleged that having left him when he was less than three years of age, the appellant had
no emotional bond with the child; after leaving Allahabad, she had not even talked to the
minor child over the telephone or enquired about his welfare; being the natural
@page-SC2263
guardian of the child he was capable of and was, in fact, looking after the welfare of the
child; the child was studying in a prestigious school at Allahabad for which he was
paying a fee of Rs. 25,000/- per annum and had also nominated him in his insurance
policy. As regards his financial position, it was stated that he owns a house, telephone and
a motor car whereas the appellant has no house of her own and is living with her mother
and brother in a two-room flat at Calcutta.
7. In support of her contentions, the appellant examined herself as PW-1 and two doctors.
On the other hand, the respondent examined himself as DW-1 and two of his neighbours
as DW-2 and DW-3. Inter alia, observing that the welfare and interest of the minor is of
utmost importance in relation to grant of custody to either of the parents and taking into
consideration the evidence adduced by the parties, the Family Court found the respondent
to be unfit to act as a guardian of the minor child. The Court felt that the appellant had
never neglected her child but had to leave Allahabad to save her life. According to the
Family Court, several applications moved by the appellant for interim custody, during the
pendency of the custody application, showed that she had affection for her child. The
Court observed that the appellant was a highly qualified teacher drawing a salary of Rs.
22,000/- per month whereas the respondent was only a private contractor without regular
source of income and though the child was studying in a prestigious school in Allahabad,
there was lack of constant care and protection of the child in the house of the respondent.
Finding the testimony of the appellant and her two witnesses to be credible, the Family
Court held that for the welfare of the child, the custody should be with the mother.
Accordingly, the application was allowed; the appellant was declared to be the lawful
guardian of her minor son and the respondent was directed to hand over the custody of
Satyajeet to the appellant, within one month of the date of judgment.
8. Being aggrieved, the respondent preferred Regular Appeal to the High Court, vide
order dated 28th February, 2007, the High Court has set aside the order of the Family
Court and granted permanent custody of Satyajeet to the respondent. During the
pendency of the appeal, vide order dated 7th November, 2005, as an interim measure, the
High Court granted the custody of the child to the appellant. The High Court obtained the
opinion of the Director of Psychology, Allahabad, who examined the mother, the father
and the child and also talked to the child practically on every date of hearing. In the
proceedings held on 23rd May, 2006, extracted in the impugned order, in response to the
question as to whether he would like to stay with his father or mother, the child stated
that he would prefer to stay at Allahabad as it is his birth place and his mother should
come and stay with him at Allahabad. It is significant to note that the child had stated so
despite the fact that he was living with his mother since 7th November, 2005, under the
order of the Court. Taking into account the material on record, the High Court found
that : (i) the respondent is financially sound and able to cater to all the needs of the child
for his development whereas the appellant is unable to provide the same since she is
living all alone; (ii) the child is not able to reconcile with his uprooting from Allahabad
and denial of love and affection of the father; and (iii) the questions which were put to the
child and answers thereto indicate that the child wants to study at Allahabad. Having
regard to the prevalent circumstances and the fact that the child had received his
education from primary stage with his father at Allahabad, the Court came to the
conclusion that the welfare and development of the child and his future would be best
served at present at Allahabad in the hands of the father. Accordingly, the High Court set
aside the order passed by the Family Court and granted the custody of Master Satyajeet to
the respondent, with the following directions :
" 1. The appellant shall make arrangement for Master Satyajeet to continue his studies in
best schools of Allahabad and will ensure the development and welfare of the child in the
best way possible.
2. The respondent-mother Ms. Mausami Moitra shall be at liberty to visit the child either
in the appellant's house or in the premises of mutual friend or at an agreed place at any
point of time and the appellant-father shall not object to her meeting with the child.
3. The appellant will also allow the child to live with the mother during school vacations
or on appropriate occasions.
4. Master Satyajeet shall be allowed to
@page-SC2264
attend and participate in family functions/ festivities subject to his school attendance and
examinations etc. which are held in the family of her mother or during any other
occasions as jointly agreed to by both the appellant-father and the respondent-mother.
5. Any other further arrangements mutually agreed to between the appellant-father and
the respondent-mother in the interest of the child."
Consequently, the custody of the child was restored to the father. It is this order of the
High Court which is under challenge in the present appeal.
9. When the matter came up for hearing, while issuing notice to the respondent, it was
directed that the appellant-mother and the respondent-father will remain present in Court
in person and the father shall also bring the child with him. On 24th January, 2008, both
the parties and Master Satyajeet appeared before us. Before hearing the case, we
interviewed Satyajeet in chambers and found that he was quite intelligent and was able to
understand the facts and circumstances in which he was placed. He could comprehend
matters and visualize his own well-being. He seemed to have no complaint against his
father. He explicitly stated before us that he was not inclined to go with his mother and
would like to stay with his father and continue his studies at Allahabad where he has quite
a few friends.
11. Learned counsel appearing for the appellant submitted that the order of the High
Court directing handing over of the custody of the minor child to the father is vitiated
because the High Court has ignored the basic principles of law relating to the custody of
the child, as enunciated by this Court in several judgments. It was contended that the
High Court has failed to take note of a vital fact that being a contractor, the husband
would remain away from the house most of the time and, therefore, will have very little
time at his disposal to look after the needs of the child, who is left under the care of
father's old mother. It was also urged that being a school teacher in a public school, the
appellant will be in a much better position to take care of the needs of the child. It was
pointed out that the appellant has now joined Delhi Public School at Panipat and has been
allotted a staff quarter where the child can stay under her care and can also study in the
same school. It is, thus, asserted that the appellant-mother would be in a much better
position to take care of the needs of the child in comparison to the respondent.
12. Learned counsel appearing for the respondent, on the other hand, while refuting the
allegation regarding the non-availability of the respondent, laid stress on the fact that
during interview of the child by the High Court and this Court, the child has in very clear
terms expressed the desire to stay with the father which shows that he is being looked
after properly and is already studying in a good school at Allahabad. It was submitted that
shifting of the child from Allahabad to Panipat in an absolutely new environment, all
alone, with the mother, who had abandoned him when he was less than three years of age
would not only adversely affect his studies, it will also affect him emotionally.
13. Thus, as noted supra, the short question for consideration is whether the
circumstances as highlighted by the parties warrant that the custody of the child should be
changed from father to the mother?
14. The principles of law in relation to the custody of a minor child are well settled. It is
trite that while determining the question as to which parent the care and control of a child
should be committed, the first and the paramount consideration is the welfare and interest
of the child and not the rights of the parents under a statute. Indubitably the provisions of
law pertaining to the custody of a child contained in either the Guardians and Wards Act,
1890 (Section 17) or the Hindu Minority and Guardianship Act, 1956 (Section 13) also
hold out the welfare of the child as a predominant consideration. In fact, no statute, on the
subject, can ignore, eschew or obligerate the vital factor of the welfare of the minor. The
question of welfare of the minor child has again to be considered in the background of the
relevant facts and circumstances. Each case has to be decided on its own facts and other
decided cases can hardly serve as binding precedents insofar as the factual aspects of the
case are concerned. It is, no doubt, true that father is presumed by the statutes to be better
suited to look after the welfare of the child, being normally the working member and
head of the family, yet in each case the
@page-SC2265
Court has to see primarily to the welfare of the child in determining the question of his or
her custody. Better financial resources of either of the parents or their love for the child
may be one of the relevant considerations but cannot be the sole determining factor for
the custody of the child, it is here that a heavy duty is cast on the Court to exercise its
judicial discretion judiciously in the background of all the relevant facts and
circumstances, bearing in mind the welfare of the child as the paramount consideration.
15
. In Rosy Jacob v. Jacob A. Chakramakkal1, a three-Judge bench of this Court in a rather

curt language had observed that the children are not mere chattels; nor are they mere
play-things for their parents. Absolute right of parents over the destinies and the lives of
their children has, in the modern changed social conditions, yielded to the considerations
of their welfare as human beings so that they may grow up in normal balanced manner to
be useful members of the society and the guardian Court in case of a dispute between the
mother and the father, is expected to strike a just and proper balance between the
requirements of welfare of the minor children and the rights of their respective parents
over them. AIR 1973 SC 840
1. (1973) 1 SCC 840.

16. In Halsbury's Laws of England (Fourth Edition, Vol. 13), the law pertaining to the
custody and maintenance of children has been succinctly stated in the following terms :
"809. Principles as to custody and upbringing of minors. Where in any proceedings
before any Court, the custody or upbringing of minor is in question, the Court, in
deciding that question, must regard the welfare of the minor as the first and paramount
consideration, and must not take into consideration whether from any other point of view
the claim of the father in respect of such custody or upbringing is superior to that of the
mother , or the claim of the mother is superior to that of the father. In relation to the
custody or upbringing of a minor, a mother has the same right and authority as the law
allows to a father, and the rights and authority of mother and father are equal and are
exercisable by either without the other."
17. Having bestowed our anxious consideration to the material on record and the
observations made by the Courts below, we are of the view that in the present case there
is no ground to upset the judgment and order of the High Court. There is nothing on
record to suggest that the welfare of the child is in any way in peril in the hands of the
father. In our opinion, the stability and security of the child is also an essential ingredient
for a full development of child's talent and personality. As noted above, the appellant is a
teacher, now employed in a school at Panipat, where she had shifted from Chandigarh
some time back. Earlier she was teaching in some school at Calcutta. Admittedly, she is
living all alone. Except for a very short duration when he was with the appellant, Master
Satyajeet has been living and studying in Allahabad in a good school and stated to have
his small group of friends there. At Panipat, it would be an entirely new environment for
him as compared to Allahabad. Having interviewed Satyajeet in our chambers for some
time, we find it difficult to accept the stand of the appellant that the father does not have
sufficient time or resources to look after the welfare of the child. We are convinced that
the dislocation of Satyajeet, at this stage, from Allahabad, where he has grown up in
sufficiently good surroundings, would not only impede his schooling, it may also cause
emotional strain and depression on him. It is also significant to note that during the
course of hearing on one of the dates, when we had not yet interviewed Satyajeet, we had
suggested that it would be better if the child could stay with his mother for some more
time. However, upon hearing us, he started crying and whining and, showed reluctance to
go with the mother. Watching his reaction, we dropped the proposal. Under these
circumstances and bearing in mind the paramount consideration of the welfare of the
child, we are convinced that child's interest and welfare will be best served if he
continues to be in the custody of the father. In our opinion, for the present, it is not
desirable to disturb the custody of Master Satyajeet and, therefore, the order of the High
Court giving his exclusive custody to the father with visitation rights to the mother
deserves to be maintained. We feel that the visitation rights given to the appellant by the
High Court, as noted above, also do not require any modification. We, therefore, affirm
the orders and the afore-extracted directions given by the High Court. It will, however, be
open to the
@page-SC2266
parties to move this Court for modification of this order or for seeking any direction
regarding the custody and well-being of the child, if there is any change in the
circumstances.
18. In the result, the appeal fails and is dismissed accordingly. However, having regard to
the nature of the case, we leave, the parties to bear their own costs.
Appeal dismissed.
AIR 2008 SUPREME COURT 2266 "New India Assurance Co. Ltd. v. Roshanben
Rahemansha Fakir"
(From : Gujarat)
-2008
New India Assurance Co. Ltd. v. Roshanben Rahemansha Fakir and Anr.
Motor Vehicles Act (59 of 1988), S.3, S.10, S.149 - Central Motor Vehicles Rules (1989),
R.51 - MOTOR VEHICLES - INSURANCE - LICENSE - Liability of insurer - Accident
claim - Driver of offending vehicle was holder of licence of three wheeler i.e.
autorickshaw delivery van - Licence was not meant for driving 'transport vehicle' but for
goods carrying public carrier - Fact that licence was granted for 20 years and not 3 years
shows that driving licence was not for transport vehicle - Insurer is, therefore, not liable.
2004 AIR SCW 663 and 2008 AIR SCW 906, Relied on.
2006 AIR SCW 1649. Ref. to.
First Appeal No. 3441 of 2006, D/-13-11-2006 (Guj.), Reversed. (Paras 10, 12, 15)
2006 AIR SCW 1649 : AIR 2006 SC 3440 : 2006 (3) AIR Kar R 215 : 2006 (2) AIR Jhar
R 662 (Ref. to) 6, 13
Dr. Meera Agarwal and Ramesh Chandra Mishra, for Appellant; Mrs. Sarda Devi, for
Respondents.
Judgement
2. This appeal is directed against a judgment and order dated 13-11-2006 passed by a
Division Bench of the High Court of Gujarat at Ahmedabad in First Appeal No. 3441 of
2006 whereby and whereunder an appeal preferred by the appellant herein from a
judgment and order dated 5-5-2006 passed by the Motor Accident Claims Tribunal
(Main), Rajkot in MPCP No. 1211 of 2005 has been dismissed.
3. One Majothee Salim Amadbhai was holder of a licence of a three wheeler. The licence
was not meant to be used to drive transport vehicle. The vehicle was owned by one
Rashmikant Natvarlal Joshi, respondent No. 2. The Tribunal correctly noticed the
description of the class of vehicle, i.e., an Autorikshaw Delivery Van. It was not being
used for a private purpose. It was a commercial vehicle. Respondent No.2, admittedly,
entered into a contract of insurance in respect of the said vehicle. Certificate of insurance
shows that the vehicle was a goods carrying public carrier within the meaning of Rule 51
of the Central Motor Vehicles Rules, 1989.
4. One of the contentions raised by the appellant was that the driver of the said vehicle
being not holder of a legal, valid and effective driving licence, it was not liable to
reimburse the claim of the claimants. Learned Tribunal negatived the said plea.
5. On an appeal preferred by the appellant before the High Court under Section 173 of the
Motor Vehicles Act, 1988 the High Court held as under :
"Section 41 of the Act provides for registration of motor vehicles and sub-section (4)
thereof provides as under :
(4) In addition to the other particulars required to be included in the certificate of
registration, it shall also specify the type of the motor vehicle, being a the as the Central
Government may, having regard to the design, construction and use of the motor vehicle,
by notification in the official Gazette, specify.'
In exercise of the aforesaid powers, the Central Government issued notification vide S. O.
451(E), dated 19th June, 1992 published in the Gazette of India, Extra Pt. II, Section 3(ii)
dated 19th June, 1992 specifying the types of motor vehicles. Relevant portion of the said
notification read as under :
'In exercise of the power conferred by subsection (4) of Section 41 of the Motor Vehicles
Act, 1988 (59 of 1988) and in supersession of the Notification No. S. O. 436(E), dated
the 12th June, 1989 except or respects things done or omitted to be done before
@page-SC2267
such supersession, the Central Government hereby specifies the types of Motor Vehicles
mentioned in column 2 of the Table below as the type and respect of Motor vehicles
specified in the corresponding entry in column 1 thereof for the purposes of sub-section
(4 :
TABLE
Transport Vehicle Non-Transport Vehicle

(1) (2)
(i) ..... (i) .....
(ii) to (ix) ..... (ii) to (iv) .....
(x) Three-wheeled vehicles transport of passenger/ goods (v) Three-wheeled vehicles
for personal use.
We find that the same classification is maintained in the subsequent notification dated 5th
November, 2004 published in the Gazette of India, Extraordinary, Part-II, Section 3 (ii)
dated 5th November, 2004 in exercise of the same powers under sub-section (4) of
Section 41 of the Act. The relevant entries therein read as under :
Transport Vehicle Non-Transport Vehicle

(1) (2)
(i) to (iv) (i) to (iii) ......
(v) Three wheeled vehicles for transport of passenger/goods (iv) Three wheeled
vehicles for personal use.
8. A bare perusal of the above statutory orders would clearly show that an auto rickshaw
being a three wheeled vehicle will fall in the same category whether it is for transporting
goods or for transporting passengers. There is nothing on record to show that the licence
in question was for a three wheeled vehicle for personal use and that it was riot for an
auto rickshaw for carrying passengers or for carrying goods."
6
. An appeal preferred by the appellant was dismissed summarily. Before the High Court, a
decision of this Court in National Insurance Company v. Kusum Rai ((2006) 4 SCC 250)
was cited. The High Court opined that the said decision has no application in the instant
case. 2006 AIR SCW 1649
7. Dr. Meera Agrawal, learned counsel appearing on behalf of the appellant, would
submit that in view of the fact that the registration certificate as also the policy of
insurance having clearly mentioned that the vehicle in question was a transport vehicle
and as the driver thereof was not possessing a licence which was not valid for a transport
vehicle, the impugned judgment cannot be sustained.
8. Ms. Sarda Devi, learned counsel appearing on behalf of the respondent, on the other
hand would submit that the driver of the vehicle was having an effective driving licence
for auto rickshaw and it did not matter as to whether it was adapted for carrying
passengers or goods.
9. Section 3 of the Motor Vehicles Act reads as under :
"Section 3 - Necessity for driving licence.
(1) No person shall drive a motor vehicle in any public place unless he holds an effective
driving licence issued to him authorising him to drive the vehicle; and no person shall so
drive a transport vehicle other than (a motor cab or motor cycle hired for his own use or
rented under any scheme made under sub-section (2) of Section 75) unless his driving
licence specifically entitles him so to do.
(2) The conditions subject to which subsection (1) shall not apply to a person receiving
instructions in driving a motor vehicle shall be such as may be prescribed by the Central
Government."
10. Section 10 of the Act provides for classes of the driving licence, different classes of
vehicle have been defined in different provisions of the Motor Vehicles Act. The
'transport vehicle' is defined in Section 2(47) of the Act to mean a public service vehicle,
a goods carriage, an educational institution bus or a private service vehicle. We have
noticed hereinbefore the provisions of sub-section (4) of Section 41. We have also noticed
the notification issued by the Central Government in this behalf. The said notification
clearly postulates that a three wheeled vehicle for transport of passengers or goods comes
within the purview of class 5 of the table appended thereto. The licence granted in favour
of the said Salim Amadbhai goes to show that the same was granted for a vehicle other
than the transport vehicle. It was valid from 13-5-2004 to 12-5-2024. Section 14(2) (a)
provides that a driving licence issued or renewed under the Act shall,
@page-SC2268
in case of a licence to drive a transport vehicle will be effective for a period of three years
whereas in the case of any other vehicle it can be issued or renewed for a period of 20
years from the date of issuance or renewal. The fact that the licence was granted for a
period of 20 years, thus, clearly shows that Salim Amadbhai, driver of the vehicle, was
not granted a valid driving licence for driving a transport vehicle.
11. The same is also borne out from the licence in question. The attention of the High
Court, however, was not drawn to these aspects of the matter.
The learned Tribunal also, in its judgment dated 5-5-2006 noticed the facts in the
following terms :
"When they were proceeding on road on foot and reached near Fire brigade, a rickshaw
bearing No. GRP 5432 with closed body came in fast speed, rashly and negligently from
behind and dashed with the complainant Ikbala and deceased Mahamadsha as a result of
which both of them fell down, sustained injuries, deceased sustained serious injuries on
his head and other parts of the body, and during the course of treatment he succumbed to
the injuries."
12. From the discussions made hereinbefore, it is evident that the driver of the vehicle
was not holding an effective licence. Possession of an effective licence is necessary in
terms of Section 10 of the Motor Vehicles Act.
13
. In National Insurance Co. Ltd. v. Swaran Singh and Ors. ((2004) 3 SCC 297), this Court
opined : 2004 AIR SCW 663, (Para 84)
"89. Section 3 of the Act casts an obligation on a driver to hold an effective driving
licence for the type of vehicle which he intends to drive. Section 10 of the Act enables the
Central Government to prescribe forms of driving licences for various categories of
vehicles mentioned in sub-section (2) of the said section. The various types of vehicles
described for which a driver may obtain a licence for one or more of them are : (a)
motorcycle without gear, (b) motorcycle with gear, (c) invalid carriage, (d) light motor
vehicle, (e) transport vehicle, (f) road roller, and (g) motor vehicle of other specified
description. The definition clause in Section 2 of the Act defines various categories of
vehicles which are covered in broad types mentioned in sub-section (2) of Section 10.
They are "goods carriage", "heavy goods vehicle", "heavy passenger motor vehicle",
"invalid carriage", "light motor vehicle", "maxi-cab", "medium goods vehicle", "medium
passenger motor vehicle", "motor cab", "motorcycle", "omnibus", "private service
vehicle", "semi-trailer", "tourist vehicle", "tractor", "trailer" and "transport vehicle". In
claims for compensation for accidents, various kinds of breaches with regard to the
conditions of driving licences arise for consideration before the Tribunal as a person
possessing a driving licence for "motorcycle without gear" (sic may be driving a vehicle)
for which he has no licence. Cases may also arise where a holder of driving licence for
"light motor vehicle" is found to be driving a "maxi-cab", "motor -cab" or "omnibus" for
which he has no licence. In each case, on evidence led before the Tribunal, a decision has
to be taken whether the fact of the driver possessing licence for one type of vehicle but
found driving another type of vehicle, was the main or contributory cause of accident. If
on facts, it is found that the accident was caused solely because of some other unforeseen
or intervening causes like mechanical failures and similar other causes having no nexus
with the driver not possessing requisite type of licence, the insurer will not be allowed to
avoid its liability merely for technical breach of conditions concerning driving licence.
The said decision has been considered by this Court Kusum Rai (supra). 2006 AIR
SCW 1649
14
. In National Insurance Company Ltd. v. Annappa Irappa Nesaria and Ors. ((2008) 1
SCALE 642), it was noticed that the provisions of the Act have undergone a change. The
definition of 'light motor vehicle' would not include a light transport vehicle. In that case,
keeping in view the date on which the accident took place, it was held : 2008 AIR
SCW 906
"From what has been noticed hereinbefore, it is evident that transport vehicle has now
been substituted for 'medium goods vehicle' and 'heavy goods vehicle'. The light motor
vehicle continued, at the relevant point of time, to cover both, light passenger carriage
vehicle and light goods carriage vehicle. A driver who had a valid licence to drive a light
motor vehicle, therefore, was authorized to drive a light goods vehicle as well."
@page-SC2269
15. For the reasons aforementioned, the impugned judgment cannot be sustained. The
same is set aside accordingly. However, in exercise of our jurisdiction under Article 142
of the Constitution of India, we directed that the appellant may satisfy the award in
favour of the claimants to recover the same from the owner. The appeal is allowed with
the aforementioned directions. No costs.
Appeal allowed.
AIR 2008 SUPREME COURT 2269 "Bajaj Auto Ltd. v. Director General (I and R)"
Coram : 2 TARUN CHATTERJEE AND DALVEER BHANDARI, JJ.
Bajaj Auto Ltd. v. Director General (I and R) and Anr.
Monopolies and Restrictive Trade Practices Act (54 of 1969), S.33, S.10 -
MONOPOLIES AND RESTRICTIVE TRADE PRACTICES - Notice or application for
enquiry - Not alleging that appellant has indulged in distorting or restricting competition
in any manner or tends to bring about manipulation of prices etc. - Notice/application not
maintainable.
The Commission must be extremely careful before issuing notices to the parties because
it has serious consequences on the reputation and credibility to the activities of those
parties. Frivolous notices breed long drawn avoidable litigation before various forums.
Therefore, where neither the notice nor the application even allege that the appellant has
ever indulged in or that the alleged trade practice has or may have the effect of
preventing, distorting or restricting competition in any manner and in particular it, inter-
alia, tends to obstruct the flow of capital or resource into the stream of production or
tends to bring about manipulation of prices or conditions of delivery or to affect flow of
supplies into the market in such a manner so as to impose unjustified costs and/or
restrictions on the consumers of goods in question and, therefore, ex facie neither notice
nor the application are maintainable. (Paras 28, 29)
(1994) 4 Comp LJ 395 (MPTC) (Ref.) 26
(1995) 1 Comp LJ 421 (MPTPC) (Ref.) 27
AIR 1979 SC 798 (Ref.) 25
Joseph Vellapally, Sr. Advocate, Shailendra Swarup, Ms. Neha Khatter and Debarshi
Bhadra, with him for Appellant; T.S. Doabia, Sr. Advocate, Manpreet Singh Doabia and
Shreekant N. Terdal, with him for Respondents.
Judgement
1. DALVEER BHANDARI, J. :- This appeal is directed against the judgment delivered
by the Monopolies and Restrictive Trade Practices Commission (hereinafter referred to as
the 'Commission') in Restrictive Trade Practices Enquiry No. 159 of 1996 dated 27th
October, 2000.
2. Brief facts which are necessary to dispose of this appeal are recapitulated as under :
The Director General (Investigation and Registration) under Section 10 (a)(iii) of the
Monopolies and Restrictive Trade Practices Act, 1969 (hereinafter referred to as "the
Act") sent an application that an enquiry be instituted against Bajaj Auto Limited
(hereinafter referred to as the 'appellant')" for indulging in restrictive trade practice within
the meaning of Section 33 of the Act.
3. The Notice of Enquiry was issued on 18.11.1996 in pursuance of which the appellant
filed its reply refuting the allegations levelled against it. According to the appellant, the
agreement between the appellant and the dealers contain certain clauses which are
restrictive in nature, squarely falling under Section 33 of the Act. These relate to
restrictions of the territory in which the dealer is to operate, the tie-up agreement by
fixing targets and maintaining the resale price. The appointment letter of the dealer dated
11.5.1994 indicates that it is restricted to 'Rajkot' alone which is restriction of an area
within the terms of Section 33(1)(g) of the Act. Section 33(1)(g) is reproduced as under :
"33. Registrable agreements relating to restrictive trade practices. - (1) Every agreement
falling within one or more of the following categories shall be deemed, for the purposes
of this Act, to be an agreement relating to restrictive trade practices and shall be subject
to registration in accordance with the provisions of this Chapter, namely :
XXX XXX XXX XXX
XXX XXX XXX XXX
(g) any agreement to limit, restrict or withhold the output or supply of any goods or
allocate any areas or market for the disposal of the goods;"
4. It is further alleged against the appellant
@page-SC2270
that it fixed the sales targets in respect of various products and imposed a restriction on
the dealer to purchase one or more products as a condition is covered under Section 33(1)
(b) of the Act. Section 33(1)(b) is reproduced as under :
"33.(1) xxxx xxxx xxxx
(b) any agreement requiring a purchaser of goods, as a condition of such purchase, to
purchase some other goods;"
5. It is further alleged that the fixation of prices of the products as per clause DD of letter
dated 7.9.1994 brings the case within the purview of Section 33(1)(f) of the Act. Section
33(1)(f) is reproduced as under :
"33.(1) xxxx xxxx xxxx
(f) any agreement to sell goods on condition that the prices to be charged on re-sale by
the purchaser shall be the prices stipulated by the seller unless it is clearly stated that
prices lower than those prices may be charged."
6. The appellant submitted a comprehensive reply denying all the charges levelled against
it. It was submitted on behalf of the appellant as a preliminary objection that practices as
alleged do not fall under Section 2(o) of the Act which is a pre- requisite condition before
the action can be taken against the appellant. Section 2(o) of the Act reads as under :
"2(o) "restrictive trade practice" means a trade practice which has, or may have the effect
of preventing, distorting or restricting competition in any manner and in particular, -
(i) which tends to obstruct the flow of capital or resources into the stream of production,
or
(ii) which tends to bring about manipulation of prices, or conditions of delivery or to
affect the flow of supplies in the market relating to goods or services in such manner as to
impose on the consumers unjustified costs or restrictions;"
7. In reply, it was also contended that the dealers' appointment at Rajkot neither
prescribes any territorial limit nor does it restrain it to sell goods outside Rajkot. In
absence of any such restraint, the statement in the Preamble and the Appointment Letter
cannot be construed to mean an agreement allocating area or market for disposal of goods
in question. The identification of a place is for the purpose of establishing necessary
facilities, infrastructure for after sales and maintenance of services. The relevant portion
of the letter which has been sent to a dealer at Rajkot reads as under :
"We have pleasure in appointing you as our dealer at Raikot".'
8. In the reply, it was also contended that the product-wise and total sales targets for the
year read with next para of the letter clarify that it is only indicative of expectation on the
part of the appellant. It neither compels nor obliges the dealer to buy one or the other
Bajaj products. Non achievement of targets in no way affects the dealership. As regards
price fixation, clause DD of letter dated 7.9.1994 has to be read with clause Q of the
dealership agreement. In the face of clear specification that the dealer is at liberty to sell
the goods at lower than the recommended retail prices, question of invoking the provision
of Section 33(1)(f) does not arise. These clauses in no way distort or impair the
competition. Therefore, the Notice of Enquiry needs to be discharged.
9. The Commission framed the following issues :
1. Whether the Notice of Enquiry (NOE) is not maintainable for the preliminary objection
taken by the appellant in its reply to the NOE?
2. Whether the appellant has indulged in or is indulging in the alleged restrictive trade
practices?
3. Whether the alleged restrictive trade practices are not prejudicial to public interest?
4. Relief
10. Both the parties led documentary as well as oral evidence. The Commission did not
find any merit in the preliminary objection taken by the appellant that Section 2(o) of the
Act is not attracted.
11. In the impugned judgment, pertaining to the charge of territorial restriction, the
Commission came to the conclusion that the preamble read with the appointment letter
speaks of the dealership at "Rajkot". Apparently, the use of the word 'at' as against 'for' is
capable of bringing two constructions. It can refer to place from where the activities are
carried on or the territory to which it confines to. Intention of the parties has not been
clearly conveyed by the 'unhappy expression' used both in the dealership agreement as
well as in the letter of
@page-SC2271
appointment. If there is any oral understanding that the dealer is free to sell the goods
outside the territory, the same has not been shown either by direct or circumstantial
evidence. Absence of transparency in the clause can lead to manipulation of clause at the
end of the parties. Such practices of territorial restrictions impair the competition in the
market as it limits the choice of the consumer to a particular dealer who may not indulge
in unfair dealings. This is certainly not in public interest.
12. According to the Commission, the alleged restrictive trade practice is covered under
Section 33(1)(g) of the Act and as such being prejudicial to public interest. The
Commission directed appellant No. 1 to cease the aforesaid practice if continued at
present and desist from repeating the same in future.
13. Regarding fixation of sales target, the Commission observed that the quantity of
product to be purchased not by reason of market demand but on account of target fixed
by the appellant would certainly amount to tie-up of one product with another attracting
clause (b) of Section 33(1) of the Act.
14. Regarding dealership agreement, the Commission observed that it fairly laid down
that the dealer is free to sell at a lower price than the recommended retail price. Clause
DD, on the other hand, refers to the revised prices which have been made effective from
1.10.1994. As per this clause, the vehicles already in stock as on 1.10.1994 are to be sold
at the old prices. This is clearly beneficial to the consumer or consumers at large and is in
public interest. It refers to fair dealing on the part of the appellant and prevents any
unjustified cost being imposed on the consumer. In the circumstances, we are of the
considered view that the charge as levelled does not fall under clause (f) of Section 33(1)
of the Act.
15. While disposing of the complaint, the Commission directed the appellant to give
effect to this order within six weeks from the date of receipt of the order and file an
affidavit of compliance within four weeks thereafter.
16. The appellant (who was the respondent before the Commission) filed a
comprehensive reply. In the reply, it was mentioned that the MRTP Act is a result
oriented Act. It is designed to be applied to practical situation, and, therefore, unless all
the facts and circumstances including the facts constituting restrictive trade practice
within the meaning of Section 33(1)(b), (f) and (g) read with Section 2(o) of the MRTP
Act, particularly the fact as to how the competition is prevented, distorted or restricted
and in particular which tends to, inter alia, bring about manipulation of prices or
conditions of delivery or to affect the flow of supplies in the market relating to goods in
question in such a manner as to impose on the consumers unjustified cost or restriction,
are set out in the notice and the application, neither the notice nor the application meets
the aforesaid requirement of law and in view thereof the notice is without jurisdiction and
not maintainable in law.
17. The appellant asserted before the Commission that the existence of a restrictive trade
practice as defined under Section 2(o) of the MRTP Act is a condition precedent to the
exercise of the jurisdiction by the Commission. The appellant submitted that none of the
trade practices alleged in the notice, as would be evident from the facts set out
hereinafter, constitute restrictive trade practice and, therefore, the notice is misconceived
and not maintainable in law.
18. It is incorporated in the reply that the jurisdictional facts for applicability of Section
33(1)(b) (f) and (g) of the MRTP Act are lacking on the facts set out in the notice and the
application and, therefore, the application is not maintainable and the notice is liable to be
set aside.
19. It is also incorporated in the reply that the appointment letter only states that the
appointment is a Dealer at Rajkot. It neither prescribes any territory nor does it restrict in
any way the dealer to any territory or area for disposal of goods in question and,
therefore, in the absence of any such restraint, the statement in the preamble in the
appointment letter cannot be construed or interpreted as an agreement allocating area or
market for disposal of the goods in question. It was further submitted on behalf of the
appellant that it is pre-requisite for and an essential ingredient of the restrictive trade
practice referred in Section 33(1)(g) of the Act, the jurisdictional facts for applicability
are not present and, therefore, Section 33(1)(g) of the MRTP Act has no application. The
purpose of indicating 'at Rajkot' only means the identification of place which is necessary
as the dealer has to establish
@page-SC2272
at Rajkot necessary facilities and infrastructure for after-sales maintenance and service
including warranty services of the scooters and other vehicles. In the reply, it was further
submitted that the jurisdictional facts for application of Section 33(1)(b) are lacking
inasmuch as the said letter dated 11.5.1994 neither obliges nor compels the dealer to
purchase all the goods as a condition of purchase of other goods nor does it oblige the
dealer as a condition of purchase of any of them to purchase any other goods. The said
letter only sets targets, requesting the dealer to "gear up" for "their achievement" and
answering their expectation and, therefore, the jurisdictional facts for application of
Section 33(1)(b) of the MRTP Act are lacking and both the notice and the application are
not maintainable in this behalf.
20. The appellant submitted that the jurisdictional facts for applicability of Section 33(1)
(f) are lacking inasmuch as the letter dated 7.9.1994 cannot be read in isolation but has to
be read with the appointment letter. The relevant portion of Clause 'Q' of the Dealership
Agreement reads as under :
"You shall not sell our vehicles at higher than our recommended retail prices. You will,
however, be free to sell at lower than the recommended retail prices. Taxes and Octroi
whenever applicable, may be charged extra." (Emphasis supplied)
21. The appellant, Bajaj Auto Ltd. on its own initiative for a fair and wide geographical
distribution of Bajaj products and availability of adequate after-sales-service appointed
dealers for its products all over the country so as to ensure that Bajaj products and
adequate after-sales-service are available throughout the country. It is submitted on behalf
of the appellant that there is no territorial restriction or restraint on allocation of
geographical area to the dealer. The appointment of dealer at a specific geographical
location is to ensure that their services are made available to the consumers.
22. It was also submitted on behalf of the appellant that if the dealer is not appointed at a
specific geographical location, the dealer would not be obliged to have in that
geographical area the showroom, workshop, service facility and stock of spares. The
absence of such facilities etc. would not be and is not in public interest. Appointing a
dealer at a geographical location in no way restricts, prevents or distorts competition in
any manner, as a customer has a choice of buying any makes he likes or going to any
person he likes for servicing or repair of his vehicle. Such appointment also ensures that
the dealer who is selling the Bajaj products in a particular geographical location is
responsible for adequate after-sales-services to the customers of the vehicle sold by it and
to keep them running and in good condition.
23. The appellant also submitted before the Commission that to motivate the dealers for
increasing sales, the appellant fixes sales target for the year. Fixing of sales targets do not
and cannot mean that the dealer is required or compelled to buy one or the other Bajaj
products. The appellant submitted that the setting of target as outlined in the said letter
dated 11.5.1994 is not a process of performance appraisal, but is a condition imposed in
the agreement, the gateway laid down in clause (h) of Section 38(1) of the MRTP Act is
squarely applicable as the condition does not directly or indirectly restrict or discourage
competition in the two and three wheeler market to any extent at all.
24. It is submitted that, by no stretch of imagination, the appellant has indulged in
restrictive trade practice and the provisions of clauses (b), (f) and (g) of Section 33(1) of
the MRTP Act are not attracted.
25
. The appellant company placed reliance on the case of Mahindra and Mahindra Ltd. v.
Union of India (1979) 2 SCC 529, wherein it was held that it is only where a trade
practice has the effect, actual or probable, or restricting, lessening or destroying
competition that it is liable to be regarded as a restrictive trade practice and in order to
arrive at a decision that a trade practice is a restrictive trade practice, the same cannot be
decided on any theoretical or a prior reasoning, but by inquiring whether the trade
practice has or may have the effect of preventing, distorting or restricting competition.
AIR 1979 SC 798
26. Reliance has also been placed on the case of Paras Brothers [(1994) 4 Comp. Law
Journal 395], wherein it was held that a restrictive trade practice must have the following
elements :
"i. It should be a trade practice defined in section 2(o) of the Act.
ii. it should have an actual or probable
@page-SC2273
effect of preventing, distorting or restricting competition in some manner.
iii. the competition necessarily envisages the same or a similar situation.
iv. there should be manipulation of prices.
v. there should be unjustified costs or restriction as a result of such manipulation."
27. Reliance has also been placed on the case of L. C. Malhotra v. Rahul Bajaj (1995) 1
Comp. Law Journal 421, in which it was held that even isolated acts should be viewed in
the context of the practice of the respondent in relation to the question as to whether the
respondent had manipulated the conditions of delivery.
28. In the instant case, neither the notice nor the application even allege that the appellant
has ever indulged in or that the alleged trade practice has or may have the effect of
preventing, distorting or restricting competition in any manner and in particular it, inter
alia, tends to obstruct the flow of capital or resource into the stream of production or
tends to bring about manipulation of prices or conditions of delivery or to affect flow of
supplies into the market in such a manner so as to impose unjustified costs and/or
restrictions on the consumers of goods in question and therefore ex facie neither notice
nor the application are maintainable.
29. Before parting with this case, we deem it appropriate to observe that the Commission
must be extremely careful before issuing notices to the parties because it has serious
consequences on the reputation and credibility to the activities of those parties. Frivolous
notices breed long drawn avoidable litigation before various forums.
30. Consequently, the appeal filed by the appellant is allowed with costs and the
impugned judgment passed by the Monopolies and Restrictive Trade Practices
Commission in RTP Enquiry No. 159 of 1996 dated 27th October, 2000 is set aside.
Appeal allowed.
AIR 2008 SUPREME COURT 2273 "Man Mohan v. Mohd. Mohinuddin Ali Khan"
Man Mohan and Ors. v. Mohd. Mohinuddin Ali Khan (dead) by L. Rs.
A.P. (Telangana Area) Tenancy and Agricultural Lands Act (21 of 1950), S.45, S.46,
S.2(g) - TENANCY - AGRICULTURAL LAND - POSSESSION - RESTORATION -
Restoration of possession to tenant - Failure of landowner to personally cultivate land -
Cultivation by land-holder was through two persons on 'batai' basis - Not "personal
cultivation" - Tenant entitled to restoration of possession - Clarificatory Circular issued
by Board of Revenue - Cannot override statutory provision.
C.R.P. No. 2336 of 1997, D/-17-02-1999 (A.P.). Reversed. (Para 9)
Mrs. K. Amareswari, Sr. Advocate, K. Maruthi Rao, Ms. K. Radha, Rana Kamal and Mrs.
Anjani Aiyagari, with him for Appellants; M.N. Rao, Bhaskar Gupta, Sr. Advocates, Mrs.
Sudha Gupta, B. Sri Ram, Vivek Jain, A. Ramesh and Anshuman Ashok, with them for
Respondents.
* C. R. P. No. 2336 of 1997, D/- 17-2-1999 (A.P.)
Judgement
HARJIT SINGH BEDI, J. :- This appeal is directed against the judgment of the Andhra
Pradesh High Court dated 17th February, 1999 whereby the plea of the appellant to re-
claim the status of a protected tenant under Section 45 of the Andhra Pradesh (Telangana
Area) Tenancy and Agricultural Lands Act, 1950 (hereinafter referred to as "the Act") has
been rejected. The facts are as under :
2. Dilawar Ali Khan was the original land owner. He filed an application under Section
44 of the Act for determination of the protected tenancy of the predecessor in interest of
the appellants, one Ramalingam who was a protected tenant. The said application was
allowed in the year 1967, the tenancy terminated and the land holder was put in
possession thereof. The appellants as successors of Ramalingam who died in 1973, filed
an application under Sections 45 and 46 of the Act for restoration of possession alleging
that Dilawar Ali Khan and on his death, his successors, had failed to cultivate the land in
question as contemplated by Section 45 of the Act and they were thus, entitled to a
restoration of the possession. The said petition was resisted by the land holders and it has
claimed that after the termination of the tenancy under Section 44 of the Act, Dilawar Ali
Khan had cultivated the land by investing a huge amount thereon and that after his death
his heirs had cultivated the land with the assistance of one Gopalah and Hanumaiah by
paying their wages in kind. It was also pleaded that
@page-SC2274
Ramalingam had died issueless and that Man Mohan one of the applicants who claimed
to be his adopted son was in fact not so and as such the application was not maintainable.
The Revenue Officer called for evidence from both parties and after a analysis thereof
allowed the application, both on the question of maintainability and also on facts.
3. Aggrieved thereby, the applicants preferred an appeal before the Joint Collector. This
officer found that the applicants were indeed the legal heirs of Ramalingam and that
Dilawar Ali Khan nor his successors had cultivated the land after it had been restored to
them on an application under Section 44 of the Act. The appeal was accordingly allowed.
Aggrieved thereby the land owners filed a revision petition under Section 91 of the Act
before the High Court. The court in its Judgment dated 17th February, 1999 observed that
the tenancy in the hands of Ramalingam had been terminated under Section 44 in the year
1967 and though Ramalingam had lived upto 1973 he had not raised any question with
regard to the cultivation by the land owners. The court also observed that there was clear
doubt as to the claim of adoption made by Man Mohan as the dependant certificate which
had been issued by the Revenue Officer accepting his claim as the adopted son of the
Ramalingam had no value, as it was the civil court alone that could give such a
declaration. In conclusion, the Court observed thus :
"I am of the opinion that there is no evidence to establish that the respondents are the
legal heirs and successors of late Ramalingam and consequently they are not entitled to
file an application u/Ss. 45 and 46 of the Act".
4. The Court then examined the basis on which the claim had been made and observed
that from the evidence it appeared that Dilawar Ali Khan had indeed invested huge
amounts of money for the installation of a pump and electric motor and though
admittedly he and his successors had taken the help of Gopaiah and Hanumaiah in the
cultivation of the land a perusal of their evidence showed that they were being paid on
"Batai" basis i.e. a share of the crops and as such the land was deemed to be under the
self cultivation of the land owners. The Court also relied for its conclusion on a
clarificatory Circular No. 650 dated 30th March, 1951, issued by the Board of Revenue,
Hyderabad to the effect that if a land owner and one or more persons cultivated the land
jointly sharing the expenses as well as the yield, the question of the creation of a tenancy
at will did not arise. The High Court accordingly set aside the order of the Joint
Commissioner and restored the order of the Revenue Officer. It is in this circumstance,
that the tenants are before us.
5. Mrs. K. Amareswari, the learned Senior counsel for the tenants - appellants has argued
that though Man Mohan's adoption by Ramalingam had been proved on record but even
assuming for the moment that his adoption had not been proved yet, the fact that the other
three claimants Erramma, Yadaiah and Eshwaraiah were his legal heirs was admitted and
they were accordingly entitled to maintain the application under Sections 45 and 46 of the
Act. It has also been submitted that as per Section 45, if the land owner did not cultivate
the land within the time fixed in the said provision, the tenants were entitled to a
restoration of the land on an application made for this purpose and as the final court of
fact i.e. Joint Commissioner had clearly opined that neither Dilawar Ali Khan nor his
successors had cultivated the land, the appellants were entitled to succeed.
6. The learned counsel for the respondents have however pointed out that the order of the
Tahsildar granting an adoption certificate with respect to Man Mohan was wholly without
jurisdiction and as there was no proof as to when Gopaiah and Hanumaiah had been
engaged for cultivating the land by Dilawar Ali Khan or his successors, the appeal was
liable to be dismissed.
7. We have gone through the arguments advanced by the learned counsel for the parties.
We are of the opinion that we are not really called upon to examine Man Mohan's status
as the adopted son of Ramalingam in the light of the fact that the application for
restoration of possession filed under Sections 45 and 46 of the Act is maintainable at the
instance of the other three claimants who are admittedly the heirs of Ramalingam. It is
true, as has been contended by the learned counsel, that Ramalingam lived upto the year
1973 but did not choose to make an application in terms of Sections 45 and 46 during his
lifetime and left it to his successors to do so after his death. We find from a perusal of
@page-SC2275
the Act that there appears no impediment to the maintenance of such an application, and a
perusal of Section 40 of the Act on the contrary clarifies that the rights of protected
tenants are heritable with a few exceptions which are of no concern in this matter.
8. In this background the substantive issue would be as to whether Dilawar Ali Khan or
his successors had cultivated the land in terms of Section 45 of the Act and on a failure to
do so the consequences thereof, Sections 45 and 46 are re-produced below :
"45. Landholder to restore possession if he fails to cultivate within one year :- (i) If upon
the termination of tenancy under section 44 the landholder -
(a) does not within one year from the date on which he resumed possession of the land, or
(b) having commenced such discontinues the same within ten years of the said date, he
shall forthwith restore possession of the land to the tenant whose tenancy was terminated
by him unless he has obtained from the tenant his refusal in writing to accept the tenancy
on the terms and conditions prevailing before the termination of the tenancy or has
offered in writing to give possession of the land to the tenant on the said terms and
conditions and the tenant has failed to accept the offer within three months of the receipt
thereof :
(2) After the tenant has recovered possession of the land under sub-section (1) he shall,
subject to the provisions of this Act, hold the same on the terms and conditions on which
he held it immediately before the termination of his tenancy.
(3) If the land holder fails to restore possession of the land to the tenant as provided in
sub-section (1) he shall be liable to pay such compensation to the tenant as may be
determined by the Tahsildar for the loss suffered by the tenant on account of the eviction.
Explanation : For the purposes of this section, references to a protected tenant shall
include references to the heirs mentioned in the Explanation to section 40.
46. Application for recovery of possession by tenant : If at any time the tenant makes an
application to the Tahsildar and satisfies him that the landholder has failed to comply
within a reasonable time with the provision of Section 45, the protected tenant shall be
entitled on a direction by the Tahsildar to obtain immediate possession of the land to such
compensation as may be awarded by the Tahsildar for any loss caused to the tenant by his
eviction and by the failure of the landholder to restore or give possession of the land to
him as required by the said section.
9. A bare perusal of these provisions reveals that a tenant is entitled to the recovery of
possession in case the owner does not cultivate the land personally or having commenced
such cultivation discontinues the same within ten years. Section 2 (g) reads as under :
" "To cultivate personally" means to cultivate on one's own account -
(i) by one's own labour, or
(ii) by the labour of any member of one's family, or
(iii) by servants on wages payable in cash or kind, but not in crop share or by hired labour
under one's personal supervision, or the personal supervision of any member of one's
family.
It appears to be the conceded position that the personal cultivation that was allegedly
carried on by Dilawar Ali Khan and his successors does not fall under sub- clause (i) or
(ii) and the dispute pertains to the cultivation envisaged under sub-clause (iii). It is the
case of the land owners that they had been cultivating the land through Gopaiah and
Hanumaiah and were paying them wages in kind. Mrs. K. Amareswari, the learned Senior
Counsel, has contended that from the evidence on record including the statements of
Gopaiah and Hanumaiah both recorded on 24th January, 1974 it was clear that they had
cultivated the land on behalf of Dilawar Ali Khan on "Batai" basis i.e. on half share of the
produce almost from the date that Dilawar Ali Khan had taken possession of the land in
1967. It is therefore apparent that as the land was being cultivated by these two persons
by giving a share of the crop to the landowners, it would not amount to personal
cultivation. The clarificatory circular issued in 1951 is not applicable as it is nobody's
case that Gopaiah and Hanumaiah were also sharing the expenses of the cultivation.
Moreover this circular would not override the statutory provision 2(g)(iii) which was
incorporated in the Act in 1961. We are therefore,
@page-SC2276
of the opinion that the appellant must succeed on this basis. We accordingly set aside the
judgment and order of the High Court, and restore the order of the Joint Collector dated
16th June, 1977. No order as to costs.
Appeal allowed.
AIR 2008 SUPREME COURT 2276 "State of Punjab v. Bhajan Kaur"
Civil Appeal No. 3406 of 2008 [arising out of SLP (C) No. 12575 of 2008 {@ CC 1875
of 2008)], D/- 8 -5 -2008.
State of Punjab and Ors. v. Bhajan Kaur and Ors.
Motor Vehicles Act (59 of 1988), S.140 (as amended by Amending Act 54 of 1994) -
MOTOR VEHICLES - GENERAL CLAUSES - INTERPRETATION OF STATUTES -
AMENDMENT - S.140, as amended, providing for no fault liability to the extent of Rs.
50,000/- - Is not retrospective.
1992 (1) ACJ 192 (P and H) and 1990 (2) ACJ 751 (Ker.), Overruled.
General Clauses Act (10 of 1897), S.6.
Interpretation of Statutes, Retrospective legislation.
Section 140 as amended in 1994 providing sum of Rs. 50,000/- as no fault liability is not
retrospective. A statute is presumed to be prospective unless held to be retrospective,
either expressly or by necessary implication. A substantive law is presumed to be
prospective. It is one of the facets of rule of law. Section 140 of the 1988 Act does not
contain any procedural provisions so as to construe it to have retrospective effect. It
cannot enlarge any right. Rights of the parties are to be determined on the basis of the law
as it then stood, viz., before the new Act come into force. 1992 (1) ACJ 192 (P and H),
1990 (2) ACJ 751 (Ker.), Overruled. (Paras 16, 27, 28)
Moreover, Section 6 of the General Clauses Act inter alia saves a right accrued and/or a
liability incurred. It does not create a right. When Section 6 applies only an existing right
is saved thereby. The existing right of a party has to be determined on the basis of the
statute which was applicable and not under the new one. If a new Act confers a right, it
does so with prospective effect when it comes into force, unless expressly stated
otherwise. (Para 16)
Further, applying the principles of interpretation of statutes, the 1988 Act cannot be given
retrospective effect, more particularly, when it came into force on or about 1-7-1989.
(Para 13)
2007 (8) Scale 184 (Foll.) 24
2002 AIR SCW 773 : AIR 2002 SC 1045 24
1996 AIR SCW 3793 (Foll.) 19
1992 (1) ACJ 192 (PandH) (Overruled) 5, 11
1991 AIR SCW 2889 : AIR 1992 SC 180 27
1990 (2) ACJ 751 (Ker) (Overruled) 10
AIR 1987 SC 2158 (Ref.) 10
AIR 1987 SC 1727 (Foll.) 23
AIR 1985 SC 421 : 1985 Tax LR 353 (Foll.) 22
AIR 1975 SC 155 19
AIR 1957 SC 540 (Foll.) 18
K.K. Khurana, A.A.G., A.K. Mehta and Kuldip Singh, for Appellants; Ms. Meenakshi
Arora, for Respondents.
* F. A. O. No. 1004 of 1984, D/- 29-8-2007 (P and H)
Judgement
1. S. B. SINHA, J. :- Delay condoned.
2. Leave granted.
3. Whether Section 140 of the Motor Vehicles Act, 1988 (for short "the 1988 Act") will
have a retrospective effect is the question involved herein. 2
4. An accident took place on 8-01-1983. The deceased was a driver of a truck bearing No.
PUC 9005. It collided with a bus belonging to the appellant bearing registration No. PBL-
2310. It was being driven by one Sampuran Singh. A claim petition was filed in relation
to the said accident purported to be in terms of Section 110-A of the Motor Vehicles Act,
1939 (for short "the 1939 Act").
5. Appellants herein denied and disputed their liabilities. Several issues were framed by
the learned Tribunal. The said claim petition was dismissed by an award dated
12.10.1984.
@page-SC2277
A First Appeal was preferred by the respondent No. 1 against the said award dated 12-
10-1984. A learned Single Judge of the High Court disposed of the same awarding a sum
of Rs. 15,000/- by way of compensation by way of no fault liability. An Intracourt appeal
was preferred thereagainst. Relying on or on the basis of a decision of the said Court in
Mosmi and another v. Ram Kumar and others [1992 ACJ 192], it was held :
"In view of the authoritative pronouncement, this appeal is disposed of by holding that
the claimant would be entitled to a sum of Rs. 50,000/- (Rs. Fifty thousand only) under
"no fault liability". In addition thereto, they would also be entitled to interest @ 9% per
annum from the date of application till payment. However, in case, any amount was paid
to the claimant in view of the order dated 31-8-1993 passed by this Court, the same shall
be deducted out of this amount."
6. Before adverting to the questions raised in this appeal, we may notice that a statement
was made at the bar that the State is not interested in the matter but only intended to get
the law settled. We, therefore, did not issue any notice to the respondents and requested
Ms. Meenakshi Arora, learned counsel to assist us in the matter.
7. Section 92-A of the 1939 Act provided for payment of a sum of Rs. 15,000/- by way of
no fault liability. It was raised to Rs. 25,000/- by reason of Section 140 of the 1988 Act.
However, with effect from 14-11-1994, by Amending Act 54 of 1994, the quantum of the
amount payable has been raised to Rs. 50,000/-.
8. Indisputably, under the 1939 Act only a sum of Rs. 15,000/- was payable by way of no
fault liability.
The question which arises for consideration in this appeal is as to whether it has a
retrospective effect. In our opinion, it does not have.
9. A statute is presumed to be prospective unless held to be retrospective, either expressly
or by necessary implication. A substantive law is presumed to be prospective. It is one of
the facets of rule of law.
Section 92-A of the 1939 Act created a right and a liability on the owner of the vehicle. It
is a statutory liability. Per se it is not a tortuous liability. Where a right is created by an
enactment, in absence of a clear provision in the statute, it is not to be applied
retrospectively.
10. Ms. Arora, however, has drawn our attention to a decision of the Kerala High Court in
United India Insurance Co. Ltd. v. Padmavathy and others [1990 (2) ACJ 751]. The
Kerala High Court referred to a decision of this Court in M.K. Kunhimohammed v. P.A.
Ahmedkutty [AIR 1987 SC 2158] wherein the following observations were made :
"Having regard to the inflationary pressures and the consequent loss of purchasing power
of the rupee we feel that the amount of Rs. 15,000 and the amount of Rs. 7,500 in the
above provision appear to have become unrealistic. We, therefore, suggest that the limits
of compensation in respect of death and in respect of permanent disablement, payable in
the event of there being no proof of fault, should be raised adequately to meet the current
situation."
In Padmavathy (supra), the Kerala High Court held :
"11. The said suggestion of the Supreme Court was given due respect by the law-making
machinery when the Bill was finally introduced in Parliament. This fact can be discerned
from the Statement of Objects and Reasons prefaced in the new Act. Therefore, in effect,
Parliament has only retained the same right which was conferred on the victims, through
Chapter VIIA of the repealed Act. The difference in the quantum of compensation is only
intended to make the right realistic and on a par with the amount fixed earlier. Hence,
Section 6 of the General Clauses Act would not impede the enforcement of Section 140
of the new Act in relation to an accident which occurred prior to the coming into force of
the new Act.
12. For yet another reason, we can support the said conclusion. Section 6 of the General
Clauses Act permits switching over to the repealed Act only if a different intention does
not appear in the new statute. Such a different intention can be discerned from the new
Act. It is in Chapter X of the new Act that provisions regarding "no fault liability" have
been included. The Chapter" starts with Section 140 and ends with Section 144. The last
Section reads as follows : "The provisions of this Chapter shall have effect
notwithstanding anything contained in any other provision of this Act or of any other law
for the time being in force". The
@page-SC2278
different intention manifested in the new Act is that the provisions in Chapter X should
get predominance over all other laws. The provisions contained in that Chapter must be
given effect to notwithstanding any contrary provision in any other law including Section
6 of the General Clauses Act. All other provisions, therefore, must yield to the provisions
contained in Chapter X of the new Act. This is the legislative intention manifested
through Section 144 of the new Act."
11. In the decision of the Punjab and Haryana High Court in Mosmi (supra), reliance has
been placed upon the judgment of the Kerala High Court.
12. With the greatest of respect to the learned Judges of the Kerala and Punjab and
Haryana High Court, we could not persuade ourselves to agree with the said view.
13. No reason has been assigned as to why the 1988 Act should be held to be
retrospective in character. The rights and liabilities of the parties are determined when
cause of action for filing the claim petition arises. As indicated hereinbefore, the liability
under the Act is a statutory liability. The liability could, thus, be made retrospective only
by reason of a statute or statutory rules. It was required to be so stated expressly by the
Parliament.
Applying the principles of interpretation of statute, the 1988 Act cannot be given
retrospective effect, more particularly, when it came into force on or about 1-07-1989.
14. Reference to Section 6 of the General Clauses Act, in our opinion, is misplaced.
Section 217 of the 1988 Act contains the repeal and saving clause. Section 140 of the
1988 Act does not find place in various clauses contained in sub-section (2) of Section
217 of the 1988 Act. Sub-section (4) of Section 217 of the 1988 Act reads, thus :
"(4) The mention of particular matters in this section shall not be held to prejudice or
affect the general application of section 6 of the General Clauses Act, 1897 (10 of 1897)
with regard to the effect of repeals."
15. What is, therefore, otherwise saved in Section 6 of the General Clauses Act inter alia
is the right. It reads as under :
"6 Effect of repeal. - Where this Act, or any Central Act or Regulation made after the
commencement of this Act, repeals any enactment hitherto made or hereafter to be made,
then, unless a different intention appears, the repeal shall not -
(a) ***
(b) ***
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under
any enactment so repealed;..."
16. Section 6 of the General Clauses Act, therefore, inter alia saves a right accrued and/or
a liability incurred. It does not create a right. When Section 6 applies only an existing
right is saved thereby. The existing right of a party has to be determined on the basis of
the statute which was applicable and not under the new one. If a new Act confers a right,
it does so with prospective effect when it comes into force, unless expressly stated
otherwise.
Section 140 of the 1988 Act does not contain any procedural provision so as to construe it
to have retrospective effect. It cannot enlarge any right. Rights of the parties are to be
determined on the basis of the law as it then stood, viz., before the new Act come into
force.
17. It is now well-settled that a change in the substantive law, as opposed to adjective law,
would not affect the pending litigation unless the legislature has enacted otherwise, either
expressly or by necessary implication.
18
. In Garikapati v. Subbaiah Chowdhary [AIR 1957 SC 540], the law is stated, thus :
Para 25 of AIR
"...The golden rule of construction is that, in the absence of anything in the enactment to
show that it is to have retrospective operation, it cannot be so construed as to have the
effect of altering the law applicable to a claim in litigation at the time when the Act was
passed..."
19
. The question was considered by this Court in Gajraj Singh and others v. State Transport
Appellate Tribunal and others [(1997) 1 SCC 650] and the law was stated in the
following terms : 1996 AIR SCW 3793, Paras 23 to 25
"22. Whenever an Act is repealed it must be considered, except as to transactions past and
closed, as if it had never existed. The effect thereof is to obliterate the Act completely
from the record of Parliament as if it had never been passed; it never existed except for
the purpose of those actions which were commenced, prosecuted and concluded while it
was an existing law. Legal fiction is
@page-SC2279
one which is not an actual reality and which the law recognises and the court accepts as a
reality. Therefore, in case of legal fiction the court believes something to exist which in
reality does not exist. It is nothing but a presumption of the existence of the state of
affairs which in actuality is non-existent. The effect of such a legal fiction is that a
position which otherwise would not obtain is deemed to obtain under the circumstances.
Therefore, when Section 217(1) of the Act repealed Act 4 of 1939 w.e.f. 1-7-1989, the
law in Act 4 of 1939 in effect came to be non-existent except as regards the transactions,
past and closed or saved.
23. In Crawford's Interpretation of Law (1989) at p. 626, it is stated that :
"[A]n express repeal will operate to abrogate an existing law, unless there is some
indication to the contrary, such as a saving clause. Even existing rights and pending
litigation, both civil and criminal, may be affected although it is not an uncommon
practice to use the saving clause in order to preserve existing rights and to exempt
pending litigation."
At p. 627, it is stated that :
"[M]oreover, where a repealing clause expressly refers to a portion of a prior Act, the
remainder of such Act will not usually be repealed, as a presumption is raised that no
further repeal is necessary, unless there is irreconcilable inconsistency between them. In
like manner, if the repealing clause is by its terms confined to a particular Act, quoted by
title, it will not be extended to an act upon a different subject."
Section 6 of the GC Act enumerates, inter alia, that where the Act repeals any enactment,
unless a different intention appears, the repeal shall not (a) revive anything not in force or
existing at the time at which the repeal takes effect; or (b) affect the previous operation of
any enactment so repealed or anything duly done or suffered thereunder; or (c) affect any
right, privilege, obligation or liability acquired, accrued or incurred under any enactment
so repealed, and any such investigation, legal proceeding or remedy may be instituted,
continued or enforced. In India Tobacco Co. Ltd. v. CTO (SCC at p. 517) in paras 6 and
11, a Bench of three-Judge had held that repeal connotes abrogation and obliteration of
one statute by another from the statute-book as completely as if it had never been passed.
When an Act is repealed, it must be considered, except as to transactions past and closed,
as if it had never existed. Repeal is not a matter of mere form but is of substance,
depending on the intention of the legislature. If the intention indicated either expressly or
by necessary implication in the subsequent statute was to abrogate or wipe off the former
enactment wholly or in part, then it would be a case of total or pro tanto repeal. AIR
1975 SC 155, at p. 158
24. When there is a repeal and simultaneous re-enactment, Section 6 of the GC Act would
apply to such a case unless contrary intention can be gathered from the repealing Act.
Section 6 would be applicable in such cases unless the new legislation manifests intention
inconsistent with or contrary to the application of the section. Such incompatibility would
have to be ascertained from all relevant provisions of the new Act. Therefore, when the
repeal is followed by a fresh legislation on the same subject, the Court would
undoubtedly have to look to the provisions of the new Act only for the purpose of
determining whether the new Act indicates different intention. The object of repeal and
re-enactment is to obliterate the Repealed Act and to get rid of certain obsolete matters."
20
. In Ramesh Singh and another v. Cinta Devi and others [(1996) 3 SCC 142] it has clearly
been held that Section 217 of the 1988 Act does not expressly or by necessary implication
make the relevant provision retrospective in operation. 1996 AIR SCW 1661
21
. In Zile Singh v. State of Haryana [(2004) 8 SCC 1], a Three-Judge Bench of this Court,
stated the law, thus : 2004 AIR SCW 5842
"17. Maxwell states in his work on Interpretation of Statutes (12th Edn.) that the rule
against retrospective operation is a presumption only, and as such it "may be overcome,
not only by express words in the Act but also by circumstances sufficiently strong to
displace it" (p. 225). If the dominant intention of the legislature can be clearly and
doubtlessly spelt out, the inhibition contained in the rule against perpetuity becomes of
doubtful applicability as the "inhibition of the rule" is a matter of degree which would
"vary secundum materiam" (p. 226). Sometimes, where the sense of the statute
@page-SC2280
demands it or where there has been an obvious mistake in drafting, a court will be
prepared to substitute another word or phrase for that which actually appears in the text
of the Act (p. 231)."
22
. In Lohia Machines Ltd. and Anr. v. Union of India (UOI) and Ors. [(1985) 2 SCR 686],
this Court held : AIR 1985 SC 421, Para 81
"On the other hand it is quite clear that if the relief granted is to be withdrawn with
retrospective operation from 1972 the assessees who have enjoyed the relief for all those
years will have to face a very grave situation. The effect of the withdrawal of the relief
with retrospective operation will be to impose on the assessee a huge accumulated
financial burden for no fault of the assessee and this is bound to create a serious financial
problem for the assessee. Apart from the heavy financial burden which is likely to upset
the economy of the undertaking, the assessee will have to face other serious problems. On
the basis that the relief was legitimately and legally available to the assessee, the assessee
had proceeded to act and to arrange its affairs. If the relief granted is now permitted to be
withdrawn with retrospective operation, the assessee may be found guilty of violation of
provisions of other statutes and may be visited with penal consequences..." 14
23
. In M/s. Indian Metals and Ferro Alloys Ltd. and Anr. v. State of Orissa and Ors. [(1987)
3 SCC 189], it was opined : AIR 1987 SC 1727, Para 23
"25...we hold that the High Court was not right in observing that the orders under Section
22-B of the Act imposing restrictions on consumption of power could not legally and
validly be passed by the Government "with retrospective effect" in the middle of a water
year. But the position regarding disallowance of clubbing stands on an entirely different
footing. If a consumer had been allowed the benefit of clubbing previously, that benefit
cannot be taken away with retrospective effect thereby saddling him with heavy financial
burden in respect of the past period where he had drawn and consumed power on the faith
of the orders extending to him the benefit of clubbing..."
24. In Madishetti Bala Ramul (D) by L.Rs. v. The Land Acquisition Officer [2007 (8)
SCALE 184], this Court observed :
"19. In Land Acquisition Officer-cum-DSWO, A.P. v. B.V. Reddy and Sons, this Court
opined that Section 25 being not a procedural provision will have no retrospective effect,
holding : 2002 AIR SCW 773
6. Coming to the second question, it is a well-settled principle of construction that a

substantive provision cannot be retrospective in nature unless the provision itself
indicates the same. The amended provision of Section 25 nowhere indicates that the same
would have any retrospective effect. Consequently, therefore, it would apply to all
acquisitions made subsequent to 24-9-1984, the date on which Act 68 of 1984 came into
force. The Land Acquisition (Amendment) Bill of 1982 was introduced in Parliament on
30-4-1982 and came into operation with effect from 24-9-1984...."
25
. In Ashok Lanka and Anr. v. Rishi Dixit and Ors. [(2005) 5 SCC 598], this Court held :
2005 AIR SCW 2676, Para 64
"A statute must be read reasonably. A statute should not read in such a manner which
results in absurdity, A statute, on its plain language, although postulates a prospective
operation, it cannot be held, to be retrospective only because it would apply for the excise
year for which applications were invited despite the fact that the selection process made
thereunder is over."
26. The Kerala and Punjab and Haryana High Courts proceeded on the basis that Section
6 of the General Clauses Act will apply. If the same applies, it would not affect any right,
privilege, obligation or liability acquired, accrued or incurred under any enactment so
repealed. If that be so, the old Act shall apply and not the new one. Construction of a
repeal and saving clause vis-a-vis the statute providing for continuation of orders, etc.
must be given the meaning which can be culled out from the statute in question.
27
. In Southern Petrochemical Industries Co. Ltd. v. Electricity Inspector and ETIO and
others [(2007) 5 SCC 447], this Court held : 2007 AIR SCW 3752
"106. Furthermore, exemption from payment of tax in favour of the appellants herein
would also constitute a right or privilege. The expression "privilege" has a wider meaning
than right. A right may be a vested right or an accured right or an acquired right. Nature
of such a right would depend upon and 1991 AIR SCW 2889
@page-SC2281
also vary from statute to statute. It has been so held by this Court, while construing
Section 6 of the General Clauses Act, in M/s. Gurcharan Singh Baldev Singh v. Yashwant
Singh and others [(1992) 1 SCC 428] in the following terms :
".. .The objective of the provision is to ensure protection of any right or privilege
acquired under the repealed Act. The only exception to it is legislative intention to the
contrary. That is, the repealing Act may expressly provide or it may impliedly provide
against continuance of such right, obligation or liability..."
We, therefore, are clearly of the opinion that the 1988 Act does not have any retrospective
operation.
28. For the reasons aforementioned, the decisions of Kerala and Punjab and Haryana
High Courts do not lay down a good law. They are overruled accordingly. However, as
the State has not asked for any relief against the respondents, this appeal is dismissed. No
costs.
Appeal dismissed.
AIR 2008 SUPREME COURT 2281 "Sapna v. United India Insurance Co. Ltd."
(From : AIR 2006 (NOC) 798 (Utr) : 2006 AIHC 2231)
-2008.
Sapna v. United India Insurance Co. Ltd. and Anr.
Motor Vehicles Act (59 of 1988), S.168 - MOTOR VEHICLES - Accident compensation
- Injured, girl of 12 years - Permanent disability suffered - Fact that she would remain
crippled throughout life - Would have no enjoyment for life - Ought to be considered -
Requirement of any future medical treatment - Also to be considered - Considering her
income as Rs. 15,000/-p.a. and applying multiplier of 15 - Injured held, entitled to Rs.
2,25,000/- - Further sum of Rs. 75,000/- awarded for future medical treatment. (Paras
11, 13, 14)
2003 AIR SCW 1266 : AIR 2003 SC 1817 (Ref.) 12
2002 AIR SCW 5348 : AIR 2003 SC 674 : 2003 AIR - Kant HCR 242 (Ref.) 12
AIR 1977 SC 1189 (Ref.) 15
Ashwani Garg, Vijay Kumar, Ms. Sangeeta Kumar, Mendi Imam and Tarrez Khan, for
Appellant; Atul Nanda, Ms. Rameeza Hakeem, Rajesh Kumar and Sandeep Bajaj (for
M/s. Law Associates and Co.), for Respondents.
Judgement
2. What should be the fair and adequate compensation for permanent disability suffered
by a 12 years' girl in an accident involving a motor vehicle is the question involved
herein. On 3-9-1999, at about 10.00 a.m., Sapna, while going to a temple, was hit by a
'jeep', used as a taxi. She was dragged along with the jeep to a distance of about 15-20
feet. She suffered compound fracture of left knee and dislocation of Patellae/bone of left,
knee and skin and muscles above and below came out and veins got cut and knee got
completely damaged and bones of left leg became bare due to tearing of skin and flesh
and left leg bent at 90 degree at knee as a result whereof she has become crippled and
completely disabled to walk. The skin of right leg from thigh to ankle was also peeled off
resulting in serious wounds.
3. She was taken to a hospital and admitted as an inpatient therein for about 25 days. A
sum of Rs. 45,000/- were expended for her treatment till that-day. It is stated that she is
still required to undergo treatment from the aforementioned hospital.
4. A claim petition was filed praying for grant of compensation for a sum of Rs.
6,45,000/-. The learned Tribunal passed an award of Rs. 82,569/- together with 8%
simple interest thereupon.
5. Aggrieved thereby, the appellant preferred an appeal. By reason of the impugned
judgment, the High Court has enhanced the amount of compensation to Rs. 2,00,000/-but
reduced the rate of interest to 6% from 8% p.a.
6. Mr. Garg, learned counsel appearing on behalf of the appellant, submits that the
Tribunal as also the High Court committed a serious error in passing the impugned
awards insofar as they failed to take into consideration that having regard to the nature of
injuries suffered by the appellant in the said accident, not only her education has come to
an end but also her future matrimonial prospect are also adversely affected and, thus, she
was entitled to a higher
@page-SC2282
amount of compensation. She being completely dependent upon her parents, the Tribunal
as also the High Court should have, while determining the amount of compensation,
considered that even for the purpose of future treatment, a sum of Rs. 1,50,000/ would be
required. It was urged that considering the provisions contained in the Second Schedule
to the Motor Vehicles Act and furthermore having regard to the mental agony suffered by
the appellant, this Court should enhance the amount of compensation.
7. Mr. Nanda, learned counsel appearing on behalf of the respondent, on the other hand,
would submit that the loss has to be determined as on the date of the accident; even the
amount of future treatment should be determined as on the date of the award. Appellant,
admittedly, did not have any income and in that view of the matter the award of the
Tribunal and the High Court should not be interfered with.
8. The principles governing a claim petition for assessing the damages in case of bodily
injury suffered is that while awarding the compensation, the Tribunal should consider all
relevant factors so as to enable the insured to be put in the same position as if he had not
sustained any injury. The principle of Restitutio-in-integrum may be applied in a case of
nature. Pecuniary loss and non-pecuniary loss are required to be pressed under certain
heads. So far as the pecuniary loss is concerned, the same can be ascertained. What is
required to be done is a balancing act by awarding such sum which, on the one hand,
shall take care of the loss suffered by the claimant for the present time and future
pecuniary benefits and, on the other, pecuniary advantages which from whatever source
comes to them by reason of such injuries. So far as non-pecuniary loss is concerned, the
same has to be assessed broadly under certain heads, namely, damages for physical pain,
mental suffering etc. besides the amount spent on medical treatment, if any.
9. Expenditure for medical treatment has been granted. The High Court, in its judgment,
noticed that although the Tribunal had referred to the likely effect on the matrimonial
prospects of the appellant on account of permanent disability, due regard in that behalf
had not been given.
The High Court opined :
"Considering the age of the claimant Km. Sapna at the time of the accident; the nature of
the injuries and the fractures suffered by her in the accident; the extent of permanent
disability suffered by her in left leg on account of the injuries sustained in the accident;
the amount of physical pain and mental suffering she must have suffered during the
period she remained hospitalised and her left leg was under plaster; the fact that the
permanent disability to the extent of 90% in her left leg is bound to affect adversely her
matrimonial prospects and that for rest of her life she would remain crippled and in view
of the guidelines laid down by the Apex Court in the above quoted dicta, we are of the
opinion that a lump sum of Rs.2,00,000/- (Rupees Two Lakhs only) would be just and
proper compensation to the claimant for the injuries suffered by her in the accident, the
amount spent on treatment, physical pain and mental suffering, loss of future earning
capacity and other permissible heads."
10. No reason has been assigned in support thereof. In arriving at the said figure, only
loss of matrimonial prospect has been taken into consideration. The fact that she would
remain crippled throughout her life was also noticed but it does not appear that any
serious consideration was bestowed thereupon.
11. The principle that is to be applied in a case of this nature that the amount of
compensation should be just and fair is not in dispute. What would, however, be just and
fair amount of compensation is required to be determined having regard to the facts and
circumstances of the case involved. In given cases, the Courts may deviate from the
structured formula. In terms of the Second Schedule, where the deceased or injured were
not having any income, the statute presumes an income of or about 15,000/-per month. If
having regard to the age of the appellant, the multiplier of 15 is applied, a sum of Rs.
2,25,000/- would be payable. Besides the said sum, not only some amount of
compensation should be awarded under the heading of mental agony but also some
provision should be made for future treatment.
12
. In Abati Bezbaruah v. Dy. Director General, Geological Survey of India and Anr.
((2003) 3 SCC 148) it was held : 2003 AIR SCW 1266, Para 11
"11. It is now a well-settled principle of

@page-SC2283
law that the payment of compensation on the basis of structured formula as provided for
under the Second Schedule should not ordinarily be deviated from. Section 168 of the
Motor Vehicles Act lays down the guidelines for determination of the amount of
compensation in terms of Section 166 thereof. Deviation from the structured formula,
however, as has been held by this Court, may be resorted to in exceptional cases.
Furthermore, the amount of compensation should be just and fair in the facts and
circumstances of each case."
We may also notice a decision in Nagappa v. Gurudayal Singh and Ors. {(2003) 2 SCC
274) wherein a Three Judge Bench of this Court opined that the law does not permit
passing of any further award after the final award was passed, stating : 2002 AIR
SCW 5348, (Para 23)
Therefore, in a case where injury to a victim requires periodical medical expenses, fresh
award cannot be passed or previous award cannot be reviewed when the medical
expenses are incurred after finalization of the compensation proceedings. Hence, the only
alternative is that at the time of passing of final award, the Tribunal/Court should
consider such eventuality and fix compensation accordingly. No one can suggest that it is
improper to take into account expenditure genuinely and reasonably required to be
incurred for future medical expenses. Future medical expenses required to be incurred
can be determined only on the basis of fair guesswork after taking into account increase
in the cost of medical treatment."
13. What would be the genuine and reasonable expenditure likely to be incurred by the
appellant towards her future treatment is not borne out from the records. It would require
serious consideration for the purpose of award of damages. When a person becomes
completely incapable to do any work and virtually has no enjoyment for life, the same
form relevant factors and, thus, requires consideration for the purpose of determining a
fair and reasonable amount of compensation.
14. It has not been disputed that future treatment for the appellant would be necessary. If
future treatment is necessary, some provision should be made therefor. In absence of any
clear cut estimate, we are inclined to award a further some of Rs. 75,000/- under the said
head. She may require another operation. She may require to be provided with an
artificial limb. We, direct accordingly.
15
. Similar question came up for consideration in Madhya Pradesh State Road Transport
Corporation Bairagarh, Bhopal v. Sudhakar and Ors. (AIR 1977 SC 1189) wherein this
Court held : Para 5
"The other appeal (C. A. No. 2255 of 1968) relates to the injury sustained by a boy aged
about four years. He suffered compound fracture of his right tibia and fibula lower third
near the ankle joint with infection of the wound, skin-grafting had to be done and the boy
had to remain in hospital from June 25 to August 4, 1961. According to the doctor who
examined him, the child was likely to develop a permanent limp which might require
another operation at the age of 16 years or so. In any case, in the opinion of the doctor the
deformity was certain to persist till the boy was 16 years when another operation might
remove it. The tribunal awarded Rs. 10,000/- as general damages and Rs. 890/- as special
damages. The High Court increased the general damages to Rs. 20,000/-. It appears from
the evidence that the boy comes from a well-to-do family. Though the possibility was
there of the deformity being removed by surgical operation when he grew up to be 16
years, the other possibility cannot be altogether ruled out. That being the position, we are
not inclined to interfere with the sum awarded by the High Court."
16. Out of the aforementioned amount, if not already distributed, the Tribunal shall invest
a sum of Rs. 2,00,000/- in a fixed deposit till she attains majority. As and when any
amount is required for her treatment or for other expenditure, the sum may be released.
The learned Tribunal, however, shall be at liberty to pass such other order or orders if and
when found necessary therefor.
17. The appeal is allowed to the aforementioned extent with no order as to costs.
Order accordingly.
@page-SC2284
AIR 2008 SUPREME COURT 2284 "Shelkhar Hotels Gulmohar Enclave, M/s. v. State
of U. P."
(From : Allahabad)*
-2008.
M/s. Shelkhar Hotels Gulmohar Enclave and Anr v. State of U.P. and Ors.
Land Acquisition Act (1 of 1894), S.5A, S.17 - ACQUISITION OF LAND - PLANNING
AND DEVELOPMENT - NATIONAL HIGHWAY - Invocation of urgency clause -
Validity - Land sought to be acquired for removal of traffic congestion - Master Plan
already prepared and approved by Planning Board - Sum already sanctioned for
development of Transportnagar and widening of National Highway into 4 lanes - In facts
invoking powers u/S.17(4) read with S.5A dispensing with objections - Cannot be said to
be arbitrary or improper exercise of power. (Paras 4, 5)
1996 AIR SCW 4334 : AIR 1997 SC 170 (Ref.) 4
1993 AIR SCW 1163 (Ref.) 4
R.K. Khanna, Sr. Advocate, Neeraj D. Gaur, Piyush Sharma, S.S. Nehra and Dr. I.R.
Gaur, for Appellants; Shall Kr. Dwivedi, A.A.G., Subodh Markandey, Sr. Advocate; G.
Sheshagirl Rao, Ms. Chitra Markandeya, Kamlendra Mishra, Aarohi Bhalla and Gunnam
Venkateswara Rao, for Respondents.
* C. M. W. P. No. 65687 of 2006, D/-06-12-2006 (All).
Judgement
2. This appeal is directed against the order dated 6-12-2006 passed by the Division Bench
of the Allahabad High Court whereby the High Court affirmed the notification dated 15-
6-2006 issued under Section 4(1) read with Section 17(1) and 17(4) of the Land
Acquisition Act (hereinafter referred to as 'the Act') and the notification dated 19-10-2006
issued under Section 6 of the Act. A preliminary objection was raised before the High
Court on behalf of the respondent-Bulandshahr-Khurja Development Authority,
Bulandshahr that the writ petition was not maintainable at the instance of the appellants
and secondly it was contended that the writ petition was bereft of basic pleadings with
regard to the challenge of dispensing with Section 5-A of the Act.
3. The first question which was agitated before the High Court was that dispensing with
requirement of Section 5-A of the Act was arbitrary. The Division Bench of the High
Court after referring to couple of decisions of this Court took the view that the urgency
shown for invoking Section 5-A was Justified as it was necessary to remove the traffic
congestion. It was also found that there was no co-relation between the argument and the
pleadings contained in the writ petition. The High Court found that there was no infirmity
in the impugned notifications. Hence this appeal on grant of special leave.
4
. We have heard learned counsel for the parties and perused the record. Before we address
to the main issue it will be relevant to mention a few facts. Respondent No. 3-
Bulandshahr Khurja Development Authority, Bulandshahr (hereinafter to be referred to as
the Development Authority) in its 25th Board meeting held on 3-5-2002 decided to
establish at the present site, "Transport Nagar" abutting to the National Highway No. 91.
Under the regional plan of the National Capital Regional Planning Board (hereinafter to
be referred to as the Board) National Highway No. 91 is proposed to be made a four lane
road. Out of the plots described in the paper-book, plot Nos. 424, 424-M, 430, 443, 449M
and 492 are not under acquisition under notification dated 10-7-2006. Plot No. 428-M
was purchased by M/s. Allied Construction under sale deed dated 5-12-2003, plot No.
429 was purchased by Krishan Kumar son of Shankar Lal vide sale deed dated 18-9-
2003, plot No. 442 was purchased by Smt. Asha under sale deed dated 18-9-2003. Plot
No. 430 was purchased by Vipul Kaushik and Vinay Kaushik both minors. Plot No. 449
was purchased by Chandrasekhar, Naresh Kumar and Kishan Kumar under sale deed
dated 18-9-2002 and Plot No. 450 was purchased by the same vendees under two sale
deeds dated 18-9-2003 and 12-2-2004. Same was the case with regard to Plot No. 478. It
was contended that all these plots were purchased after the resolution was passed by the
Board to set up the Transport Nagar. None of the plots were recorded either in the name
of M/s. Sheikhar Hotels or Shri Chandrasekhar Sharma, the appellants herein. Therefore,
a preliminary objection was raised on behalf of the respondents before 2004 AIR
SCW 5081
1993 AIR SCW 1163
1996 AIR SCW 4334
1996 AIR SCW 4334, (Para 8)
@page-SC2285
the High Court that the writ petition was not maintainable at the instance of the writ
petitioner-appellants, who not being the owners of the plot, cannot file the objection
under Section 5-A of the Act. It was also pointed out that the U. P. Urban Planning and
Development Act, 1973 (hereinafter to be referred to as 'the Development Act') had come
into force on 12-6-1973 with the object of development of certain areas. A Master Plan
was prepared under the Development Act and after the same was published and
objections and suggestions were invited. Thereafter, the Master Plan was finalized. In the
said Master Plan this area was earmarked for the Transport Nagar. At present the State
Road Transport Bus Terminal is situated in the thickly populated area and there is really
traffic congestion. The Master Plan contemplated acquisition of total area of 501.58
hectares of land for the integrated plan for the purpose of alleviation of all the traffic
problems inter alia by constructing the Transport Nagar new Bus Stand at Delhi-Khureja
and Shikarpur Roads and widening of the roads. For the purpose of establishing Transport
Nagar the National Capital Regional Planning Board (hereinafter to be referred to as the
Board) sanctioned a loan of Rs. 20.65 crores to the Development Authority for
construction. But because of the litigation it could not proceed further and the Board is
incurring heavy interest. It was contended that compensation to the tune of Rs. 17.42
crores have already been spent. It was also pointed out that the Parliament has enacted the
National Capital Region Planning Board Act (Act 11 of 1985) which came into force on
9-2-1985. The aim of this Act is for providing common plan for National Capital Region,
which includes the District Bulandshahr of State of Uttar Pradesh. This Act of 1985 was
passed by resolutions of the States of Haryana, Rajasthan and Uttar Pradesh under Article
256 of the Constitution. Therefore, in order to have the development of the said region of
the Capital Region a Corporate Body has been constituted with the Union Minister for
Urban Development as the Chairperson and the Chief Ministers of Haryana, Rajasthan
and Uttar Pradesh and Lt. Governor of Delhi as its members. Therefore, for the
development of the National Capital Region such project has been undertaken and this
Planning Body has already sanctioned the aforesaid amount. In pursuance of this exercise
the aforesaid notification was issued dispensing with the requirement of Section 5-A of
the Act for filing of objection as there was an urgent need of decongesting the traffic
problem and to make the smooth traffic flow in the National Capital Region area also.
Therefore, Section 5-A of the Act was dispensed with. Learned senior counsel for the
appellants submitted that dispensation of Section 5-A of the Act in the present situation
was not proper and there was no proper application of mind. In support of that learned
senior counsel invited our attention to a decision of this Court in Union of India and Ors.
v. Mukesh Hans ((2004) 8 SCC 14). As against this, learned senior counsel for the
respondents invited our attention to a decision of this Court in Rajasthan Housing Board
and Ors. v. Shri Kishan and Ors. ((1993) 2 SCC 84) and another decision in Union of
India and Ors. v. Praveen Gupta and Ors. ((1997) 9 SCC 78). There is no gainsaying in
the fact that this right to file objection under Section 5-A is a valuable right and the
Governments are not given a free hand to dispense with Section 5-A. Section 5-A is only
a safeguard against the arbitrary exercise of the power by the State. But one should also
not lose sight of the fact that invocation of such a provision is also sometimes imperative
as in order to meet the urgency of the situation it needs to be invoked in public interest. It
depends upon case to case. Sometimes it may not be necessary at all and the State
functionaries may sometime out of overjealousness may invoke this provision which
would seriously jeopardize the interest of the people. Therefore, it depends upon case to
case where in a given situation Section 5-A has been correctly invoked and the authorities
were satisfied in an objective manner. In the present case, there is no two opinion that
because of the globalization of economy Indian economy is progressing with fast speed,
therefore in order to keep pace with the speed, invocation of Section 5-A has become
imperative. Traffic congestion is a common experience of one and all and it is very
difficult to negotiate with the traffic congestion in Delhi and National Capital region.
Therefore, in the present situation, it cannot be said that the invocation of Section 5-A
was for ulterior purpose or was arbitrary exercise of the power.Since the Master Plan has
@page-SC2286
already been prepared and it has been approved by the Planning Board and they have
sanctioned a sum of Rs. 20.65 crores for the development of this Transport Nagar and
widening of the National Highway No. 91 into four lanes. Therefore, the proposal was
approved by the Board and it got the sanction from the National Capital Region Planning
Boardand ultimately the Government invoked the power under Section 17(4) read with
Section 5-A of the Act dispensing with the objections. In the light of these facts it cannot
be said that invoking of power was in any way improper exercise. There is need for
decongestion of the traffic and it is really the dire need of the hour and earliest it is
implemented, better for the people at large. In this connection learned senior counsel for
the appellants invited our attention to the decision of this Court in Union of India and
Ors. (supra) have held that Section 5-A is not an empty formality but it is a substantive
right which can be taken away only for good and valid reason and within the limitations
prescribed under Section 17(4) of the Act. But in the present case the notification was
struck down on the facts that no material was placed on record and secondly, it was also
held that discontinuance of festival for want of land and any hindrance in using the land
was not there. It was also pointed out that earlier an attempt was made to acquire the land
for the very same purpose for holding such festival and it was allowed to lapse by efflux
of time and consequently the Court found that there was no reference in the file to the
need of invoking Section 17(4) and therefore, in a given situation. Their Lordships held
that invocation of Section 17(4) of the Act was vitiated by non-application of mind by the
authorities. Therefore, this case was decided on the question of fact. As against this,
learned senior counsel for the respondents submitted that traffic congestion has been
recognized by this Court in Union of India and Ors. v. Praveen Gupta and Ors. (supra) as
urgent need. In this case, land was acquired in order to shift the timber business from the
walled city of Old Delhi as it had become the source of traffic congestion. Therefore, it
was required to be urgently shifted from the existing place to relieve the congestion by
acquiring the concerned land for the public purpose, namely, for establishment of timber
depot. In that context, their Lordships held as follows :
"Since the acquisition is for shifting of timber business from the walled city to the
outskirts of the city, shifting itself is for urgent purpose, viz., to relieve the traffic
congestion in the walled city. Under those circumstances, the exercise of power under
Section 17(4) cannot be said to be unwarranted in this case."
Similarly, in Rajasthan Housing Board and Ors. (supra) the question was with regard to
acquisition of waste and arable land for housing purpose. It was observed that
Government's satisfaction regarding, being subjective, when there is material upon which
it could have been formed fairly, Court would not interfere nor would it examine the
material as an appellate authority to see existence of urgency. The proposed acquisition
for urban housing for weaker section and middle income group of people by Housing
Board where there is a great scarcity of house was held to be good purpose for invoking
Section 17(4) dispensing with the objection under Section 5-A. Therefore, such
invocation of Section 5-A was upheld by this Court.
5. Now, reverting to the facts of this case also as pointed out above, this acquisition was
made under the Master Plan prepared under the U. P. Urban Planning and Development
Act and the same got approval of the National Capital Region Planning Board and loan
was sanctioned by the Board and out of which Rs. 17.42 crores have already been spent.
In this given case, we are of opinion that invocation of Section 17(4) read with Section 5-
A of the Act was well warranted and we see no reason to interfere with the order passed
by the Division Bench of the High Court. Consequently, the appeal is dismissed with no
order as to costs.
Appeal dismissed.
AIR 2008 SUPREME COURT 2286 "Union of India v. Ranbaxy Laboratories Ltd."
(From : Delhi)*
-2008.
Union of India v. M/s. Ranbaxy Laboratories Ltd. and Ors.
Essential Commodities Act (10 of 1955), S.3 - Drugs (Price Control) Order (1955), Para
25 - ESSENTIAL COMMODITIES - DRUGS, COSMETICS AND MAGIC REMEDIES
- INTERPRETATION OF STATUTES -
@page-SC2287
Price exemption to bulk drag - Exemption granted to drug manufactured up to certain
date - Cannot mean drug manufactured and sold by that date - Notification has to be
given purposive construction.
Interpretation of Statutes - Exemption notification - Purposive construction.
The price exemption granted to drug manufactured up to certain date cannot mean that
from the next date the drug has to be sold at the retail price fixed by control order. The
exemption cannot mean drug manufactured and sold by the date of exemption. The
exemption granted is in respect of a drug manufactured by a company. What is marketed
for sale is the drug manufactured. Manufacture of a drug is controlled by a different
statute, namely the Drug and Cosmetics Act, 1940. Process of marketing the drug as also
the maximum price which can be charged have direct relation with manufacture and also
the date thereof. The wrapper/foil/containers in which the drug is marketed contains
several information for the general public; one of them being the date of manufacture and
the retail price. Various other informations are also required to be furnished. The Court
while construing an exemption notification cannot lose sight of the ground realities
including the process of marketing and sale. While construing an exemption notification
not only a pragmatic view is required to be taken but also the practical aspect of it. A
manufacturer would not know as to when the drug would be sold. It has no control over
it. Its control over the drug would end when it is dispatched to the distributor. The
manufacturer cannot supervise or oversee as to how others would be dealing with its
product. All statutes have to be considered in light of the object and purport of the Act.
(Paras 23, 24, 25, 27)
2008 AIR SCW 208 : AIR 2008 SC 876 : 2008 (2) AIR Bom R 45 (Rel. on) 27
2007 AIR SCW 3734 : AIR 2007 SC 1971 27
AIR 1978 SC 1296 : 1978 Cri LJ 1281 (Disting.) 25
D. Mohta, D.S. Mahra, V.K. Verma, for Appellant ; S. Ganesh, Sr. Advocate, Ashutosh
Khaitan, Ms. Tania Sharma, Umesh Kumar Khaitan, U.A. Rana, Abhishek Rao, M/s.
Gagrat and Co., for Respondents.
* L. P. A. No. 675 of 2004, D/-19-12-2005 (Delhi).
Judgement
2. First respondent is a pharmaceutical company and is engaged in the manufacture of the
bulk drug including Pentazocine in the formulation of Pentazocine injection with brand
name 'Fortwin'. Sale and marketing of the said drug is controlled by the Drugs (Price
Control) Order, 1995 (1995 Order). The said order was made by the Central Government
in exercise of its powers under Section 3 of the Essential Commodities Act, 1955 (1955
Act). We may notice some interpretation clauses contained in the 1955 Act, which are as
under :-
"2.(a) "bulk drug" means any pharmaceutical, chemical, biological or plant product.
including its salts, esters, stereo-isomers and derivatives, conforming to pharmacopoeia
or other standards specified in the Second Schedule to the Drugs and Cosmetics Act,
1940 (23 of 1940), and which is used as such or as an ingredient in any formulation;
2.(c) "ceiling price" means a price fixed by the Government for scheduled formulation in
accordance with the provisions of para. 9.
2(f) "drug" includes -
(i) and (ii)........................
(iii) bulk drugs and formulations;
2(1) "manufacture" in relation to any drug, includes any process or part of a process for
making, altering, finishing, packing, labelling, breaking or otherwise treating or adapting
any drugs with a view to its sale and distribution, but does not include the compounding
or dispensing of any drug or the packing of any drug in the ordinary course of retail
business, and "to manufacture" shall be construed accordingly;
2(r) "price list" means a price list referred to in paragraphs 14 and 15 and includes a
supplementary price list;
2(s) "retail price" means the retail price of a drug arrived at or fixed in accordance with
the provisions of this Order and includes a ceiling price;"
3. The drug in question is one of the scheduled bulk drugs being at Sl. No. 43 in the First
Schedule.
@page-SC2288
4. The Central Government in exercise of its powers conferred upon it by paragraph 23 of
the 1995 Order issued guidelines for the purpose of grant of exemption in terms of
paragraph 25 specifying that a manufacturer who had been given the benefit of price
exemption for bulk drug should submit an application in prescribed forms for fixation of
price thereof and formulation four months before the expiry of the period of the
exemption. It was furthermore stipulated :-
"However, if there is an existing notified price for bulk drug or ceiling price for
formulations, the manufacturer shall follow the same on the expiry of the exemption and
obtain price approval for non-ceiling packs of formulation (s) based on that bulk drug."
5. A similar provision has been made for grant of exemptions in respect of New Delivery
System, in terms whereof a manufacturer is required, where there is an existing notified
price, to follow the same on the expiry of the exemption.
6. The exemption granted in favour of the first respondent had expired on 31st October,
1999.
First respondent was asked to show cause as to why an amount of Rs. 2,59,76,070/-
should not be recovered from it and why action should not be taken under paragraphs 21
and 24 of 1995 Order read with Section 10 of the 1955 Act, by a notice dated 29th April,
2002. In response thereto the first respondent inter alia contended that it had not
overcharged price from any customer and no amount towards any alleged over charge
was payable by it. It was furthermore contended that the company had furnished all the
informations, as and when asked for by the prescribed authorities of the appellant.
7. As the said reply was found to be unsatisfactory, the first respondent was asked to
deposit the alleged overcharged amount with interest @ 15% per annum as provided
under Section 7A of the 1955 Act.
8. A writ petition was filed for setting aside the said order by the first respondent before
the Delhi High Court. The said writ petition was dismissed by a learned Single Judge of
the said High Court by an order dated 20th May, 2004.
9. A Letters Patent Appeal was filed there-against which has been allowed by a Division
Bench of the said Court by reason of the impugned judgment and order dated 19th
December, 2005.
The High Court opined that the exemption Notification dated 29th August, 1995 clearly
shows that the same related to drugs manufactured by 31st October, 1999 and thus the
same would apply even if the drugs have been sold after the said date.
10. Mr. Gopal Subramaniam, learned Additional Solicitor General of India appearing on
behalf of the appellant, would submit :-
i) That the High Court committed a serious error in passing the impugned judgment
insofar as it failed to take into consideration that 1995 Order is concerned with
distribution and not manufacture.
ii) An exemption Notification must be strictly construed and so construed, it must be held
that no benefit could be claimed by the first respondent beyond the period of 31st
October, 1999 as by reason of the said exemption Notification it was at liberty to sell the
drug at any price and not at the stipulated one and thus, as soon as the period of
exemption expired, the price provided for under the 1999 Order was required to be
charged.
iii) As a manufacturer the first respondent could sell its products but the exemption being
in regard to sale only and not to manufacture, the impugned judgment cannot be
sustained.
11. Mr. S. Ganesh, learned Senior Counsel, appearing on behalf of the first respondent,
on the other hand, would submit that exemption Notification must be given a purposive
meaning.
12. Admittedly the drug in question is an 'essential commodity' within the meaning of the
provisions of 1955 Act.
13. Section 3(2)(c) of 1955 Act empowers the Central Government to make an order
providing for controlling the price at which the essential commodity may be bought or
sold.
14. Exemption clause contained in paragraph 25 of the 1995 Order vis-a-vis the
Notification dated 29th August, 1995 must be construed having regard to the object and
purport thereof. The package or container of a scheduled drug contains details not only of
the maximum retail price but also the date of manufacture. The price fixed in terms of
paragraph 9 of the 1995 Order is to be the ceiling price. Paragraph 3(1) of Order
empowers
@page-SC2289
powers fixing of the maximum sale price at which the same can be sold. The factors
which were required to be considered therefor, however, are not required to be noticed.
15. In terms of clause 3 of paragraph 3 of 1995 Order, a statutory prohibition had been
created in terms whereof nobody could sell the bulk price exceeding the maximum sale
price fixed under paragraph 1. Clause 2 of paragraph 8 empowers the authority to fix the
retail price of scheduled formulations in terms whereof revision in the price is
permissible.
16. Clause 6 of paragraph 8 of 1995 Order reads as under :-
(6) No manufacturer or importer shall market a new pack, if not covered under sub-
paragraph 3 of para 9, or a new formulation or a new dosage form of his existing
scheduled formulation without obtaining the prior approval of its price from the
Government.
Thus, what is prohibited is market of a new pack without obtaining the prior approval of
its price from the Government.
Paragraph 9 empowers the authority to fix ceiling price of scheduled formulations.
Paragraph 23 provides for the power of the Central Government to issue guidelines and
directions. Such guidelines and directions, however, must be consistent with the
provisions of the Order.
17. What is, thus, necessary to be taken into consideration is provision providing for the
power of exemption and the notification issued therefor by the Central Government. The
power of exemption is contained in clause 25 of the Order, which reads as under :-
"25. Power to exempt. - (1) Government may, having regard to the factors mentioned in
sub-paragraph (2) and subject to such conditions as it may specify by an order in the
Official Gazette, exempt any manufacturer from the operation of all or any of the
provisions of this Order.
(2) While granting exemption under sub-paragraph (1), the Government shall have regard
to all or any of the following factors, -
(a) number of workers employed;
(b) amount of capital invested;
(c) range/group and type of products manufactured;
a) sales turnover;
b)......
c) production of a new drug which has not been produced elsewhere, if developed
through indigenous research and development."
18. The exemption Notification dated 29th August, 1995, reads thus :-
"ORDER
S. O. No. 7153(E), in exercise of the powers conferred by sub-paragraph (1) of Paragraph
25 of the Drugs (Price Control) Order, 1995, the Central Government having regard to
the factors specified in the clause (e) of sub-paragraph (2) of paragraph 25 of the said
order and also having been satisfied for the need to do so in the public interest hereby
exempts the bulk drug and formulations based thereupon specified in column 2 of the
Table below which is manufactured by the company specified in the corresponding entry
in column 3 from the operation of price control stipulated in sub-paragraph (1) of
paragraph 3, sub-paragraph (1) of paragraph 8 and sub-paragraph (1) of paragraph 9 of
the said order, up to the period as indicated in column 4 thereof.
S. No. Name of the Product Name of the Company Period upto which the
exemption is granted
1 2 3 4
1 Pentazocine and its formulations M/s. Ranbaxy Laboratories Ltd. 31-10-
1999
19. For issuance of an exemption notification,

Sd/-
(K. Mulalidharan)
Desk Officer"
@page-SC2290
the Central Government is required to apply its mind. The factors which are relevant,
must be taken into consideration as provided for under paragraph 2 of clause 25 of the
Order.
20. The relevant considerations inter alia are the sales turnover as also production of a
new drug which was not produced elsewhere, if developed through indigenous research
and development.
21. Pentazocine is used for a patient suffering from traumatic pain. The Central
Government must be held to have applied its mind before issuing the exemption
notification.
22. What must have been taken into consideration for grant of exemption is as to whether
respondent No. 1 fulfilled the requisite criteria. The area of exemption is from the
operation of the price control. Such exemption admittedly had been granted up to 31st
October, 1999. Undisputedly the Central Government had the power to extend the period
of exemption with or without condition. It could have granted further exemption subject
to any condition.
23. The short question which arises for our consideration is as to whether the exemption
notification would apply in respect of drugs which were manufactured up to 31st
October, 1999 or manufactured and sold up to the said date. The exemption granted is in
respect of what. It is in respect of a drug manufactured by a company. What is marketed
for sale is the drug manufactured. Manufacture of a drug is controlled by a different
statute, namely the Drugs and Cosmetics Act, 1940. Process of marketing the drug as also
the maximum price which can be charged have direct relation with manufacture and also
the date thereof. The wrapper/foil/containers in which the drug is marketed contains
several informations for the general public; one of them being the date of manufacture
and the retail price. Various other informations are also required to be furnished.
24. The contention of learned Additional Solicitor General that the drug could be
manufactured up to 31st October, 1999 but on and from 1st November, 1999 it could be
sold only at the price specified in the order, in our opinion, cannot be accepted. If the first
respondent was entitled to avail the benefit of the exemption notification till the midnight
of 31st October, 1979, sometime would be necessary for it to market the same. There
must be some time lag between the period the drug is manufactured and the actual sale by
a retail dealer to the customer.
25
. The Court while construing an exemption notification cannot lose sight of the ground
realities including the process of marketing and sale. The exemption order dated 29th
August 1995 is clear and unambiguous. By reason thereof what has been exempted is the
drug which was manufactured by the company and the area of exemption is from the
operation of the price control. They have a direct nexus. They are correlated with each
other. While construing an exemption notification not only a pragmatic view is required
to be taken but also the practical aspect of it. A manufacturer would not know as to when
the drug would be sold. It has no control over it. Its control over the drug would end
when it is despatched to the distributor. The distributor may despatch it to the wholeseller.
A few others may deal with the same before it reaches the hands of the retailer. The
manufacturer cannot supervise or oversee as to how others would be dealing with its
product. All statutes have to be considered in light of the object and purport of the Act.
Thus, the decision relied upon by the learned Additional Solicitor eneral in Union of
India v. Cynamide India Ltd. (1987) 2 SCC 720; Prag Ince and Oil Mills v. Union of
India (1978) 3 SCC 459 and Sree Meenakshi Mills v. Union of India (1973) 1 SCC 129
will have no application. AIR 1987 SC 1802
AIR 1978 SC 1296
AIR 1973 SC 537
26. It is true that 1995 Order was to control the price and not the manufacture. But there
cannot be any doubt that the price is that of a manufactured drug.
Not only in terms of the Essential Commodities Act, 1955 but also under various others,
for example Customs and Central Excise Act and Weights and Measures Act (if
applicable) several informations are required to be furnished. If the submission of Mr.
Gopal Subramaniam that the first respondent was bound not only to manufacture but also
to sell at a price up to 31st
@page-SC2291
October, 1999 is correct, the same in our opinion would lead to an absurdity. Such an
anomaly and absurdity must be avoided.
27. Learned counsel wants us to apply the principle of purposive construction. It may be
applied so as to give full effect to the exemption notification. The exemption notification
must be construed to be a workable one.
In New India Assurance Co. Ltd. v. Nusli Neville Wadia and another, 2007 (14) Scale
556 this Court opined :- 2008 AIR SCW 208
"51. Barak in his exhaustive work on 'Purposive Construction' explains various meanings
attributed to the term "purpose". It would be in the fitness of discussion to refer to
Purposive Construction in Barak's words :
"Hart and Sachs also appear to treat "purpose" as a subjective concept. I say "appear"
because, although Hart and Sachs claim that the interpreter should imagine himself or
herself in the legislator's shoes, they introduce two elements of objectivity : First, the
interpreter should assume that the legislature is composed of reasonable people seeking to
achieve reasonable goals in a reasonable manner; and second, the interpreter should
accept the non-rebuttable presumption that members of the legislative body sought to
fulfil their constitutional duties in good faith. This formulation allows the interpreter to
inquire not into the subjective intent of the author, but rather the intent the author would
have had, had he or she acted reasonably."
(Aharon Barak, Purposive Interpretation in Law (2007) at pg. 87)
While referring to its decision in Oriental Insurance Co. Ltd. v. Brij Mohan and others,
2007 (7) Scale 753, it applied the doctrine of purposive construction. Applying the
principle of doctrine of purposive construction, we are of the opinion that meaningful
purpose could be achieved only if the construction of the notification as indicated
hereinbefore is adopted and no other. 2007 AIR SCW 3734
28. There is no merit in this appeal which fails and is accordingly dismissed with costs.
Appeal dismissed.
AIR 2008 SUPREME COURT 2291 "Mandali Ranganna v. T. Ramachandra"
(From : Karnataka)*
Mandali Ranganna and Ors. etc. v. T. Ramachandra and Ors.
(A) Civil P.C. (5 of 1908), O.39, R.1, R.2 - INJUNCTION - Injunction - Grant of -
Besides consideration of basic elements, Court must consider conduct of parties.
While considering an application for grant of injunction, the Court will not only take into
consideration the basic elements in relation thereto, viz, existence of a prima facie case,
balance of convenience and irreparable injury, it must also take into consideration the
conduct of the parties. Grant of injunction is an equitable relief. A person who had kept
quiet for a long time and allowed an-other to deal with the properties exclusively,
ordinarily would not be entitled to an order of injunction. The Court will not interfere
only because the property is a very valuable one.
Grant or refusal of injunction has serious consequence depending upon the nature thereof.
The Courts dealing with such matters must make all endeavours to protect the interest of
the parties. For the said purpose, application of mind on the part of the Courts is
imperative. (Para 18)
(B) Civil P.C. (5 of 1908), O.39, R.1, R.2 - INJUNCTION - DECREE - PARTITION -
POSSESSION - Injunction - Grant of - Suit for preliminary decree for partition and
possession - Consequential decree for permanent injunction restraining respondents from
alienating or constructing on said properties was also sought - Prima facie respondents in
possession of properties in suit for a long time - Appellants never exercised any act of
possession - During pendency of suit huge constructions come up on disputed land -
Cannot be directed to be demolished, at least at this stage - One of respondents said to
have spent three crores of rupees - Thus, in fact and circumstances it would not be proper
to stop further constructions - In interest of justice respondents allowed to carry out
constructions of buildings, subject to ultimate decision of suit. (Paras 23, 24)
@page-SC2292
2006 AIR SCW 4773 : AIR 2006 SC 3275 (Ref.) 19
(2006) 1 SCC 540 (Ref.) 22
(2006) 5 SCC 282 (Ref.) 22
2000 AIR SCW 2172 : AIR 2000 SC 2114 : 2000 CLC 1338. (Ref) 19
1999 AIR SCW 3050 : AIR 1999 SC 3105 (Ref.) 19
(1975) 1 All ER 504 19
Arun Jaitley, Mukul Rohatgi, K.K. Venugopal, Mrs. Nalini Chidambaram, R.F. Nariman,
Sr. Advocates, M. Shanmukhappa, S. Balaji, S.R. Sharma, Ms. Madhusmita Bora, S.
Srinivasan, Solomon Francis, Ms. Sunieta Ojha, Ms. Shashi M. Kapila, Gopal Shan
Karnarayanan, Kunal Tandon, D.S. Jayaraj, L. Prem Kumar, Vikas Mehta, Shri Narain,
Sandeep Narain, Navkesh Batra (For M/s. S. Narain and Co.) and K.V. Vijay Kumar, with
them for the appearing parties.
* M. F. A. Nos. 11783 and 11785 of 2006, D/-6-3-2007 (Kant).
Judgement
2. Appellants herein are aggrieved by and dissatisfied with a judgment and order dated 6-
3-2007 passed by the High Court of Karnataka whereby and whereunder the private
respondents herein were allowed to make constructions on the lands in suit, subject to the
final decision therein. It was furthermore directed that any alienation or creation of an
interest by the defendants would be subject to the decision of the suit.
3. With a view to appreciate the fact involved in the matter, we may notice the
genealogical table of the parties.
4. The suit properties were acquired in the year 1912 by a deed of sale dated 22-1-1912.
Allegedly, the predecessor in interest of the respondents being the original defendant No.
1 (M. Ramachandra) was adopted by Puttathyamma, widow of late T. M. Thimmaiah. A
deed of adoption, therefor, was executed on 13-12-1937. Allegedly, a partition in the
family properties took place in the year 1924.
One of the questions which arose for consideration in the suit was as to whether the said
partition was in respect of all the properties or a partial partition. Appellants contend that
even assuming that Puttathyamma adopted M. Ramachandra, from a perusal of a deed of
adoption, it will appear that some properties were still been jointly possessed.
5. On 23-5-1938, upon the death of Sri T. M. Chikkaranaganna his legal representatives
partitioned his self acquired properties, both movable and immovable. On 22-2-1954, the
children of Muniswamappa executed a registered Partition Deed, by which his share in
the properties came to be partitioned. From 1957-1969, a number of transactions mainly
in the nature of grant of lease took place in respect of the suit properties. No title came to
be created in favour of third parties.
On 20-12-1971 for the first time, the first respondent entered into a partition deed, with
the members of his family in which the suit schedule property was set out in the
@page-SC2293
deed. Between 2002-2003, the petitioners called upon the defendants to partition the said
properties which was refused by the defendants.
6. Appellants herein filed original suit No. 7039 of 2003 in the City Civil Court,
Bangalore in Septembers, 2003 inter alia contending that the partition which had taken
place earlier between the parties was only a partial one. They merely prayed for a
declaration that the suit schedule properties are the joint family properties of the
appellants and respondents herein.
7. They also prayed for a preliminary decree for partition and possession of the property
in Schedules A and B according to the shares of parties. A consequential decree for
permanent injunction restraining the respondents from alienating or constructing on the
said properties was also sought.
8. During pendency of the said suit, original defendants executed a registered deed of
lease on 15-12-2004 in favour of respondent No. 12 herein. Possession of the property, in
question, was handed over to him. A deed of rectification was also executed on 12-12-
2005. Appellants herein, thereafter filed an application (I. A. No. 9) for grant of
injunction against the defendant/respondent for restraining them from digging pits,
putting up constructions etc. during pendency of the suit. Respondent No. 12 was also
impleaded as party therein.
Another application (I. A. No. 12) for injunction was also filed for restraining the
defendants and in particular the defendant No. 7 from changing the nature of property or
transferring or alienating the right in respect of the properties described in Schedule "A"
of the plaint in favour of the third parties. .
9. By an order dated 24-4-2006, the learned Trial Judge directed maintenance of status
quo. However, by reason of an order dated 12-9-2006, both the I. As. were allowed. The
orders of injunction as prayed for were passed therein. On an appeal having been
preferred therefrom by the respondents herein before the High Court, the same was
allowed by reason of the impugned judgment directing;
"17. For the above said reasons, both the appeals are allowed and setting aside the
impugned order, I.As. 9 and 12 filed before the Trial Court are dismissed. However, it is
made clear that any construction that is going to be put up in suit properties shall be
subject to the decision in the suit and any alienation or creation of interest by the
defendants, shall be subject to the decision of the suit. If any alienation is made or any
interest is created in the suit property during the pendency of suit, the defendants shall
intimate transferees or concerned person about the transaction being subject to the
decision of the suit and shall mention in the concerned document that transaction will be
subject to the decision in the suit. Any creation of interest shall be intimated by the
defendants to the Trial Court."
10. Mr. Arun Jaitley, learned senior counsel appearing on behalf of the appellant
submitted;
(i) From a perusal of the deed of adoption dated 13-12-1937, it would appear that the
properties, in question, had not been partitioned fully.
(ii) Possession of a co-owner would be possession of the others and in that view of the
matter, the respondents must be held to have been possessing the lands for the benefits of
all the co-sharers. The fact that no mutation of the land has been effected is also a pointer
to show that there was no final partition between the parties.
(iii) It may be that a lease was created in respect of 1/3rd of the property, but thereby the
right of the plaintiffs had not come to an end and in that view of the matter, so long the
co-sharers were managing the properties in a manner which was not detrimental to the
interest of the appellants, it was not necessary for them to file any suit. Creation of a third
party interest, in a situation of this nature, or allowing the parties to carry on
constructions would cause irreparable injuries to the appellants.
(iv) Respondents having started constructions despite knowledge of the special leave
petition, this Court should direct stoppage of such constructions in view of their conduct.
11. Mr. K. K. Venugopal, Mrs. Nalini Chidambram and Mr. R. F. Nariman, learned senior
counsel appearing on behalf of the respondents, on the other hand, submitted :
(i) The partition having been effected as far back in 1924, and the principal respondents
having been in possession of the properties from 1956 till 2003 when they granted lease
in respect of 1/3rd of the property,
@page-SC2294
the impugned judgment should not be interfered with. Even an advertisement was issued
for sale of 1/3rd of the land in the year 1985 and the deed of sale was executed on 25-7-
1989.
(ii) Admittedly, as would appear from the photographs appended to the counter-affidavit,
huge constructions have come up on the lands in question and as such there was no
reason as to why the appellants had kept quiet for so long.
(iii) A large number of documents have been filed before the Court below not only
showing dealings with the properties but also showing execution of the deeds of lease,
payment of corporation tax, income tax, capital gains tax, etc. which clearly point out
separate possession of the properties by the defendants.
(iv) In view of the fact that they have been collecting rent from the tenants themselves
would show that the appellants have no prima facie case. These documents having been
filed before the learned Trial Judge, it committed a serious error in not taking the same
into consideration and, thus, the High Court has rightly interfered therewith by reason of
(v) Respondents, keeping in view the escalation of the costs of the building materials,
would suffer irreparable injury, if they are not permitted to carry out the constructions.
(vi) The Trial Court proceeded to consider the matter only from the angle as to whether
the appellants would suffer irreparable injury or not without considering the other factors
relevant for grant of injunction, viz., prima facie case and balance of convenience.
(vii) in any event, as the respondent No. 7 has spent about three crores of rupees as a
developer, the impugned judgment should not be interfered with.
12. The property in question is indisputably a valuable property. It is situated in the heart
of the commercial area of the town of Bangalore. The land in question admeasures 1 lakh
70 thousand sq. feet.
13. The principal question which arises for consideration is as to whether the properties in
question were the subject matter of partition purported to have taken place in 1924 or
subsequently or not?
14. Mr. Jaitley has taken us through various documents filed by the parties to show that
the respondents had been taking contradictory stand with regard to the date of oral
partition among T. M. Muniswamapa, T. M. Thimmaiah and T. M. Chikkaranganna, sons
of Mandi Madalappa. It was pointed out that even in the deed of partition, a stand was
taken by Puttathayamma that her husband and his brothers have effected partition on 30-
6-1924 and the properties fallen to the respective shares are being enjoyed by the
respective owners, but in the purported deed of partition dated 22-2-1954 between M. M.
Madalappa and M.M. Thimmaiah, the date of partition is mentioned as 24-6-1924.
However, in the sale deed dated 30-9-1987 executed between M. M. T. Muniswamappa
@ M. M. T. Navin and Mr. Ziaulla Sheriff, M/s. Alexander Apartment Development
Corporation, Bangalore, it was stated that the three brothers entered into an oral partition
on 26-4-1924. Whereas, in the synopsis, it was stated that the family properties were
partitioned on 30-6-1924 and the properties in question fell into the share of T. M.
Thimmaiah which was succeeded by Smt. T. Puttathayamma and T. Ramachandra and
thereafter by his family members, in the writ petition filed on behalf of T. M.
Ramachandra, T. R. Harish, T. R. Shekar, Smt. Padma, Smt. T. R. Rekha and Smt. T. R.
Nadini being W. P. No. 29853 of 2002, it was stated that Mandi Madalappa was said to
have been put in possession pursuant to the sale transaction and after his death the same
was succeeded by T. M. Thimmaiah who had been in enjoyment of the property during
his lifetime and he had let out the property in favour of Garrison Engineers. In the W. P.
No. 31865 of 2002, it was stated that Mandi Madalappa was put in possession and
enjoyment of the property pursuant to the said transaction and after his death the property
was succeeded by his son Shri T. M. Thimmaiah who had been in possession and
enjoyment of the property during his life time and he had let out the property in favour of
Garrison Engineers.
15. We have taken note of the aforementioned contentions of Mr. Jaitley only to highlight
with issue in regard to the factum of partition but the same by itself, in our opinion, for
the purpose of determining the issues herein, would not be conclusive. Prima facie it
appears that the respondents had been in possession of the properties in suit
@page-SC2295
for a long time. The heirs of Thimmaiah had admittedly been dealing with the properties
exclusively. Appellants never exercised any act of possession. The learned Trial Judge in
his judgment itself observed :
"41......No doubt, there is no reference to the suit properties as belonging to the joint
family property. This may be a point in favour of the defendants in support of their
contention that the suit property was already divided in the year 1924 and, therefore,
these documents do not contain reference to the suit properties.....
42. Similarly, the other documents furnished by the counsel for the defendants 1 to 6 in
page Nos. 75 to 293 may establish their contention about their exclusive possession. But,
I am afraid that this fact itself will be sufficient to throw away the suit at the threshold."
16. A large number of documents were produced by the respondents to substantiate that
the property in question was in exclusive enjoyment of T. M. Thimmaiah being the
adopted father of T. Ramachandra from 1924 to 1936. The properties were in possession
of T. Puttathaiamma, widow of Thimmaiah from 1937 to 1955 and thereafter the other
respondents.
17. Respondents contend that the adoption deed must be read as a whole. The translation
of the deed of adoption does not appear to be correct. The deed of adoption categorically
establishes that the properties were to belong to T. Puttahyamma during her lifetime, and
thereafter the same was to vest in the adoptive son T. Ramachandra. Although no
reference to the suit properties might have been made in the deed of adoption but they
had all along been in possession of T. Puttathyamma. Apart therefrom evidently the deed
of lease was executed in the year 1963 in respect of 1/3rd of the suit schedule property. It
was renewed in the year 1969. The property was developed and the nature and character
thereof was changed from time to time. A registered deed of lease was executed in the
year 1968 between Killik Nixon and T. Ramachandra. A deed of partition was also
executed on 20-12-1971. A deed of lease was executed in the year 1977 between
Respondent No. 6 and Classic Automobiles. A public notice was also issued in the year
1985 whereafter a deed of sale was executed on 25-7-1989.
18. While considering an application for grant of injunction, the Court will not only take
into consideration the basic elements in relation thereto, viz., existence of a prima facie
case, balance of convenience and irreparable injury, it must also take into consideration
the conduct of the parties.
Grant of injunction is an equitable relief. A person who had kept quiet for a long time and
allowed another to deal with the properties exclusively, ordinarily would not be entitled
to an order of injunction. The Court will not interfere only because the property is a very
valuable one. We are not however, oblivious of the fact that grant or refusal of injunction
has serious consequence depending upon the nature thereof. The Courts dealing with such
matters must make all endeavours to protect the interest of the parties. For the said
purpose, application of mind on the part of the Courts is imperative. Contentions raised
by the parties must be determined objectively.
19
. This Court in M. Gurudas and others v. Rasaranjan and Others ((2006) 8 SCC 367)
noticed ; 2006 AIR SCW 4773, Para 20
" 19. A finding on "prima facie case" would be a finding of fact. However, while arriving
at such a finding of fact, the Court not only must arrive at a conclusion that a case for trial
has been made out but also other factors requisite for grant of injunction exist. There may
be a debate as has been sought to be raised by Dr. Rajeev Dhavan that the decision of the
House of Lords in American Cyanamid Co. v. Ethicon Ltd. would have no application in
a case of this nature as was opined by this Court in Colgate Palmolive (India) Ltd. v.
Hindustan Lever Ltd. and S. M. Dyechem Ltd. v. Cadbury (India) Ltd. but we are not
persuaded to delve thereinto."1999 AIR SCW 3050
2000 AIR SCW 2172
20. Therein, however, the question in regard to valid adoption of a daughter was in issue.
This Court held that Nirmala was not a validly adopted daughter. This Court wondered ;
"34. The properties may be valuable but would it be proper to issue an order of injunction
restraining the appellants herein from dealing with the properties in any manner
whatsoever is the core question. They have not been able to enjoy the fruits of the
development agreements. The properties have not been sold for a long time. The
commercial
@page-SC2296
property has not been put to any use. The condition of the properties remaining wholly
unused could deteriorate. These issues are relevant. The Courts below did not pose these
questions unto themselves and, thus, misdirected themselves in law."
21. Emphasis was also laid on the conduct of the parties while granting an order of
injunction.
22. In Seema Arshad Zaheer and others v. Municipal Corpn. of Greater Mumbai and
others ((2006) 5 SCC 282), this Court held :
"30. The discretion of the Court is exercised to grant a temporary injunction only when
the following requirements are made out by the plaintiff; (i) existence of a prima facie
case as pleaded, necessitating protection of the plaintiff's rights by issue of a temporary
injunction; (ii) when the need for protection of the plaintiffs rights is compared with or
weighed against the need for protection of the defendants rights or likely infringement of
the defendant's rights, the balance of convenience tilting in favour of the plaintiff; and
(iii) clear possibility of irreparable injury being caused to the plaintiff if the temporary
injunction is not granted. In addition, temporary injunction being an equitable relief, the
discretion to grant such relief will be exercised only when the plaintiffs' conduct is free
from blame and he approaches the Court with clean hands."
(See also Transmission Corpn. of A. P. Ltd. v. Lanco Kondapalli Power (P) Ltd. ((2006) 1
SCC 540)
23. Rightly or wrongly construction have come up. They cannot be directed to be
demolished, at least at this stage. Respondent No. 7 is said to have spent three crores of
rupees. If that be so, in our opinion, it would not be proper to stop further constructions.
24. We, therefore, are of the opinion that the interest of justice would be subserved if
while allowing the respondents to carry out constructions of the buildings, the same is
made subject to the ultimate decision of the suit. The Trial Court is requested to hear out
and dispose of the suit as early as possible. If any third party interest is created upon
completion of the constructions, the deeds in question shall clearly stipulate that the
matter is sub judice and all sales shall be subject to the ultimate decision of the suit. All
parties must co-operate in the early hearing and disposal of the suit. Respondents must
also furnish sufficient security before learned Trial Judge within four weeks from the date
which, for the time being, is assessed at Rupees one Crore.
25. For the reasons aforementioned, the appeals are dismissed subject to the observations
and directions made hereinbefore. However, in the facts and circumstances of the case,
there shall be no order as to costs.
Appeals dismissed.
AIR 2008 SUPREME COURT 2296 "Jagdish Singh v. Madhuri Devi"
(From : Allahabad)
-2008.
Jagdish Singh v. Madhuri Devi.
(A) Hindu Marriage Act (25 of 1955), S.13, S.28 - DIVORCE - APPEAL - HIGH
COURT - SUPREME COURT - Divorce - Ground of desertion and cruelty - Order
passed by family Court on considering evidence in detail - Appeal - 'Cryptic', unreasoned
order passed by High Court - High Court did not consider evidence at all - Therefore,
High Court was wrong in observing that there were no specific instances of cruelty or
desertion - High Court also relied upon defence evidence though same was not relied
upon by Family Court for reasons recorded - Conclusions reached by High Court cannot
be endorsed - Matter remitted - Supreme Court declined to consider matter on merits,
though parties staying separately for more than two decades.
F. A. No. 1008 of 1999, D/-29-09-2004 (All), Reversed. (Paras 23, 34, 38)
(B) Civil P.C. (5 of 1908), S.96 - APPEAL - HIGH COURT - Appeal - Finding of fact
recorded by trial Court - Setting aside by High Court - No reasons recorded - So-called
conclusions reached by High Court, therefore, cannot be endorsed. (Para 35)
AIR 1983 SC 114 (Ref.) 32
AIR 1972 SC 1716 (Ref.) 31
AIR 1960 SC 115 (Ref.) 30
AIR 1951 SC 120 (Ref.) 28
AIR 1949 PC 32 27
(1947) 1 All ER 582 26
(1898) 1 Ch 704 26
Chandra Shekhar, Sanjay Kumar Tyagi,
@page-SC2297
Atul Kumar, Saurabh Upadhyay, L.D. Sharma, S.K. Verma, for Appellant; R.D.
Upadhyay, U.K. Shandllya, Vijay Kumar Pandita, Ms. Asha Upadhyay, for Respondent.
Judgement
C. K. THAKKER, J. :- Leave granted.
2. This appeal is filed against the judgment and order passed by the High Court of
Judicature at Allahabad on September 29, 2004 in First Appeal No. 1008 of 1999. By the
said judgment, the High Court reversed the decree of divorce passed in favour of the
appellant-husband by the Family Court, Allahabad on September 13, 1999 in Case No.
209 of 1992.
3. Short facts of the case are that the marriage between appellant and respondent was
solemnized on May 27, 1974 as per Hindu rites and ceremonies. For some time the
relations between the parties went on well. A female child Seema was born from the said
wedlock in 1980. It is the allegation of the husband that the wife did not cooperate with
him and his family members. She started pressurising the husband to live separately from
his parents, brothers and sisters. According to the husband, however, he was the eldest
son of his parents and was not in a position to oblige the wife by living with her. He had
to support his old parents and also to look after future of his brothers and sisters who
were dependent on him. Since the husband did not accede to the demand of the wife, her
behaviour towards the husband and his family members became rude. She started
threatening the husband that if he would not concede to her demand of living only with
her, he had to suffer consequences. The husband, however, was hopeful that in course of
time, the wife will get settled and there would be no problem. Unfortunately, however,
with the passage of time, the situation turned from bad to worse and she started
deliberately misbehaving not only with the husband but also with his old parents. She
was violent on petty issues and small matters. She used to insult them on one pretext or
the other and made the situation intolerable.
4. The appellant-husband, is a teacher and belongs to a respectable family. The above acts
of the respondent-wife lowered down and tarnished the image of the appellant and his
family in the society. It had also caused mental and physical agony to him. The
respondent did not mend her ways. In or about January, 1984, she left matrimonial home
with her brother in absence of the appellant without just or reasonable cause leaving her
minor daughter Seema and taking all ornaments and jewelleries. The appellant and his
family members made several efforts to bring respondent to the matrimonial home, but
she did not return. The appellant persuaded her that she should at least consider the
interest and well-being of Seema who needed love and affection of the mother, but it had
no effect whatsoever on the respondent. The appellant was deprived of conjugal rights.
Her conduct and behaviour towards appellant, his family members and a minor daughter
resulted in physical and mental cruelty to the appellant.
5. The matter did not end there. With a view to harass and humiliate the appellant in the
society, the respondent-wife filed a civil suit on April 17, 1992 (Smt. Madhuri Devi v.
Jagdish Singh) in the Court of learned Munsif Sadar, Pratapgarh for permanent injunction
alleging therein that the appellant-husband was likely to enter into second marriage and
since the first marriage with the plaintiff (wife) was subsisting, the defendant (husband)
had no right to perform second marriage. She also prayed for interim injunction. Ex parte
injunction was granted by the Court, but after hearing the parties, the application was
dismissed and injunction was vacated. Against the said order, the respondent had
preferred an appeal which is pending.
6. In spite of all this, the appellant tried to persuade the respondent to come back to
matrimonial home. But the respondent refused to stay with the appellant. So much so that
when the appellant arranged Seema's marriage and informed her, she did not attend it. In
view of all the circumstances, the appellant filed a divorce petition being Case No. 209 of
1992 in the Family Court, Allahabad under Section 13 of the Hindu Marriage Act, 1955
(hereinafter referred to as 'the Act') on two grounds, (i) Desertion; and (ii) Cruelty. The
Family Court, after considering the evidence led by the parties, decided both the issues in
favour of the appellant and passed a decree of divorce granting dissolution of marriage.
7. Being aggrieved by the decree passed by the trial Court, the respondent-wife preferred
an appeal in the High Court of Judicature
@page-SC2298
at Allahabad which was allowed. It reversed the decree of the Family Court and
dismissed the divorce petition instituted by the appellant-husband. It is this order which is
challenged in the present appeal by the husband.
8. Notice was issued by this Court pursuant to which the parties appeared. After hearing
the counsel, an order was passed on November 10, 2006 that if possible, the matter be
settled through mediation. The learned counsel for the parties stated to the Court that they
would try for settlement with an open mind. The parties were, therefore, directed to
approach Mediation Centre, Tis Hazari Court at Delhi. Parties then approached the
Mediation Centre. All attempts of settlement, however, failed. It was stated by the
counsel that it was not possible to arrive at a settlement and requested the Court to decide
the case on merits. In view of the nature of dispute, the Registry was directed to place the
matter for final disposal on a non-miscellaneous day and that is how the matter has been
placed before us.
9. We have heard the learned counsel for the parties.
10. The learned counsel for the appellant submitted that the High Court was wholly
wrong in allowing the appeal and in reversing the well-considered judgment of the
Family Court. It was submitted that on the basis of evidence adduced by the parties and
considering it in proper perspective in the light of surrounding circumstances, the Family
Court recorded a finding that the plaintiff-husband was entitled to a decree of divorce on
both the grounds, namely, desertion and cruelty. The Family Court considered the
evidence of the parties and held that it was the wife who had left matrimonial home
without just or reasonable cause and thus desertion was proved. It also came to the
conclusion that the conduct and behaviour of the wife was 'hostile' towards the husband
as well as his family members. The husband was deprived of conjugal rights which was a
case of cruelty. Her conduct of leaving minor daughter Seema was also highly improper.
On both the grounds, therefore, the plaintiff-husband was entitled to dissolution of
marriage.
11. It was submitted by the learned counsel that being aggrieved by the above decree, the
wife filed an appeal. The High Court persuaded the parties to settle the matter.
The husband tried his best to arrive at an amicable settlement, but because of attitude of
the wife, the dispute could not be resolved. The husband was not responsible for the
situation and yet the High Court blamed him. The High Court without considering the
evidence properly and ignoring the conclusions of the Family Court and reasons recorded
for coming to such conclusions, interfered with findings of fact and held that it was
neither a case of desertion nor a case of cruelty and the Family Court was wrong in
passing a decree of divorce. The order of the High Court, therefore, deserves to be set
aside by restoring the decree passed by the Family Court.
12. The learned counsel for the wife, on the other hand, supported the decree of the High
Court which set aside the decree of the Family Court. The counsel submitted that an
appeal by the wife before the High Court was 'first appeal' and the High Court had
jurisdiction to enter into questions of fact as well as questions of law. The High Court
held that the Family Court was wrong in relying upon the evidence of the husband and in
granting a decree of divorce. According to the High Court, there was neither ; desertion
nor cruelty on the part of the wife and the Family Court was wrong in granting relief to
the husband. In the alternative, the learned counsel submitted that if this Court is of the
view that the High Court has not recorded reasons and the order is 'cryptic', it can remit
the case to the High Court for passing an appropriate order in accordance with law.
13. Having heard the learned counsel for the parties, in our considered opinion, the order
passed by the High Court deserves to be set aside.
14. So far as the Family Court is concerned, it considered the evidence in detail of three
witnesses; PW 1 Jagdish Singh, husband, PW2 Lal Pratap Singh, brother of PW 1 and
PW 3 Nandlal. It also considered the depositions of DW1-wife and her witnesses. It
observed that the parties married in 1974 and Seema was born in 1980. Nothing was
shown which compelled or obliged the wife to leave matrimonial home. On the contrary,
the evidence went to show that it was the wife who was responsible for creation of
unpleasant situation which would amount to cruelty towards the husband and his family
members. She insisted her husband
@page-SC2299
to stay separately from his parents and other family members, but the plaintiff did not
accept the demand as he was the eldest member of the family and had to look after old
parents and other family members. The Family Court noted that it was the wife who left
matrimonial home. The trial Court also stated that at the time of leaving matrimonial
home, the wife was aware that she had a minor child (Seema) who was about 4-5 years of
age and yet she did not care to consider as to what will happen to her in absence of love
and affection of mother. Even thereafter she neither took care of her husband nor of her
daughter Seema. When she was informed that Seema was to marry, her motherhood and
love and affection did not attract her to attend the marriage of Seema and the marriage
was performed by the father in absence of the mother.
15. The Family Court observed that the grievance of the wife was against her husband
and not against her daughter Seema. She was, therefore, expected to behave properly with
Seema, but she failed to do so.
16. The Family Court also considered the evidence of defence witnesses and held by
recording reasons that the evidence was not reliable. So far as the evidence of DW 1
Madhuri Devi-wife is concerned, the Family Court noted that what was deposed by her
did not inspire confidence. On the other hand, the husband appeared to be 'simple' and of
'gentle nature' and his evidence was natural. In the light of the above facts and
circumstances, the Family Court did not rely upon the evidence of the wife and believed
the deposition of husband and his witnesses. Regarding the allegation of the wife that the
husband wanted to perform second marriage with one Poonam Singh and her filing of
suit and getting ad interim relief which was subsequently vacated, the Family Court noted
that from the circumstances in their entirety, it was clear that the wife had levelled false
allegations against the husband and a 'fake' case was filed by her. The Family Court
referred to an effort of settlement between the parties in Lok Adalat and noted that it was
the wife who refused to come and live with the husband. According to the Family Court,
the fact had been clearly mentioned on the Order-sheet on the file of the case. In the light
of all the facts and circumstances, the Family Court recorded a finding that it was the
wife who continuously acted with cruelty with the husband after marriage and in January,
1984, it was she who abandoned matrimonial home without any cogent and justifiable
reason and the husband was entitled to divorce.
17. So far as High Court is concerned, it noted in the judgment in first para that the
Family Court framed necessary issues and recorded a finding that the wife was guilty of
cruelty as also desertion and accordingly a decree of divorce was passed. In paragraph 2
of the judgment, the High Court stated that attempts were made to get the matter settled,
but no settlement could be arrived at. The High Court then noted that witnesses were
examined by the husband as also by the wife. In the next para, submissions of the learned
counsel for the wife were recorded.
18. In para 5, the High Court said : "We have seen the plaint and evidence adduced by the
Respondent. In the plaint no specific instance of cruelty has been mentioned. Same is the
case in the evidence of the respondent. No specific instance has been narrated. The
allegations as well as evidence on behalf of the respondent are vague and general in
nature."
19. In subsequent para, the High Court opined that the statement of the wife was 'natural'.
According to the High Court, the husband did not like the wife because she could not
bear a male child. It, however, noted that the parties were very young at the time of
marriage. It then speculated that the husband was a teacher in an Intermediate college and
stated :
"The appellant (wife) is not very educated and has studied up to class 7th only. It is
possible that the respondent (husband) 'may not like' her as she is not highly educated."
(Emphasis supplied)
20. The High Court also observed : "There is nothing in the evidence to disbelieve the
statement of the appellant (wife) and her brother DW 3. It is not disputed that Durga
Singh, DW 2 resident of the same village as that of the respondent (husband) and is his
relation. He has also supported the case of the appellant (wife). It is correct that the
respondent (husband) had brought up only daughter of the parties. However, this does not
mean that the appellant (wife) was cruel or deserted the respondent (husband)."
21. In view of above, according to the High
@page-SC2300
Court, the Family Court was wrong in holding that there was cruelty on the part of the
wife or that she deserted the matrimonial home. The findings recorded by the Family
Court were not well-founded and the appeal was required to be allowed. Accordingly, the
appeal was allowed and the decree passed by the Family Court was set aside.
22. From what is stated above, it is clear that the order passed by the High Court is
'cryptic' in nature. The Family Court considered the evidence in detail. It also considered
the circumstances why the case of the husband was believed that there was desertion on
the part of the wife and that her conduct and behaviour towards the husband, his family
members and daughter Seema was cruel. It was a case of physical and mental cruelty. In
the pleadings as well as in the evidence, the appellant-husband has given details how the
wife behaved with him and his family members; how she deserted him and deprived him
of conjugal rights; how 'fake' case was filed against him alleging that he wanted to
perform second marriage during the subsistence of first marriage; how she left
matrimonial home leaving not only the husband and his family members, but her own
daughter who was of a tender age of 4-5 years and never took care thereafter; how she
did not attend the marriage of Seema, why the evidence of plaintiff was believed and
evidence of defendant and her witnesses was not reliable. In the light of all the facts, the
Family Court came to the conclusion that the case was covered by Section 13 of the Act
and the petition was liable to be allowed and a decree for divorce was passed.
23. The High Court, on the other hand, did not consider the evidence at all. In fact, the
High Court was wrong in observing that there were no specific instances of cruelty or
desertion. The High Court also relied upon the defence evidence without considering the
fact that the Family Court recorded reasons for not relying upon such evidence.
24. It is no doubt true that the High Court was exercising power as first appellate court
and hence it was open to the Court to enter into not only questions of law but questions of
fact as well. It is settled law that an appeal is a continuation of suit. An appeal thus is a
rehearing of the main matter and the appellate court can re-appraise, re-appreciate and
review the entire evidence oral as well as documentary and can come to its own
conclusion.
25. At the same time, however, the appellate court is expected, nay bound, to bear in
mind a finding recorded by the trial court on oral evidence. It should not forget that the
trial court had an advantage and opportunity of seeing the demeanour of witnesses and,
hence, the trial court's conclusions should not normally be disturbed. No doubt, the
appellate court possesses the same powers as that of the original court, but they have to
be exercised with proper care, caution and circumspection. When a finding of fact has
been recorded by the trial court mainly on appreciation of oral evidence, it should not be
lightly disturbed unless the approach of the trial court in appraisal of evidence is
erroneous, contrary to well-established principles of law or unreasonable.
26. Before more than a century, in Coghlan v. Cumberland, (1898) 1 Ch 704, Lindley,
M.R. pronounced the principle thus :
"Even where the appeal turns on a question of fact, the Court of Appeal has to bear in
mind that its duty is to rehear the case, and the Court must reconsider the materials before
the Judge with such other materials as it may have decided to admit. The Court must then
make up its own mind, not disregarding the judgment appealed from, but carefully
weighing and considering it; and not shrinking from overruling it if on full consideration
the Court comes to the conclusion that the judgment is wrong. When, as often happens,
much turns on the relative credibility of witnesses who have been examined and cross-
examined before the Judge, the Court is sensible of the great advantage he has had in
seeing and hearing them. It is often very difficult to estimate correctly the relative
credibility of witnesses from written depositions and when the question arises which
witness is to be believed rather than another; and that question turns on manner and
demeanour, the Court of Appeal always is, and must be, guided by the impression made
on the Judge who saw the witnesses. But there may obviously be other circumstances,
quite apart from manner and demeanour, which may shew whether a statement is credible
or not; and these circumstances may warrant the Court in differing from the Judge, even
on a question of fact turning on the credibility of witnesses whom the Court has not
seen."
@page-SC2301
[See also observations of Lord Thankerton in Watt v. Thomas, (1947) 1 All ER 582]
27. In Sara Veeraswami v. Talluri Narayya, AIR 1949 PC 32 : 75 IA 252, the Judicial
Committee of the Privy Council, after referring to relevant decisions on the point, stated :
"But if the evidence as a whole can reasonably be regarded as justifying the conclusion
arrived at the trial, and especially if that conclusion has been arrived at on conflicting
testimony by a tribunal which saw and heard the witnesses, the appellate court will bear
in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to
where credibility lies is entitled to great weight. This is not to say that the Judge of first
instance can be treated as infallible in determining which side is telling the truth or is
refraining from exaggeration. Like other tribunals, he may go wrong on a question of
fact, but it is a cogent circumstance that a Judge of first instance, when estimating the
value of verbal testimony, has the advantage (which is denied to Courts of Appeal) of
having the witnesses before him and observing the manner in which their evidence is
given."
()
28
. This Court also, before more than half a century in Sarju Pershad v. Jwaleshwari, 1950
SCR 781, stated : AIR 1951 SC 120, (Para 7)
"The question for our consideration is undoubtedly one of fact, the decision of which
depends upon the appreciation of oral evidence adduced in the case. In such cases, the
appellate court has got to bear in mind that it has not the advantage which the trial Judge
had in having the witnesses before him and of observing the manner in which they
deposed in court. This certainly does not mean that when an appeal lies on facts, the
appellate court is not competent to reverse a finding of fact arrived at by the trial Judge.
The rule is - and it is nothing more than a rule of practice - that when there is conflict of
oral evidence of the parties on any matter in issue and the decision hinges upon the
credibility of the witnesses, then unless there is some special feature about the evidence
of a particular witness which has escaped the trial Judge's notice or there is a sufficient
balance of improbability to displace his opinion as to where the credibility lies, the
appellate court should not interfere with the finding of the trial Judge on a question of
fact.
29. Referring to several cases on the point, the Court concluded :
"The duty of the appellate court in such cases is to see whether the evidence taken as a
whole can reasonably justify the conclusion which the trial court arrived at or whether
there is an element of improbability arising from proved circumstances which, in the
opinion of the court, outweighs such finding."
(Emphasis supplied)
30
. After about a decade, in Radha Prasad v. Gajadhar Singh, (1960) 1 SCR 663, this Court
reiterated; AIR 1960 SC 115, (Para 14)
"The position in law, in our opinion, is that when an appeal lies on facts it is the right and
the duty of the Appeal Court to consider what its decision on the question of facts should
be; but in coming to its own decision it should bear in mind that it is looking at the
printed record and has not the opportunity of seeing the witnesses and that it should not
lightly reject the Trial Judge's conclusion that the evidence of a particular witness should
be believed or should not be believed particularly when such conclusion is based on the
observation of the demeanour of the witness in Court. But, this does not mean that merely
because an Appeal Court has not heard or seen the witness it will in no case reverse the
findings of a Trial Judge even on the question of credibility, if such question depends on a
fair consideration of matters on record. When it appears to the Appeal Court that
important considerations bearing on the question of credibility have not been taken into
account or properly weighed by the Trial Judge and such considerations including the
question of probability of the story given by the witnesses clearly indicate that the view
taken by the Trial Judge is wrong, the Appeal Court should have no hesitation in
reversing the findings of the Trial Judge on such questions. Where the question is not of
credibility based entirely on the demeanour of witnesses observed in Court but a question
of inference of one fact from proved primary facts the Court of Appeal is in as good a
position as the Trial Judge and is free to reverse the findings if it thinks that the inference
made by the Trial Judge is not justified."
@page-SC2302
31
. In T.D. Gopalan v. Commissioner of Hindu Religious and Charitable Endowments,

Madras, (1973) 1 SCR 584, this Court said : AIR 1972 SC 1716, (Para 9)
The High Court next proceeded to reproduce a summary of the statement of each of the
witnesses produced by the defendants. No attempt whatsoever was made to discuss the
reasons which the learned District Judge had given for not accepting their evidence
except for a general observation here and there that nothing had been suggested in the
cross-examination of a particular witness as to why he should have made a false
statement. We apprehend that the uniform practice in the matter of appreciation of
evidence has been that if the trial court has given cogent and detailed reasons for not
accepting the testimony of a witness the appellate court in all fairness to it ought to deal
with those reasons before proceeding to form a contrary opinion about accepting the
testimony which has been rejected by the trial court. We are, therefore, not in a position
to know on what grounds the High Court disagreed with the reasons which prevailed with
the learned District Judge for not relying on the evidence of the witnesses produced by
the defendants."
32
. Yet in another decision in Madhusudan Das v. Narayanibai, (1983) 1 SCR 851, this
Court said : AIR 1983 SC 114, (Para 8)
"At this stage, it would be right to refer to the general principle that, in an appeal against
a trial court decree, when the appellate court considers an issue turning on oral evidence
it must bear in mind that it does not enjoy the advantage which the trial court had in
having the witnesses before it and of observing the manner in which they gave their
testimony. When there is a conflict of oral evidence on any matter in issue and its
resolution turns upon the credibility of the witnesses, the general rule is that the appellate
court should permit the findings of fact rendered by the trial court to prevail unless it
clearly appears that some special feature about the evidence of a particular witness has
escaped the notice of the trial court or there is a sufficient balance of improbability to
displace its opinion as to where the credibility lies. . . The principle is one of practice and
governs the weight to be given to a finding of fact by the trial court. There is, of course,
no doubt that as a matter of law if the appraisal of the evidence by the trial court suffers
from a material irregularity or is based on inadmissible evidence or on a misreading of
the evidence or on conjectures and surmises the appellate court is entitled to interfere
with the finding of fact.
(Emphasis supplied)
33. Three requisites should normally be present before an appellate court reverses a
finding of the trial court :
(i) it applies its mind to reasons given by the trial court;
(ii) it has no advantage of seeing and hearing the witnesses; and
(iii) it records cogent and convincing reasons for disagreeing with the trial court.
34. If the above principles are kept in mind, in our judgment, the decision of the High
Court falls short of the grounds which would allow the first appellate court to reverse a
finding of fact recorded by the trial court. As already adverted earlier, the High Court has
'virtually' reached a conclusion without recording reasons in support of such conclusion.
When the Court of original jurisdiction has considered oral evidence and recorded
findings after seeing the demeanour of witnesses and having applied its mind, the
appellate court is enjoined to keep that fact in mind. It has to deal with the reasons
recorded and conclusions arrived at by the trial court. Thereafter, it is certainly open to
the appellate court to come to its own conclusion if it finds that the reasons which
weighed with the trial Court or conclusions arrived at were not in consonance with law.
35. Unfortunately, in the instant case, the said exercise has not been undertaken by the
High Court. So-called conclusions reached by the High Court, therefore, cannot be
endorsed and the decree passed in favour of the wife setting aside the decree of divorce in
favour of the husband cannot be upheld. The order, therefore, deserves to be quashed and
set aside and is hereby set aside.
36. Since, there is non-consideration of the principles laid down by this Court in various
cases, some of them have been referred to hereinabove, the only course available to this
Court is to remit the matter to the High Court so as to enable it to pass an
@page-SC2303
appropriate order afresh.
37. We may observe at this stage that the learned counsel for the husband submitted that
this is a matrimonial matter and the parties [husband and wife] are staying separately
since more than two decades. Hence, instead of remitting the matter to the High Court,
this Court may on the basis of the evidence led by the parties, come to a conclusion one
way or the other. In our considered opinion, however, when the law has conferred the
power of reappreciation of evidence on facts and on law on the first appellate court [in
the instant case on the High Court], it would not be appropriate for this Court to
undertake that task. It would be better if we allow the appellate court to exercise the
power, discharge the duty and perform the function under the Code. We are, however,
conscious and mindful that since about a quarter century, the parties are staying
separately. We, therefore, request the High Court to give priority to the case and decide it
as expeditiously as possible.
38. For the foregoing reasons, the appeal is allowed, the judgment and decree passed by
the High Court in First Appeal No. 1008 of 1999 is set aside and the matter is remanded
to the said Court for fresh disposal in accordance with law. The High Court will decide it
as expeditiously as possible.
39. Before parting with the matter, we may clarify that all the observations made by us in
this judgment are only for the limited purpose to show that the High Court was not right
in setting aside finding of facts recorded by the Family Court without recording reasons
for such reversal and without keeping in view the scope of powers of first appellate
Court. But we may not be understood to have expressed any opinion finally one way or
the other on the merits of the matter. As and when the matter will be placed before the
High Court it will be decided on its own merits without being influenced by any
observations made by us.
40. On the facts and in the circumstances of the case, the parties shall bear their own
costs.
Appeal allowed.
AIR 2008 SUPREME COURT 2303 "Rajkumar Gurawara v. M/s. S. K. Sarwagi and Co.
Pvt. Ltd."
(From : Andhra Pradesh)
-2008.
Rajkumar Gurawara (Dead) Thr. L.Rs. v. M/s. S.K. Sarwagi and Co. Pvt. Ltd. and Anr.
(A) Civil P.C. (5 of 1908), O.6, R.17, Proviso (as substituted by Act 22 of 2002) -
AMENDMENT - PLEADINGS - Amendment of pleadings - Pre-trial amendments - Are
to be allowed liberally than those sought to be made after commencement of trial.
Order 6 Rule 17 C.P.C. confers jurisdiction on the Court to allow either, party to alter or
amend his pleadings at any stage of the proceedings on such terms as may be just. Such
amendments seeking determination of the real question of the controversy between the
parties shall be permitted to be made. Pre-trial amendments are to be allowed liberally
than those which are sought to be made after the commencement of the trial. The
opposite party is not prejudiced because he will have an opportunity of meeting the
amendment sought to be made. In the latter case, namely, after the commencement of
trial, particularly, after completion of the evidence, the question of prejudice to the
opposite party may arise and in such event, it is incumbent on the part of the Court to
satisfy the conditions prescribed in the proviso. (Para 5)
(B) Civil P.C. (5 of 1908), O.6, R.17, Proviso - PLEADINGS - AMENDMENT -
DECLARATION OF TITLE - LEASE - Amendment of plaint after commencement of
trial - Permissibility - Suit for declaration - Plaintiff claiming exclusive right to do mining
operations over suit lands - Govt. had leased out lands for mining operations to a private
Company - In spite of being put in knowledge of said fact, plaintiff did not implead
Company to suit or take steps for necessary amendment - Amendment prayed for at
argument stage for claiming relief of recovery of possession of suit lands and damages
from Company - Cannot be allowed. (Paras 6, 7)
Siddharth Luthra, Sr. Advocate, Ms. Shashi M. Kapila, Arundhati Katju, Kunal Tandon
and Vikas Merita, for Appellants; A.V. Rangam, Buddy A. Ranganadhan, Manoj
@page-SC2304
Saxena, Rajneesh Kr. Singh, Rahul Shukla and T.V. George, for Respondents.
Judgement
P. SATHASIVAM, J. :- Leave granted.
2. Challenge in this appeal is the order dated 17-8-2004 of the High Court of Andhra
Pradesh at Hyderabad in Civil Revision Petition No. 1738 of 2004 whereby the High
Court allowed the revision filed by respondent No. 1 herein.
3. The brief facts leading to the filing of this appeal are :
On 5-1-1948, the father of the appellant purchased the suit lands at Ayitham Valasa
Village, Grividi Mandal, Vizianagaram, Andhra Pradesh along with some other properties
for Rs. 9,176/- at a public auction held under the liquidation proceedings in O. P. No.30
of 1946 on the file of the District Court at Vizianagaram before the Official Liquidator at
Vizagpatnam (Visakhapatnam) in the matter of the Indian Companies Act, 1913 and of
the Vizianagaram Mining Co. Ltd. in liquidation and the Rajah Saheb and others as
creditors in pursuance of the order dated 6-3-1946 passed by the High Court of Madras in
O. P. No. 25 of 1946. The suit lands were registered on 30-4-1948 under the Registered
Document No. 732 of 1948 in Book I, Volume 346 at pages 147 to 151 in the office of the
Registrar at Vizianagaram in favour of the father of the appellant conveying , transferring
and assigning all the rights including ownership possession and interests of Vizianagaram
Mining Co. Ltd., i.e. right to mining operations, use and sell the said lands. The mining
operations were carried over the said lands in the name and style as M/s. Ashwani
Rajkumar Mining and Trading Company by the father of the appellant. In 1958, the father
of the appellant expired. After the death of father, the appellant was carrying the mining
operations. In 1960, the appellant left Vizianagaram for Jagadalpur because of his other
business work. In 2001-2002, the appellant came to know that respondent No. 2 - State of
Andhra Pradesh, was planning to lease out the said, lands for mining operation to other
companies. On 22-3-2002, the appellant issued a notice under Section 80 C.P.C. to the
State through his counsel asking the State not to give the suit property on lease to any
other party and not to interfere with the rights and interest of the appellant over the suit
lands. On 8-7-20002, the appellant came to know that respondent No. 2 - State has
invited some companies to take the suit lands on lease against the rights and interest of
the appellant. On 20-8-2002, the appellant filed Original Suit No. 6 of 2002 in the Court
of the Additional District Court Vizianagaram seeking declaration of his exclusive right
to do mining operation, to use and sell over the suit lands against respondent No. 2's
infringement of such exclusive right of the appellant over the suit lands. An application of
ad-interim injunction was also filed restraining respondent No. 2 from ever leasing the
suit land to strangers against the interest of the appellant over the said lands. When the
trial was about to close in the said suit, on 11-6-2003, an application under Order 1 Rule
10 CPC was filed by respondent No. 1 herein to be added as defendant No. 2 in the
original suit on the ground that a deed has been executed in its favour by the State leasing
the suit lands for mining operations. On 11-7-2003, the said application was allowed by
the Additional District Judge and respondent No. 1 herein was added as defendant No. 2
in the original suit.
Thereafter on 14-10-2003, an application was moved on behalf of respondent No. 1 for
appointment of a local Commissioner to note the physical features of the suit lands and to
file his report. The said application was allowed by order dated 23-10-2003 and a local
Commissioner was appointed. On 3-12-2003, the Commissioner inspected the suit lands
and filed its report stating that the suit lands were in possession of respondent No. 1 and
mining operations were carried by it. In December 2003 itself, the appellant herein
moved an application under Order VI Rule 17 C.P.C. for amendment of the plaint and
also consequential relief for possession of the suit lands and for damages trespassing into
and carrying on mining operations on the suit lands and the same was allowed on 10-3-
2004. Against the said order, respondent No. 1 approached the High Court by way of
revision petition. By order dated 17-8-2004, the High Court allowed the said revision
petition. Aggrieved by the said order, the above appeal has been filed by way of special
leave.
4. Heard Mr. Siddharth Luthra, learned senior counsel appearing for the appellants and
Mr. A. V. Rangam, learned counsel appearing for respondent No. 1 and Mr. Manoj
Saxena, learned counsel appearing for respondent No. 2.
@page-SC2305
5. Originally, the appellant/plaintiff filed the suit for declaration of his exclusive right to
do mining operation in the suit property. However, after impleadment of M/s. S. K.
Sarwagi and Company as second defendant (first respondent herein) after closing of the
evidence and during the course of argument the plaintiff filed an application under Order
VI Rule 17 read with 151 CPC for amendment of the plaint praying for possession over
the plaint schedule mentioned property from the defendants and for grant of damages of
Rs. 5.00 lacs in favour of the plaintiff for their mining operations without consent of the
plaintiff in the plaint schedule property. Though the learned Additional District Judge
allowed the application for amendment on payment of cost of Rs. 300/-the High Court in
a civil revision filed under Article 227 of the Constitution of India set aside the same and
dismissed the application for amendment which is the subject matter in this appeal. In
order to consider whether the appellant/plaintiff has made out a case for amendment of
his plaint, it is useful to refer Order VI Rule 17 CPC which reads as under :-
"17. Amendment of pleadings.- The Court may at any stage of the proceedings allow
either party to alter or amend his pleadings in such manner and on such terms as may be
just, and all such amendments shall be made as may be necessary for the purpose of
determining the real questions in controversy between the parties :
Provided that no application for amendment shall be allowed after the trial has
commenced, unless the Court comes to the conclusion that in spite of due diligence, the
party could not have raised the matter before the commencement of trial."
The first part of the rule makes it abundantly clear that at any stage of the proceedings,
parties are free to alter or amend their pleadings as may be necessary for the purpose of
determining the real questions in controversy. However, this rule is subject to proviso
appended therein. The said rule with proviso again substituted by Act 22 of 2002 with
effect from 1-7-2002 makes it clear that after the commencement of the trial, no
application for amendment shall be allowed. However, if the parties to the proceedings
able to satisfy the Court that in spite of due diligence could not raise the issue before the
commencement of trial and the Court satisfies their explanation, amendment can be
allowed even after commencement of the trial. To put it clear, Order VI Rule 17 C.P.C.
confers jurisdiction on the Court to allow either party to alter or amend his pleadings at
any stage of the proceedings on such terms as may be just. Such amendments seeking
determination of the real question of the controversy between the parties shall be
permitted to be made. Pre-trial amendments are to be allowed liberally than those which
are sought to be made after the commencement of the trial. As rightly pointed out by the
High Court in the former case, the opposite party is not prejudiced because he will have
an opportunity of meeting the amendment sought to be made. In the latter case, namely,
after the commencement of trial, particularly, after completion of the evidence, the
question of prejudice to the opposite party may arise and in such event; it is incumbent on
the part of the Court to satisfy the conditions prescribed in the proviso.
6. With this background, let us consider the application filed by the plaintiff and the
orders passed by the District Court as well as the High Court, We have already stated that
originally the suit was filed against the sole defendant and subsequently the second
defendant came on record as per the order dated 11-7-2003. It is the case of the plaintiff
that he is the absolute owner of the suit schedule lands. It is not in dispute that prior to
filing of the suit, notices were exchanged between the parties. In their reply dated 18-8-
2001 to the plaintiffs notice, it was specifically asserted that the first respondent herein,
namely M/s. S. K. Sarwagi and Co. Pvt. Ltd. is carrying on mining activities in the suit
schedule lands. The perusal of the reply notice issued by D-23 to the plaintiff, which has
been extracted by the High Court in the impugned order, clearly shows that the plaintiff
was made known that the suit lands were in possession of D-2 having taken them on lease
from the Government. With the said information in the reply notice about the mining
being carried on by D-2, the plaintiff filed the said suit without impleading him for
possession and damages.
7. The other relevant fact to be noted is the plea taken in the written statement filed by D-
1 wherein, it is specifically stated that the suit schedule lands are classified as poramboke
lands in survey and settlement operations and that the Government issued
@page-SC2306
G.O. Ms. No. 459 (Industries and Commerce) Department, dated 28-11-1988 leasing out
an extent of 18.35 hectares of land covered under Survey Nos. 106 and 107 of Ayitham
Valasa Village in favour of A. P. Mineral Development Corporation for mining purpose
for twenty years. It is further averred that the Government in G.O. Ms. No. 102
(Industries and Commerce) Department, dated 20-2-2001 issued Orders transferring the
mining lease held by A. P. Mineral Development Corporation in favour of M/s. Sarwagi
and Co. Pvt. Ltd. for the unexpired period of lease, i.e. upto 1-6-2019. As rightly
observed by the High Court, it is explicit from the written statement filed by D-1 that the
plaintiff was made known of the fact that the Government issued order transferring
mining lease held by A. P. Mineral Development Corporation in favour of M/s. Sarwagi
and Co. P. Ltd. (D-2) and the leased lands are in possession and enjoyment of M/s.
Sarwagi and Co. P. Ltd. As rightly pointed out by the learned counsel for the contesting
respondent, in spite of the plaintiff being put in knowledge of the act of the person in
possession of the suit property did not chose to implead the said M/s. Sarwagi and Co. P.
Ltd. (D-2) which came on record on its own application as D-2 in the suit. It is clear that
in spite of reply notice and specific plea taken in the written statement of D-1, the
plaintiff did not chose to take steps to get the plaint amended suitably and instead allowed
the suit to go on and examined the witnesses on his behalf and cross-examined the
witnesses produced by the defendents. Only during the stage of arguments, the plaintiff
came up with an application under Order VI Rule 17 seeking amendment of the
pleadings. We have already explained the implication of proviso to Rule 17. Though even
after commencement of the trial, parties to the proceedings are entitled to seek
amendment, in the light of the factual details such as clear information in the reply notice
prior to the filing of the suit and specific plea in the written statement of D-1 which
contained details of Government Orders leasing out the suit property in favour of D-2, the
action of the plaintiff at the stage of argument cannot be permitted. Admittedly, the
plaintiff failed to adhere to the said recourse at the appropriate time. Further it is relevant
to point out that in the original suit, the plaintiff prayed for declaration of his exclusive
right to do mining operations and to use and sell the suit schedule property and in the
petition filed during the course of the arguments, he prayed for recovery of possession
and damages from the second defendant. It is settled law that the grant of application for
amendment be subject to certain conditions, namely, (i) when the nature of it is changed
by permitting amendment; (ii) when the amendment would result introducing new cause
of action and intends to prejudice the other party; (iii) when allowing amendment
application defeats the law of limitation. The plaintiff not only failed to satisfy the
conditions prescribed in proviso to Order VI Rule 17 but even on merits his claim is
liable to be rejected. All the relevant aspects have been duly considered by the High
Court and rightly set aside the order dated 10-3-2004 of the Additional District Judge.
8. In the result, we find no merit in the appeal and the same is dismissed. There shall be
no order as to costs.
Appeal dismissed.
AIR 2008 SUPREME COURT 2306 "Bhupendra v. State of Maharashtra"
(From : Bombay)*
-2008
Bhupendra v. State of Maharashtra and Anr.
(A) Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug
Offenders and Dangerous Persons Act (55 of 1981), S.3 - PREVENTIVE DETENTION -
Preventive detention - "Law and order" and "public order" - Distinction.
The true distinction between the areas of law and order and public order lies not merely
in the nature or quality of the act, but in the degree and extent of its reach upon society.
Acts similar in nature, but committed in different contexts and circumstances, might
cause different reactions. In one case it might affect specific individuals only, and
therefore, touches the problem of law and order only, while in another it might affect
quality it may not differ from other similar acts, but in its potentiality, that is,
@page-SC2307
in its impact on society, it may be very different. (Para 12)
The two concepts have well defined contours, it being well established that stray and
unorganised crimes of theft and assault are not matters of public order since they do not
representing public order and the smallest circle represents the security of State. "Law
and order" comprehends disorders of less gravity than those affecting "public order" just
State". (Para 13)
(B) Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug
Offenders and Dangerous Persons Act (55 of 1981), S.3 - DETENTION - Detention order
- Proximity between incident and order - Act empowers detention of habitual offenders -
Instances, therefore, may not be of immediate proximity - Detenu alleged to be often
hired by anti-social elements - Remains always in possession of deadly weapons along
with his associates - Incidents alleged not of remote past - Cannot be said that live link
between order and instances have snapped - Order of detention valid. (Para 14)
AIR 1980 SC 1111 : 1980 Cri LJ 793 (Ref.) 13
AIR 1974 SC 156 : 1975 Cri LJ 543 (Ref.) 13
AIR 1974 SC 1214 : 1974 Cri LJ 917 (Ref.) 11
AIR 1973 SC 197 : 1974 Cri LJ 395 (Ref.) 11
AIR 1972 SC 665 : 1972 Cri LJ 482 (Ref.) 10
AIR 1972 SC 1656 : 1972 Cri LJ 1006 (Ref.) 8
AIR 1970 SC 1228 : 1970 Cri LJ 1136 (Ref.) 10, 11
AIR 1970 SC 852 : 1970 Cri LJ 852 (Ref.) 10
AIR 1972 SC 1749 (Ref.) 10
AIR 1966 SC 740 : 1966 Cri LJ 608 (Ref.) 9
Anantbhushan Kanade, R.K. Gupta and Aribam Guneshwar Sharma, for Appellant;
Shekhar Nephade, Sr. Advocate, Ravindra Keshavrao Adsure, for Respondents.
* SCA No. 1962 of 2001, D/- 18-7-2001 (Guj.)
Judgement
1. Dr. ARIJIT PASATAT, J. :- Leave granted.
2. Challenge in this appeal is to the judgment of the Division Bench of the Bombay High
Court dismissing the Habes Corpus Petition filed under Article 226 of the Constitution of
India. 1950 (in short the 'Constitution') by one Bhupendra (hereinafter referred to as the
'detenu')
3-4. Prayer in the writ petition was to quash and set aside the decision and order passed
by the District Magistrate, Ahmednagar dated 23-4-2007 and the decision and order
passed by the Under Secretary to the Government of Maharashtra, Home Department
(Special) by order dated 12-6-2007. The order of detention was passed by the respondent
No.2 in purported exercise of powers conferred under Section 3(2) of the Maharashtra
Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and
Dangerous Persons Act, 1981 (in short the 'Act'). The detaining authority detained detenu
under the Act. Grounds of detention were served on 23-4-2007. Several acts of the detenu
were highlighted which according to the detaining authority warranted detention.
The appellant primarily took the stand that the order of detention indicated cases relating
to law and order situation and had nothing to do with maintenance of public order and
were stale to be considered relevant for the purpose of detention. It was submitted that
there was no material to show that the alleged acts of the detenu disturbed the even tempo
of life. The High Court did not find any substance and noted that the several offences
were registered from 2005 till a few days before the order of detention. Preventive action
taken against the detenu proved to be ineffective, he was called upon to execute bonds on
various dates, but even after executing bonds for good behavior for a period of three
years, the detenu breached the conditions of bond and the
@page-SC2308
show cause notice was issued. In Camera statement of witnesses reference was made to
an incident of 24-3-2001 and taking into account the activities of the detenu in the past
there was a live link between the activities of the detenu and the date of passing of the
impugned order of detention. This observation came to be made because of the stand of
the detenu that there was no live link. Ultimately the habeas corpus petition was
dismissed.
In support of the appeal learned counsel for the appellant submitted that there was no live
link. Reference was made to some of the incidents which allegedly took place in 2005
and in any event when preventive action in terms of Section 107 of the Code of Criminal
Procedure, 1973 (in short the 'Cr. P. C.') and Section 110 Cr. P. C. have been taken, there
was no need for passing the order of detention. It was also pointed out that the alleged
acts at the most related to law and order situation and having nothing to do with public
order. It was further submitted that the statement of in camera witnesses should not have
been relied upon by the detaining authority without forming an opinion as to whether that
they represented the truth.
5. Learned counsel for the respondent State and its functionaries on the other hand
supported the order of detention.
6. The order of detention shows that the appellant is often hired on payment by anti social
elements for commission of violent crimes. The detenu and his associates always
possessed deadly weapons and the instances highlighted related to 1-5-2005, 1-6-2005
and 24-2-2006 and a dispute between a particular community and the builders over the
possession of land and the activities of the detenu, and lastly on 24-3-2007 it has been
noted that serious riotous situation developed at a particular high school ground where
hundreds of members of a particular community had assembled. It resulted in intense fear
and panic situation because of the activities of detenu. It was also pointed out in the order
of detention that various preventive action taken under Sections 107 and 110 Cr. P. C.
yielded no positive results and the detenu continued his violent and criminal activities.
Reference was also made to the witnesses who were examined in camera. So far as the
truthfulness of these witnesses are concerned reference was made to Section 8(2) of the
Act which permits withholding the statement of certain witnesses in public interest.
7. The crucial issue is whether the activities of the detenu were prejudicial to public order.
While the expression 'law and order' is wider in scope inasmuch as contravention of law
always affects order. 'Public order' has a narrow ambit, and public order could be affected
by only such contravention which affects the community or the public at large. Public
order is the even tempo of life of the community taking the country as a whole or even a
specified locality. The distinction between the areas of 'law and order' and 'public order' is
one of the degree and extent of the reach of the act in question on society. It is the
potentiality of the act to disturb the even tempo of life of the community which makes it
prejudicial to the maintenance of the public order. If a contravention in its effect is
confined only to a few individuals directly involved as distinct from a wide spectrum of
public, it could raise problem of law and order only. It is the length, magnitude and
intensity of the terror wave unleashed by a particular eruption of disorder that helps to
distinguish it as an act affecting 'public order' from that concerning 'law and order'. The
question to ask is: "Does it lead to disturbance of the current life of the community so as
to amount to a disturbance of the public order or does it affect merely an individual
leaving the tranquillity of the society undisturbed?" This question has to be faced in every
case on its facts.
8. "Public order" is what the French call 'order publique' and is something more than
ordinary maintenance of law and order. The test to be adopted in determining whether an
act affects law and order or public order, is : Does it lead to disturbance of the current life
of the community so as to amount to disturbance of the public order or does it affect
merely an individual leaving the tranquillity of the society undisturbed? (See Kanu
Biswas v. State of West Bengal (AIR 1972 SC 1656).
9
. "Public order" is synonymous with public safety and tranquility : "it is the absence of
disorder involving breaches of local significance in contradistinction to national
upheavals, such as revolution, civil strife, war, affecting the security of the State". Public
order if disturbed, must lead to public disorder. Every breach of the peace AIR 1966 SC
740
@page-SC2309
does not lead to public disorder. When two drunkards quarrel and fight there is disorder
but not public disorder. They can be dealt with under the powers to maintain law and
order but cannot be detained on the ground that they were disturbing public order.
Disorder is no doubt prevented by the maintenance of law and order also but disorder is a
broad spectrum, which includes at one end small disturbances and at the other the most
serious and cataclysmic happenings. (See Dr. Ram Manohar Lohia v. State of Bihar and
Ors. (1966 (1) SCR 709)).
10
. 'Public Order', 'law and order' and the 'security of the State' fictionally draw three
of the State. The true test is not the kind, but the potentiality of the act in question. One
act may affect only individuals while the other, though of a similar kind, may have such
an impact that it would disturb the even tempo of the life of the community. This does not
mean that there can be no overlapping, in the sense that an act cannot fall under two
concepts at the same time. An act, for instance, affecting public order may have an impact
that it would affect both public order and the security of the State (See Kishori Mohan
Bera v. The State of West Bengal (1972(3) SCC 845); Pushkar Mukherjee v. State of
West Bengal (1969 (2) SCR 635); Arun Ghosh v. State of West Bengal (1970 (3) SCR
288); Nagendra Nath Mondal v. State of West Bengal (1972 (1) SCC 498)). AIR
1972 SC 1749
AIR 1970 SC 852
AIR 1970 SC 1228
AIR 1972 SC 665
11
. The distinction between 'law and order' and 'public order' has been pointed out
succinctly in Arun Ghosh's case (supra). According to that decision the true distinction
between the areas of 'law and order' and 'public order' is "one of degree and extent of the
reach of the act in question upon society". The Court pointed out that "the act by itself is
not determinant of its own gravity. In its quality it may not differ but in its potentiality it
may be very different". (See Babul Mitra alias Anil Mitra v. State of West Bengal and
Ors. (1973 (1) SCC 393), Milan Banik v. State of West Bengal (1974 (4) SCC 504).
AIR 1973 SC 197
AIR 1974 SC 1214
12. The true distinction between the areas of law and order and public order lies not
merely in the nature or quality of the act, but in the degree and extent of its reach upon
society. Acts similar in nature, but committed in different contexts and circumstances,
might cause different reactions. In one case it might affect specific individuals only, and
therefore touches the problem of law and order only, while in another it might affect
quality it may not differ from other similar acts, but in its potentiality, that is, in its impact
on society, it may be very different.
13
. The two concepts have well defined contours, it being well established that stray and
unorganized crimes of theft and assault are not matters of public order since they do not
representing public order and the smallest circle represents the security of States. "Law
and order" comprehends disorders of less gravity than those affecting "Public order" just
State". See Kuso Sah v. The State of Bihar and Ors. (1974 (1) SCC 185), Harpreet Kaur
v. State of Maharashtra (1992 (2) SCC 177), T.K. Gopal v. State of Karnataka (2000 (6)
SCC 168), State of Maharashtra v. Mohd. Yakub (1980 (2) SCR 1158) and Commissioner
of Police v. C. Anita (2004 (7) SCC 467). AIR 1974 SC 156
1992 AIR SCW 835
2000 AIR SCW 1669
AIR 1980 SC 1111
2004 AIR SCW 4750
14. Coming to the question of live link it is to be noted that the provision empowering
detention relates to habitual activities of the proposed detenu. Therefore there has to be
instance which may not be of immediate proximity but may indicate that pattern. In the
instant case the incidence cannot be said to be of remote past to warrant conclusion
@page-SC2310
of the absence of live link.
15. Further Section 8(2) of the Act permits withholding of identity of the witnesses. We
therefore, find no substance in this appeal, which is accordingly dismissed.
Appeal dismissed.
AIR 2008 SUPREME COURT 2310 "Tarakanath Kar v. Lipika Kar"
(From : Calcutta)*
Criminal A. No. 836 of 2008 (arising out of (Cri.) No.3857 of 2006), D/- 7 -5 -2008.
Tarakanath Kar v. Lipika Kar.
Criminal P.C. (2 of 1974), S.401, S.125 - REVISION - MAINTENANCE - Revision -
Powers - Petition against refusal of maintenance on ground that applicant was not legally
wedded wife - Revisional Court while dealing with application for maintenance cannot
decide culpability of husband for offence of bigamy - Directions issued by revisional
Court to initiate departmental proceedings against husband - Beyond its jurisdiction.
CRAN No. 593 of 2005, D/-05-07-2006 (Cal), Reversed. (Para 7)
Bijoy Adhikary, Sr. Advocate, Subrata Bhattacharya, Shree Pal Singh, Rahul Singh, for
Appellant; Mrs. K. Sarada Devi, for Respondent.
* CR. A. N. No. 593 of 2005, D/-5-7-2006 (Cal).
Judgement
2. Challenge in this appeal is to the order passed by a learned Single Judge of the Calcutta
High Court in CRR No.970 of 2000 dated 19-1-2005 and order passed in the application
for clarification or modification of the order dated 19-1-2005.
3. Background facts as projected by the appellant are as follows :
Appellant and one Chandana entered into a wedlock on 16-2-1993 and were blessed with
two sons. On 16-9-1995 respondent-Lipika filed a case No.320/95, under Section 125 of
the Code of Criminal Procedure, 1973 (in short 'Code') claiming to be wife of the
appellant and prayed for maintenance. The said case was filed in the Court of SDJM,
West Bengal. On 9-7-1997, the said case was transferred to the Court of SDJM Suri, by
order of learned CJM at Birbhum. On 13-8-1997 Chandana appeared before the SDJM,
Suri and filed application for being impleaded in the proceedings. On 14-1-1998 learned
SDJM passed an ex parte order of maintenance in favour of the Lipika granting her
maintenance @ Rs.400/- p.m. On 27-8-1999 Criminal Revision case No.308/99 was filed
by the appellant against Lipika's misc. execution case No. 413/1998 arising out of ex
parte order referred to above. The ex parte order was set aside by the High Court and
learned SDJM was directed to decide the matter afresh. On 10-1-2000 learned SDJM
dismissed the application under Section 125 Cr.P.C. filed by Lipika holding that
Chandana is the legally married wife of Tarak and Lipika is not legally married wife of
the appellant. The revision petition filed by Lipika was allowed by the learned Single
Judge in CRR No.970 of 2000 and the order of learned SDJM was set aside. There were
certain directions given in the said petition, the correctness of which was questioned by
the appellant by filing an application for modification/clarification. It was the specific
stand of the appellant that the directions in question could not have been given i.e. to
initiate departmental proceedings against the appellant.
The said application was dismissed by the subsequent order dated 5-7-2006 holding that
in view of the provisions of Section 362 of the Code the application was not
maintainable.
4. Learned counsel for the appellant submitted that the directions as given are clearly
beyond the jurisdiction of the High Court while exercising revisional jurisdiction under
the Code. Learned counsel for the respondent supported the order of the High Court
stating that the directions have been given keeping the ultimate objective of doing justice
to the parties.
5. In the present appeal we are concerned with the legality of the direction given by the
learned Single Judge for initiation of the departmental proceedings. The impugned
direction read as follows :
"Before conclusion I think that it would
@page-SC2311
be expedient for the interest of justice to take appropriate action against the Opposite
Party Taraknath Kar. It appears from the materials on record that Opposite Party
Taraknath Kar is a Group - D employee of Durgapur Court and he is a government
servant. In T.S. No.200/94 filed by him before learned Munsif, 1st Court, Durgapur the
Opposite Party stated that he is unmarried and there was no marriage between him and
defendant Lipika Kar. He filed the suit for declaration that Lipika Kar is not his wife.
Subsequently, in CRR No. 1742/95 filed by him and others praying for quashing of
criminal case being C.R. No. 124/95 under Section 498A of IPC it was mentioned in
paragraph 1 that he is the husband of Opposite Party No. 1 Lipika Kar and in paragraph
4(a) of the said revisional application it was mentioned that on 17-3-94 his marriage with
Opposite Party No. 1 was solemnized. Before the learned SDJM, Suri in Misc. Case
No.320/95 by producing certified copy of order sheet of learned Judicial Magistrate, 4th
Court, Bankura, this Opposite Party Taraknath Kar introduced the story that he was
married with Chandana Kar on 16-2-93 and a Misc. Case No.153/ 97 of learned Judicial
Magistrate, 4th Court, Bankura Maintenance order under Section 125 of the Code had
been passed against him. It is, therefore, apparent from the papers and documents that
this Opposite Party has introduced papers before Court regarding his marriage twice -
once with Chandana Kar on 16-2-93 and another marriage with Lipika Kar on 7-3-94.
Being an employee of Court and a government servant Opposite Party is not entitled to
marry twice without obtaining permission of Appointing Authority. The conduct of the
Opposite Party whether is unbecoming of a government servant, or not, as being a Hindu
he cannot marry twice under present law, should be considered by the Appointing
Authority and Disciplinary Authority. Accordingly, learned District Judge, Burdwan
being the Appointing Authority and Disciplinary Authority is directed to take necessary
disciplinary action against Opposite Party Taraknath Kar for his alleged marriage twice
and if he finds that papers and documents are satisfactory for placing him under
suspension he shall take necessary steps in accordance with law for starting the
disciplinary action and for consideration whether Taraknath Kar would be placed under
suspension.
Learned Registrar (Administration) is directed to send a copy of this order to the learned
District Judge, Burdwan for information and necessary action accompanied by copy of
revisional application of CRR No. 1742/95, copy of plaint of T.S. No.200/ 94 filed by the
Opposite Party copy of application filed by Lipika Kar and written show-cause and
annexures filed by Taraknath Kar of Misc. Case No.320/95 under Section 125 of the
Code pending before learned SDJM, Suri and also copy of exhibit G-Series filed before
the learned SDJM, Suri in connection with aforesaid Misc. Case for information and
necessary action. The learned Registrar (Administration) may also instruct the learned
SDJM, Suri to send copy/Xerox copy of application under Section 125 of the Code of
Misc. Case No.320/95 of this Court, copy of written show-cause and annexures filed by
the Opposite Party in connection with the said Misc. Case No.320/95 and copy of exhibit
G-Series of that case to him so that after collection of all the papers and documents he
can send the said papers and documents to the learned District Judge, Burdwan for taking
necessary action in the matter."
6. In the subsequent order dated 5-7-2006 the High Court highlighted the limited
jurisdiction for rectification/modification under Section 362 of the Code.
7. It appears that the High Court while dealing with the application under Section 125 of
the Code has essentially adjudicated that an offence punishable under Section 494 of the
Indian Penal Code, 1860 (in short the 'IPC') is made out. It needs to be noted that a Title
Suit (TS 200/94) filed in the Durgapur Civil Court is pending where prayer was made for
declaration that the respondent was not his wife. Whether there was a second marriage as
contended and whether Lipika was his wife as claimed by her or Chandana was the wife
of the appellant as claimed by him has yet to be decided. While exercising revisional
jurisdiction it was not open to the High Court to give direction for initiation of
departmental proceedings. Such a direction is beyond the scope of revisional jurisdiction
under the
@page-SC2312
Code. Therefore, the High Court was clearly in error in directing initiation of
departmental proceedings; while dealing with an application for revision in the matter
relating to Section 125 of the Code. The directions given in this regard both in the
original order and the subsequent order stand quashed.
Appeal allowed.
AIR 2008 SUPREME COURT 2312 "Dharampal v. U. P. State Road Transport
Corporation"
(From : Uttarakhand)*
Coram : 2 S. B. SINHA AND Dr. MUKUNDAKAM SHARMA, JJ.
-2008.
Dharampal and Ors. v. U. P. State Road Transport Corporation.
Motor Vehicles Act (59 of 1988), S.171 - MOTOR VEHICLES - INTEREST - Accident
compensation - Interest payable thereon - Rate of interest - Depends on bank rate
prevalent at relevant time - Award passed in 2005 - Prevailing rate of bank interest was
7.5% - Claimants held, therefore, entitled to interest @ 7.5% p.a. (Para 14)
2004 AIR SCW 737 : AIR 2004 SC 1581 (Ref.) 9
2003 AIR SCW 1266 : AIR 2003 SC 1817 (Ref.) 12
2002 AIR SCW 2920 : AIR 2002 SC 2607 (Ref.) 11
2001 AIR SCW 85 : AIR 2001 SC 485 : 2001 All LJ 166 (Ref.) 10, 11
Yunus Malik, Abhishek Vikas, Ravi Kishore and Prashant Chaudhary, for Appellant; Ms.
Sangeeta Kumar and Ashwani Garg, for Respondent.
* A.F.O. (A.O.) No. 102 of 2007, D/- 22-3-2007 (UTR).
Judgement
1. Dr. MUKUNDAKAM SHARMA, J. :- Leave granted.
2. The present appeal revolves around a very short issue, namely, the quantum of interest
to be awarded on the compensation awarded to the legal representatives of the deceased
who died in an accident. Before we deal with the issue that arises for our consideration,
we will deal with the factual matrix out of which the aforesaid issue arises.
3. Deceased, Pradeep Kumar was driving a motorcycle along with his wife, two minor
daughters and a minor son. When they reached village Dadiaki on the Muzaffarnagar-
Roorkee Road, Bus No. UP15L 7640, allegedly driving at a very high speed, rashly and
negligently, hit the motorcycle. All the five persons travelling on the motorcycle died on
the spot due to the aforesaid accident. The driver of the bus fled away from the place of
occurrence immediately after the accident, leaving behind the bus. The age of the
deceased Pradeep Kumar was 28 years and as per appellants he was earning an amount of
Rs. 4,200/- per month. The appellants filed a petition No.202 of 2004 before the Motor
Accident Claims Tribunal, Udham Singh Nagar, Rudrapur. Several witnesses were
examined. On perusal of the evidence on record the Tribunal passed a judgment and
awarded Rs.3,50,100/- as compensation to the appellants along with interest @ 6% per
annum from the date of application till the date of payment. The Tribunal upon
consideration of the evidence held that the deceased was earning Rs.2,400/- per month
and not Rs.4,200/- as claimed. Being aggrieved by the aforesaid award of the Motor
Accident Claims Tribunal the appellants preferred an appeal being Appeal No. 102 of
2007 in the High Court of Uttarakhand at Nainital contending inter alia that it was clearly
proved that the deceased was doing a work of mason and was earning Rs.4,200/- and the
Tribunal erred in determining the income of the deceased on the presumption that the job
of the mason is not available everyday. Challenge was made in the said appeal also in
respect of the interest awarded contending inter alia that the rate of interest was on the
lower side and the Tribunal should have awarded higher rate of interest.
4. The respondent - UP State Road Transport Corporation also filed an appeal which was
registered as Appeal No.386 of 2005. Both the aforesaid appeals were taken up for
consideration together as the issues that arose for consideration were similar. The
Division Bench of the Uttarakhand High Court considered the evidence on record and
@page-SC2313
dismissed the appeal filed by the respondent - UP State Road Transport Corporation
whereas the appeal filed by the appellants was allowed to the extent that the appellants
were held to be entitled to get a sum of Rs.3,70,000/- instead Rs.3,51,100/- as awarded by
the Tribunal for the death of Pradeep Kumar. So far as the rate of interest is concerned,
the High Court also maintained the interest at 6 % p.a. which was awarded by the
Tribunal holding that the said rate of interest does not require any interference. The High
Court directed the State Road Transport Corporation to deposit the enhanced amount of
compensation within two months with interest, with the Tribunal.
5. The appeal is now filed by the appellants in this Court in respect of the quantum of
compensation awarded as also in respect of the rate of interest which was awarded by the
Tribunal as also by the High Court.
6. Learned counsel appearing for the appellants, at the time of arguments fairly stated
before us that he would advance his arguments only in respect of the interest and would
not like to press for the enhancement of quantum of compensation in terms of the prayers
made in the memorandum of appeal.
7. Accordingly, we heard the learned counsel for the appellants only in respect of the
issue of enhancement of rate of interest awarded by the Tribunal and also by the High
Court, which is awarded and maintained as 6% per annum. Counsel for the appellants
submitted before us that there are ample number of cases decided by this Court for such
claim of enhancement of rate of interest and in some cases the rate of interest has been
consistently awarded by this Court at 9% per annum considering the claim of this nature.
The counsel for the respondent - UP State Road Transport Corporation pointed out that
this is not a case for enhancement so far as the rate of interest is concerned, inasmuch as
the prevailing rate of interest on bank deposit was only 6.5%.
8. As per section 171 of the Motor Vehicles Act, 1988 (hereinafter referred as 'Act') where
the claim for compensation made under the Act is allowed by the Claims Tribunal, the
tribunal may direct that in addition to the amount of compensation simple interest shall
also be paid at such rate from such date not earlier than the date of making claim.
9
. In National Insurance Co. Ltd. vs. Keshav Bahadur reported in (2004) 2 SCC 370 this
court has held that the provisions require payment of interest in addition to compensation
already determined. Even though the expression "may" is used, a duty is laid on the
Tribunal to consider the question of interest separately with due regard to the facts and
circumstances of the case. It was clearly held in the said decision that the provision of
payment of interest is discretionary and is not and cannot be bound by rules. 2004
AIR SCW 737
10
. Interest is compensation for forbearance or detention of money, which ought to have

been paid to the claimant. No rate of interest is fixed under section 171 of the Act and the
duty has been bestowed upon the court to determine such rate of interest. In order to
determine such rate we may refer to the observations made by this court over the years.
In the year 2001 in the case of Kaushnuma Begaum (Smt.) and others vs. New India
Assurance Co. Ltd. and others, reported in (2001) 2 SCC 9 on the question of rate of
interest to be awarded it was held that earlier, 12% was found to be the reasonable rate of
simple interest but with a change in economy and the policy of Reserve Bank of India the
interest rate has been lowered and the nationalized banks are now granting interest @ 9%
on fixed deposits for one year. Accordingly, interest @ 9% was awarded in the said case.
We may at this stage also refer to the following observations of their Lordships in the
aforesaid decision which are relevant to the present case : 2001 AIR SCW 85
"24. Now, we have to fix up the rate of interest. Section 171 of the MV Act empowers the
Tribunal to direct that 'in addition to the amount of compensation simple interest shall
also be paid at such rate and from such date not earlier than the date of making the claim
as may be specified in this behalf'. Earlier, 12% was found to be the reasonable rate of
simple interest. With a change in economy and the policy of Reserve Bank of India the
interest rate has been lowered. The nationalized banks are now granting interest at the
rate of 9% on fixed deposits for one year. We, therefore, direct that the compensation
amount fixed hereinbefore shall bear interest at the rate of 9% per annum from the date of
the claim made by
@page-SC2314
the appellants........"
11
. In the year 2002, in United India Insurance Co. Ltd. and others vs. Patricia Jean
Mahajan and others, reported in (2002) 6 SCC 281 this Court held that the interest is
payable on the equitable grounds to the aggrieved person who is deprived of using the
money which is due and payable to him. Following the observations made in the case of
Kaushnuma Begum (supra) interest @ 9 % was awarded in this case also. It was held as
follows :- 2002 AIR SCW 2920
2001 AIR SCW 85
"In our view the reason indicated in the case of Kaushnuma Begum (supra) is a valid
reason and it may be noticed that the rate of interest is already on the decline. We
therefore, reduce the rate of interest to 9% in place of 12% as awarded by the High
Court."
12
. In the year 2003 in the case of Abati Bezbaruah v. Dy. Director General, Geological
Survey of India and Another, reported in (2003) 3 SCC 148 it was held that the question
as to what should be the rate of interest, in the opinion of this court, would depend upon
the facts and circumstances of each case. Award of interest would normally depend upon
the bank rate prevailing at the relevant time. After referring to the aforementioned
decisions interest @ 9% was awarded in the said case. 2003 AIR SCW 1266
13
. However, in the year 2005 in Tamil Nadu State Transport Corpn. Ltd. vs. S. Rajapriya,
reported in (2005) 6 SCC 236 this Court again taking note of the then prevailing rate of
interest on bank deposits directed for lowering the rate of interest fixed by the Tribunal at
9% per annum and altered the same to 7.5% per annum. 2005 AIR SCW 2542
14
. In the backdrop of the aforesaid legal position, we may now examine the facts of the
present case. The accident in the present case had taken place on 1-9-2004 and the
Tribunal had passed the award on 18-5-2005. Rate at which the interest is to be awarded
would normally depend upon the bank rate prevailing at the relevant time. Since in the
case of State of Tamil Nadu v. State Transport Corpn. Ltd. (supra) decided in the month
of April, 2005, the prevailing rate of interest on bank deposits was found and held to be
7.5% per annum, we consider it appropriate to award the same rate of interest, as the
same was the prevailing rate of interest on the date of the passing of the award i.e. 18-05-
2005 in the present case. Consequently, we hold that the appellants would be entitled to
be paid interest at the rate of 7.5% from the date of application till the date of payment.
2005 AIR SCW 2542
15. In terms of the above directions and observations the appeal stands disposed of
directing the payment of interest at the aforesaid rate. So far as the issue with regard to
enhancement of compensation is concerned, the same was not pressed before us and
consequently the prayer for enhancement of quantum of compensation as raised in the
memorandum of appeal stands dismissed. However, in the circumstances of the case
there will be no order as to costs.
Order accordingly.
AIR 2008 SUPREME COURT 2314 "Siriya v. State of M. P."
-2008.
Siriya alias Shri Lal v. State of M. P.
(A) Penal Code (45 of 1860), S.376 - RAPE - Rape - Sentence - Rape by father - Is an
unpardonable act - It is not only a loathsome sin but also abhorrent - Accused's act have
left an indelible scar both physically and mentally on victim - Father deserves no leniency
in punishment. (Para 12)
(B) Criminal P.C. (2 of 1974), S.248 - WARRANT CASE - PENOLOGY - Penology -
Sentencing system - Law should adopt corrective machinery or deterrence based on
factual matrix - Undue sympathy to impose inadequate sentence - Does more harm to
justice system. (Paras 7, 8)
2007 AIR SCW 5841 : AIR 2007 SC 3225 : 2007 Cri LJ 4700 : 2007 (6) AIR Kar R 212
11
@page-SC2315
2006 AIR SCW 436 : 2006 Cri LJ 1132 11

(1971) 402 US 183 : 28 Law Ed 2d 711 (Ref.) 10
Kanhaiya Priyadarshi, SCLSC, for Appellant; C.D. Singh, Merusagar Samantray, Sunny
Choudhary, for Respondent.
* Cri. Appeal No. 441 of 2005, D/- 18-1-2007 (MP).
Judgement
There can never be more shocking, depraved and heinous crime than when the father is
charged of having raped his own daughter. He not only delicts the law but, it is a betrayal
of trust. The father is the fortress and refuge of his daughter in whom the daughter
reposes trust to protect her. Charged of raping his own daughter under his refuge and
fortress is worse than the gamekeeper becoming a poacher and treasury guard becoming a
robber.
2. The appellant questioned his conviction for offence punishable under Section 376 of
the Indian Penal Code, 1860 (in short the 'IPC') as recorded by the learned Sessions
Judge, Guna and sentence of imprisonment for life and fine of Rs.1,000/-with default
stipulation before the Madhya Pradesh High Court.
3. The High Court affirmed the conviction and the sentence.
4. Sans unnecessary details the background facts are as follows :
The prosecutrix is the daughter of the appellant. The mother of the prosecutrix had died
about 3 years back prior to the date of incident i.e. 5-2-2004. At the time of incident, the
prosecutrix was residing with her father along with her three brothers. On 5-2-2004 the
appellant took the prosecutrix (PW-4) aged around 13 years on his cycle to Raghogarh to
purchase clothes for her. At around 3 p.m., the prosecutrix was coming back with him on
his cycle when on the way, the appellant stopped his cycle near "Bawdi Kheda Ashram".
Appellant then took the prosecutrix to a dilapidated house situated there and removed the
clothes of the prosecutrix. When the prosecutrix cried, the appellant slapped her and
forcibly committed rape on her. At that time, three persons - witnesses Kamarjeet,
Promod and Suresh who were passing by, heard the shrieks of the prosecutrix, went
inside the room and separated the appellant from the prosecutrix. Then, these witnesses
took the prosecutrix and the appellant to the police station Vijaypur where the prosecutrix
(PW-4) lodged the first information report (Ex. P-4) against the appellant. The
prosecutrix (PW-4) was sent for medical examination. Dr. Chhaya Sharma (PW-2)
examined the prosecutrix and found that her sexual character had started developing,
pubic hairs were scanty and on internal examination, found old hymen ruptured at 11
o'clock position including the redness over it's posterior side. On the basis of this
examination, the doctor opined that possibility of rape could not be denied. The vaginal
swab of the prosecutrix was prepared and the panty of the prosecutrix was taken by the
doctor and the same was sealed and handed over to the police for chemical examination.
For confirmation of the age of the prosecutrix, her x-ray was taken and as per the x-ray
report (Ex.P-1) the age of the prosecutrix was found above 17 years and below 19 years.
The appellant was arrested and he was also sent for medical examination. According to
his medical report (Ex.P-3), the appellant was found competent to perform sexual
intercourse. Thus, according to the prosecution, the appellant committed rape on the
prosecutrix (PW-4), who is his own daughter. After investigation, charge-sheet was filed.
After committal of the case, charge under Section 376(1) of I.P.C. was framed against the
appellant. The accused took the plea of false implication which was not accepted by the
trial Court. He was convicted and sentenced as aforestated. He preferred an appeal before
the High Court. Before the High Court it was the stand of the appellant that his brother
wanted to grab land and property and, therefore, the prosecutrix was under his influence
and on being tutored had deposed falsely against the appellant. It was also stated that
three other witnesses had deposed under the influence of the villagers. It was stated that it
is unnatural that the father would sexually assault his daughter. It is also stated that the
High Court without analyzing the evidence dismissed the appeal. In support of the
appeal, the stands taken before the trial Court and the High Court were reiterated. It was
submitted that the age of the prosecutrix was about 12 years at the time of incidence. The
mother of the prosecutrix had died and, therefore, to look after her well being reduction
in sentence should be given. Learned counsel for the State supported the judgment and
submitted that nothing more degrading could have
@page-SC2316
been done by a father and, therefore, no leniency is called for.
5. The case at hand shows to what bottomless pit speed of depravation and lust a person
can go down. As indicated at the threshold, the custodian of the trust has betrayed the
same. The father is supposed to protect the dignity and honour of his daughter. This is a
fundamental facet of human life. If the protector becomes the violator, the offence
assumes a greater degree of vulnerability. The sanctity of father and daughter relationship
gets polluted. It becomes an unpardonable act. It is not only a loathsome sin, but also
abhorrent. The case at hand is a sad reflection on the present day society where a most
platonic relationship has been soiled by the pervert and degrading act of the father. The
evidence on records clinchingly nails the appellant as the offender.
6. The next question is whether any lenience in sentence is called for.
7. The law regulates social interests, arbitrates conflicting claims and demands. Security
of persons and property of the people is an essential function of the State. It could be
achieved through instrumentality of criminal law. Undoubtedly, there is a cross cultural
conflict where living law must find answer to the new challenges and the courts are
required to mould the sentencing system to meet the challenges. The contagion of
lawlessness would undermine social order and lay it in ruins. Protection of society and
stamping out criminal proclivity must be the object of law which must be achieved by
imposing appropriate sentence. Therefore, law as a corner-stone of the edifice of "order"
should meet the challenges confronting the society. Friedman in his "Law in Changing
Society" stated that, "State of criminal law continues to be - as it should be - a decisive
reflection of social consciousness of society". Therefore, in operating the sentencing
system, law should adopt the corrective machinery or the deterrence based on factual
matrix. By deft modulation sentencing process be stern where it should be, and tempered
with mercy where it warrants to be. The facts and given circumstances in each case, the
nature of the crime, the manner in which it was planned and committed, the motive for
commission of the crime, the conduct of the accused, the nature of weapons used and all
other attending circumstances are relevant facts which would enter into the area of
consideration.
8
. Therefore, 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 etc. v. State of Tamil Nadu (1991 (3) SCC 471). 1991 AIR
SCW 1368
9. The criminal law adheres in general to the principle of proportionality in prescribing

liability according to the culpability of each kind of criminal conduct. It ordinarily allows
some significant discretion to the Judge in arriving at a sentence in each case, presumably
to permit sentences that reflect more subtle considerations of culpability that are raised by
the special facts of each case. Judges in essence affirm that punishment ought always to
fit the crime; yet in practice sentences are determined largely by other considerations.
Sometimes it is the correctional needs of the perpetrator that are offered to justify a
sentence. Sometimes the desirability of keeping him out of circulation, and sometimes
even the tragic results of his crime. Inevitably these considerations cause a departure
from just desert as the basis of punishment and create cases of apparent injustice that are
serious and widespread.
10. After giving due consideration to the facts and circumstances of each case, for
deciding just and appropriate sentence to be awarded for an offence, the aggravating and
mitigating factors and circumstances in which a crime has been committed are to be
delicately balanced on the basis of really relevant circumstances in a dispassionate
manner by the Court. Such act of balancing is indeed a difficult task. It has been very
aptly indicated in Dennis Councle MCG Dautha v. State of Callifornia (402 US 183: 28
L.D. 2d 711) that no formula of a foolproof nature is possible that would provide a
reasonable criterion in determining a just and appropriate punishment in the infinite
variety of circumstances that may affect the gravity of the crime. In the absence of any
foolproof formula which may provide any basis for reasonable criteria to correctly assess
various circumstances germane to
@page-SC2317
the consideration of gravity of crime, the discretionary judgment in the facts of each case,
is the only way in which such judgment may be equitably distinguished.
11
. These aspects were highlighted in Shailesh Jasvantbhai and Ann v. State of Gujarat and
Ors. [2006 (2) SCC 359] and State of Karnataka vs. Raju (AIR 2007 SC 3225). 2006
AIR SCW 436
2007 AIR SCW 5841
12. In this case, the accused's lustful acts have indelible scar not only physically but also
emotionally on the victim. No sympathy or leniency is called for.
13. Looked at from any angle the appeal is without merit and deserves to be dismissed
which we direct.
Appeal dismissed.
AIR 2008 SUPREME COURT 2317 "Union of India v. C. N. Vasudevan"
(From : Gujarat)
Union of India and Ors. v. C. N. Vasudevan.
Constitution of India, Art.16 - Passports Act (15 of 1967), S.21 - EQUALITY IN
PUBLIC EMPLOYMENT - PASSPORT - Additional remuneration - Regional Passport
Officer performing functions of Protector of Emigrants - Not an additional duty - Is part
of his normal duty - Officer not entitled to any extra remuneration.
S. C. A. No. 1962 of 2001, D/-18-07-2001 (Guj.), Reversed. (Para 5)
Rekha Pandey, Ms. Sushma Suri and B.V. Balaram Das, for Appellants; Debasis Misra,
for Respondent.
* SCA No. 1962 of 2001, D/- 18-7-2001 (Guj.)
Judgement
JUDGMENT :- Heard learned counsel for the appellant. None appears for the respondent.
2. The question involved in this appeal is as to whether the respondent is entitled to grant
of honorarium/remuneration for the period he worked as Protector of Emigrants over and
above his salary as Regional Passport Officer, Ahmedabad.
3. The respondent was working as a Regional Passport Officer. He was also assigned the
duties and responsibilities of Protector of Emigrants. He filed an O.A. before the Central
Administrative Tribunal praying that since the responsibilities of the Regional Passport
Officer and Protector of Emigrants are quite different, he may be paid an honorarium for
working in the latter capacity. His prayer was allowed by the Tribunal. The High Court,
by its impugned order, affirmed the order of the tribunal. Hence, this appeal by special
leave.
4. We have gone through the counter affidavit filed on behalf of the Regional Passport
Officer, Ahmedabad before the Tribunal. It is stated in paragraph 9 of the counter
affidavit that in all 14 Passport Officers were authorised to perform the functions of
Protector of Emigrants so as to decide whether a person intending to depart from India is
an emigrant or not for the purpose of Emigration Act, 1983. It is also stated that the duties
of Protector of Emigrant were part of the normal duty of the Regional Passport Officer. It
is also stated that the duty of Protector of Emigrant was to be performed by the Regional
Passport Officer during the normal office hours on working days only. It is further
contended that the duties of Protector of Emigrants are being performed by the Passport
Officers and that no additional duty or responsibility has been assigned to them.
According to the said counter affidavit, therefore, there was no question of payment of
honorarium to the Regional Passport Officer who was assigned the duties of Protector of
Emigrants.
5. We agree with the aforesaid contention. Both the High Court and the Tribunal erred in
law as well as in facts in granting honorarium to the respondent. The duties of Protector
of Emigrants under the Emigration Act is part of the normal duties of the Regional
Passport Officer. Hence no extra remuneration has to be paid for the work over and above
the salary as Regional Passport Officer. To give an analogous example, the District
Magistrate/Collector of a district is often also the prescribed authority under various State
and Central Acts for discharging functions under the said Acts. This does not entitle the
District Magistrate/ Collector to any extra remuneration over and above his normal
salary.
6. In the premises aforestated, the orders of the tribunal and of the High Court are set
aside. This appear is allowed. No costs.
Appeal allowed.
@page-SC2318
AIR 2008 SUPREME COURT 2318 "Dinesh M. N. (S. P.) v. State of Gujarat"
(From : Gujarat)*
-2008.
Dinesh M. N. (S.P.) v. State of Gujarat.
(A) Criminal P.C. (2 of 1974), S.437 - BAIL - APPEAL - WORDS AND PHRASES -
Bail - Grant of - No appeal against order of grant of bail can be filed - Use of expression
"appeal in respect of an order of bail" in some judgments is in sense that one can more
higher Court. (Paras 8, 9)
(B) Criminal P.C. (2 of 1974), S.437(1)(i), S.439 - BAIL - Bail - Conditions laid down in
S.437(1)(i) are sine qua non for granting bail even u/S.439.
(C) Criminal P.C. (2 of 1974), S.439(2) - BAIL - EVIDENCE - Bail - Cancellation of -
Application for - Re-appreciation of evidence as done by Court granting ball is to be
avoided - However, Court can consider whether irrelevant materials were taken into
consideration.
AIR 1978 SC 961, AIR 1984 SC 372, 1992 AIR SCW 2621, 1995 (1) SCC 349, 2004
(13) SCC 617, 2004 AIR SCW 527, 2005 AIR SCW 2034, 2005 AIR SCW 4763 and
(D) Criminal P.C. (2 of 1974), S.437, S.439(2) - BAIL - Bail - Parameters for grant of
bail and cancellation of bail are different. (Para 8)
(E) Criminal P.C. (2 of 1974), S.439(2) - BAIL - Bail - Cancellation of - Ground of taking
into consideration irrelevant materials at time of grant of bail - Irrelevant materials should
be of substantial nature - And not of a trivial nature.
(F) Criminal P.C. (2 of 1974), S.439(2) - BAIL - Bail - Cancellation of - Accused, a high
ranking Police Officer, was allegedly involved in fake encounter - Fact that person whom
he killed had shady reputation and criminal antecedents or was hardened criminal is not a
relevant factor - On other hand, filing of FIR allegedly by one of members of his team to
divert attention from fake encounter and presence of accused at time of alleged fake
encounter are relevant factors - Bail granted by taking into account these irrelevant
factors and keeping out relevant materials - Is liable to be cancelled.
2005 AIR SCW 323, Ref. (Paras 14, 15)
1010 (Rel. on) 6
1456 (Rel. on) 6
2005 AIR SCW 4763 : AIR 2005 SC 3490 : 2005 Cri LJ 4149 : 2005 All LJ 3368 (Rel.
on) 6
2004 AIR SCW 527 : AIR 2004 SC 2890 : 2004 Cri LJ 1359 : 2004 AIR- Jhar HCR 1060
(Rel. on) 6
2004 AIR SCW 1581 : AIR 2004 SC 1866 : 2004 Cri LJ 1796 : 2004 AIR- Jhar HCR
1410 (Foll.) 10
(2004) 13 SCC 617 (Rel. on) 6
2002 AIR SCW 1342 : AIR 2002 SC 1475 : 2002 Cri LJ 1849 : 2002 All LJ 961 10
2001 AIR SCW 1935 : AIR 2001 SC 2023 : 2001 Cri LJ 2566 (Rel. on) 10, 13, 14
(1995) 1 SCC 349 (Rel. on) 6
AIR 1978 SC 179 : 1978 Cri LJ 129 13
Soli J. Sorabjee, U.U. Lalit, Sr. Advocates, Ms. Aishwarya Bhati, M.N. Seshadri, P.S.
Dinesh, T.V. Ratnam, Abhishek Gautam, Ms. Rekha, Kashi Vishweshwar, Prabodh
Kumar and Gp. Capt. Karan Singh Bhati, for the Appellants; Dushyant dave, Mukul
Rohtagi, Sr. Advocate, Ms. Huzefa Ahmadi, Pradhuman Gohil, Amit S. Chauhan, Ejaz
Maqbool, Saurav Kripal, Ms. Pinky, Ms. Jesal and Ms. Hemantika Wahi, for the
Respondents.
* Cri. M. A. No. 12644 of 2007, D/- 25-1-2008 (Guj.)
Judgement
Dr. ARIJIT PASATAT, J. :- Leave granted.
@page-SC2319
2. Challenge in this appeal is to the order passed by a learned Single Judge of the Gujarat
High Court cancelling the bail granted to the appellant in terms of Section 439 (2) of the
Code of Criminal Procedure, 1973 (in short the 'Code').
3. The case numbered as Criminal Miscellaneous Application No. 12644/2007 was taken
up along with Criminal Miscellaneous application No. 12646/2007 filed in respect of a
co-accused Narendra K. Amin (the appellant in Criminal Appeal relating to Special Leave
Petition (Crl.) No.788/2008). Both the matters were taken up in view of the order dated
12-12-2007 passed by this Court in Contempt Petition (Crl.) No.8/2007 in Writ Petition
(Crl.) No. 6/2007.
4. The application under Section 439(2) was filed by the State of Gujarat through
Investigating Officer, C.I.D. (Crime), Gandhinagar for cancellation of bail granted to the
appellant by order dated 5-10-2007 by learned Additional City and Sessions Judge,
Ahmedabad in Criminal Miscellaneous Application No.3459/2007 qua FIR being CR No.
I-5/2005 registered with ATS Police Station for the offences punishable under Sections
302, 364, 365, 368, 193, 197, 201, 120B, 420, 342 read with Section 34 of the Indian
Penal Code, 1860 (in short the 'IPC') and under Sections 25 (1)(b)(a) and 27 of the Arms
Act, 1950 (in short the 'Arms Act').
5. Background facts sans unnecessary details are as follows :
The application for cancellation of bail had matrix in FIR being CR No. I-5 of 2005 filed
by one Abdul Rehman, a Police Officer, subordinate to the appellant and now an accused,
who was a member of the Special Investigating Party formed at Udaipur, Rajasthan to
investigate into various offences registered against one Sohrabuddin. As per the above
FIR, said Sohrabuddin, son of Ahwaruddin Shaikh, resident of Zaraniya, Nagda, Madhya
Pradesh, who was accused of offences punishable under Sections 120(b), 121, 121-A,
122, 123, 307, 186, 224 of IPC, under Sections 25(1)(b) and Section 27 of the Arms Act
and under Section 13(1) of the Bombay Police Act. In the above FIR it was stated that the
above accused (Sohrabuddin) was acting at the behest of ISI to spread terror and to
disturb the unity and integrity of the country and also entered into conspiracy by
possessing arms and ammunition so as to kill one of the big leaders of the State of
Gujarat and when asked to surrender by the police party, fired from his revolver and
attempted to kill them.
Later on, Rubabuddin Shaikh, brother of Sohrabuddin, filed petition before this Court
which was registered as Writ Petition (Crl.) No.6 of 2007. Pursuant to the directions
issued from time to time, the Investigation Agency of the State of Gujarat carried out
investigation and it was found by the Investigating Agency that death of Sohrabuddin and
subsequently reported death of Kausarbi, wife of Sohrabuddin, was a result of fake
encounters carried out by the then officers of the Anti-Terrorist Squad (for short 'ATS'),
State of Gujarat and senior IPS officers of State of Gujarat and State of Rajasthan are
involved in the fake encounters. All those officers were arrested and appellant who is
accused No.3 is one of such senior IPS officer belonging to the State of Rajasthan.
During the course of investigation, preliminary inquiry being Inquiry No.66 of 2006 was
instituted by CID (Crime), Gujarat State, role of the appellant surfaced in the statement of
one Ajay Parmar, Police Constable of ATS, Gujarat State. Considering the material which
had come on record, the Director General of Police ordered further investigation under
Section 173(8) of the Code on 6-3-2007. Accordingly, the Metropolitan Magistrate was
informed and the appellant therein was arraigned as accused. He was arrested on 24-4-
2007, remanded to custody for 15 days and charge sheet was filed on 16-7-2007. The
appellant preferred a regular bail application being Criminal Misc. Application No.3459
of 2007 on 17-9-2007, which was allowed vide order dated 5-1-2007 by learned
Additional City and Sessions Judge, Court No.6, Ahmedabad.
While enlarging the appellant on regular bail in exercise of power under Section 439 of
the Code, learned Additional City and Sessions Judge, relied on various circumstances,
more particularly on three facets :-first facet is prior to 26-11-2005, second facet is dated
26-11-2005 and the third facet is post-26-11-2005. The first facet was about conspiracy
part and bringing Sohrabuddin from Hyderabad to Ahmedabad. Second facet is the day
on which alleged encounter of Sohrabuddin took place on 26-11-2005 and the third facet,
i.e. post-26-11-2005 about death of Kausarbi and destroying evidence relating to her
death.
The evidence against the accused appellant
@page-SC2320
revealed his presence as stated by one Nathubha Jadeja on 26-4-2007. As per the letter
dated 7-5-2005 of Investigating Officer said Shri Nathubha Jadeja is shown as accused,
but later on Smt. Gita John, a senior police officer declared in her affidavit before learned
Chief Judicial Magistrate that Shri Nathubha Jadeja is a witness and on 25-5-2007 Shri
Jadeja had stated in his affidavit before the learned CJM that his statement dated 26-4-
2007 was recorded under duress. The other statements of the driver Puranmal
Prabhudayal Mina clearly indicate that the accused had come along with other police
officers from Udaipur to Ahmedabad on 24-11-2005. He stated that he was not present at
the time of alleged encounter and he had no personal knowledge. Another statement of
Shri Bhailal K. Rathod does not also specifically indicate presence of the accused at the
place of encounter. According to the trial Court these statements leave room for doubt
about the involvement of the accused. At the same time, learned trial Judge observed that
truthfulness of allegations levelled against the accused and the satisfaction of the
ingredients of various sections applied are subject-matter of appreciation of evidence and
it can be considered at the time of trial. But it was concluded that sufficient evidence did
not surface against the accused for having committed any heinous crime punishable with
death or imprisonment for life.
So far as the possibility of tampering with evidence is concerned, the trial Court
observed that charge sheet was submitted. By imposing strict conditions, the above
aspects can be taken care of. After discussing the credentials of Sohrabuddin that as many
as 25 FIRs were lodged against him and considering the remarkable service record of the
accused, it was observed that police officers like him should not be allowed to be
harassed and humiliated unless strong prima facie evidence or the material for
committing a serious offence is found. Reliance was placed on a decision of this Court in
Jayendra Saraswathi Swamigal v. State of T.N. (2005 (2) SCC 13). Several conditions
were imposed to grant bail. 2005 AIR SCW 323
Before the High Court the primary stands taken were that seriousness of the offences and
the sentences to be imposed were not kept in view. Irrelevant factors were taken into
consideration for granting bail.
Stand of the applicant-State before the High Court was that very approach of the trial
Court in weighing evidence even prima facie is contrary to the law laid down by this
Court, and based on presumptions of exercise of power under Section 439 of the Code
and should not have been exercised.
Highlighting the definite role of the accused, it was pointed out that Sohrabuddin was a
wanted accused involved in an offence registered with Hathipole Police Station, Udaipur.
It was under his jurisdiction the role of the accused surfaced. He contacted Ahmedabad
Police to trace out Sohrabuddin. When he was apprehended information was given to the
accused and the accused informed his superior officers to send a team to Ahmedabad. He
was leader of the team. Before any formal order came to be passed for forming a team,
weapons were procured from Kotwali upon his arrival in Ahmedabad. He coordinated in
the fake encounter along with ATS officers of the State of Gujarat. Therefore, it was
contended that it was a clear case of conspiracy attracting ingredients of Section 120B
IPC. It was pointed out that the whole case is based on circumstantial evidence and from
the charge sheet, needle of suspicion unerringly pointed out at the accused and the
circumstantial evidence even the form of statements of witnesses and in view of the role
played by accused as afore-noted, the trial Court should not have granted bail.
So far as the alleged discrepancies in the evidence of different witnesses are concerned, it
was submitted that the stage for assessing the contradictions, if any, has not come. It is
pointed out that as per the statement of Nathubha on 26-4-2007 presence of the
respondent was shown at the place of encounter which was sufficient to deny the
protection under Section 439 of the Code. A very significant factor was pointed out to
falsify claim of encounter as narrated in C.R. I-5/2005 and creation of one FIR to falsify
that fake encounter aspect itself amounted to misuse of power by the accused so as to
misguide the investigating agency, though such incident as narrated in the FIR never took
place. It was also pointed out that the retraction of the statement made by Nathubha on
25-5-2007 has to be viewed in the background of the affidavit by Smt. Gita Johri on 25-
4-2007.
@page-SC2321
It was also pointed out that by comparing the antecedents of Sohrabuddin and the alleged
bright career of the accused, the trial Judge mis-directed himself and acted on irrelevant
materials which made his order vulnerable.
The High Court on consideration of the rival submissions held that the learned trial Judge
has not kept in view the seriousness of the offences, punishments prescribed for such
offences and involvement of the accused, a high ranking officer when allegations of
misuse of power necessary in law by registering false FIR has been lost sight of. The
comparative past conduct and antecedents of Sohrabuddin by the so called good official
record of the accused could not have been a ground for grant of bail. Accordingly, the bail
granted was cancelled.
6
. In support of the appeal, learned counsel for the appellant submitted that the parameters
for grant of bail and cancellation of bail are entirely different as has been laid down by
this Court in several cases. In the application for cancellation of bail there was no
reference to any supervening circumstance and only analysis of the materials which were
considered by the trial Court to grant bail were highlighted. It is submitted that even if
two views are possible, once the bail has been granted, it should not be cancelled.
Reliance is placed on decisions of this Court in State (Delhi Admn.) v. Sanjay Gandhi
(1978 (2) SCC 411), Bhagirathsinh v. State of Gujarat (1984 (1) SCC 284), Aslam
Babalal Desai v. State of Maharashtra (1992 (4) SCC 272), Dolat Ram v. State of
Haryana (1995 (1) SCC 349), Ramcharan v. State of M.P. (2004 (13) SCC 617),
Mehboob Dawood Shaikh v. State of Maharashtra (2004 (2) SCC 362), Nityanand Rai v.
State of Bihar (2005 (4) SCC 178), State of U.P. v. Amarmani Tripathi (2005 (8) SCC 21)
and Panchanan Mishra v. Digambar Mishra (2005 (3) SCC 143). It is pointed out that the
common thread passing through the aforesaid decisions is that there is no scope for
cancellation of bail on re-appreciation of evidence. It is pointed out that in Mehboob's
case (supra) and Amarmani's case (supra) the bail was cancelled as it was established that
there were serious attempts to tamper with the evidence and to interfere and sidetrack the
investigation and threaten the witnesses. It is pointed out that as laid down by this Court
in Sanjay Gandhi's case (supra) and Dolat Ram's case (supra) the ball granted should not
have been cancelled by way of re-appreciating evidence. AIR 1978 SC 961
AIR 1984 SC 372
1992 AIR SCW 2621
2004 AIR SCW 527
2005 AIR SCW 2034
2005 AIR SCW 4763
2005 AIR SCW 1103
7. In response, learned counsel for the State of Gujarat submitted that it has not been laid
down by this Court that only if supervening circumstances are there, on assessing the
same bail can be cancelled. He referred to findings of the High Court as to how appellant
has tried to divert attention and thereby defeat the course of justice.
8. As is evident from the rival stands one thing is clear that the parameters for grant of
bail and cancellation of bail are different. There is no dispute to this position. But the
question is if the trial Court while granting bail acts on irrelevant materials or takes into
account irrelevant materials whether bail can be cancelled. Though it was urged by
learned counsel for the appellant that the aspects to be dealt with while considering the
application for cancellation of bail and on appeal against the grant of bail, it was fairly
accepted that there is no scope of filing an appeal against the order of grant of bail. Under
the scheme of the Code the application for cancellation of bail can be filed before the
Court granting the bail if it is a Court of Session, or the High Court.
9. It has been fairly accepted by learned counsel for the parties that in some judgments
the expression "appeal in respect of an order of bail" has been used in the sense that one
can move the higher court.
10
. Though the High Court appears to have used the expression 'ban' on the grant of bail in
serious offences, actually it is referable to the decision of this Court in Kalyan Chandra
Sarkar v. Rajesh Ranjan @ Pappu Yadav and Ann (2004 (7) SCC 528). In para 11 it was
noted as follows : 2004 AIR SCW 1581, (Para 11)
"11. The law in regard to grant or refusal of bail is very well settled. The court granting
bail should exercise its discretion in a judicious manner and not as a matter of course.
Though at the stage of granting bail a detailed examination of evidence and elaborate
documentation of the merit of the case need not be undertaken, there is a need to indicate
in such orders reasons for prima
@page-SC2322
facie concluding why bail was being granted particularly where the accused is charged of
having committed a serious offence. Any order devoid of such reasons would suffer from
non-application of mind. It is also necessary for the court granting bail to consider among
other circumstances, the following factors also before granting bail; they are :
(a) The nature of accusation and the severity of punishment in case of conviction and the
nature of supporting evidence.
(b) Reasonable apprehension of tampering with the witness or apprehension of threat to
the complainant.
(c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind
Upadhyay v. Sudarshan Singh (2002 (3) SCC 598) and Puran v. Rambilas (2001 (6) SCC
338). 2002 AIR SCW 1342
2001 AIR SCW 1935
11. It was also noted in the said case that the conditions laid down under Section 437 (1)
(i) are sine qua non for granting bail even under Section 439 of the Code.
In para 14 it was noted as follows :
"14. We have already noticed from the arguments of learned counsel for the appellant that
the present accused had earlier made seven applications for grant of bail which were
rejected by the High Court and some such rejections have been affirmed by this Court
also. It is seen from the records that when the fifth application for grant of bail was
allowed by the High Court, the same was challenged before this Court and this Court
accepted the said challenge by allowing the appeal filed by the Union of India and
another and cancelled the bail granted by the High Court as per the order of this Court
made in Criminal Appeal No. 745 of 2001 dated 25-7-2001. While cancelling the said
bail this Court specifically held that the fact that the present accused was in custody for
more than one year (at that time) and the further fact that while rejecting an earlier
application, the High Court had given liberty to renew the bail application in future, were
not grounds envisaged under Section 437(1)(i) of the Code. This Court also in specific
terms held that the condition laid down under Section 437(1)(i) is sine qua non for
granting bail even under Section 439 of the Code. In the impugned order it is noticed that
the High Court has given the period of incarceration already undergone by the accused
and the unlikelihood of trial concluding in the near future as grounds sufficient to enlarge
the accused on bail, in spite of the fact that the accused stands charged of offences
punishable with life imprisonment or even death penalty. In such cases, in our opinion,
the mere fact that the accused has undergone certain period of incarceration (three years
in this case) by itself would not entitle the accused to being enlarged on bail, nor the fact
that the trial is not likely to be concluded in the near future either by itself or coupled
with the period of incarceration would be sufficient for enlarging the appellant on bail
when the gravity of the offence alleged is severe and there are allegations of tampering
with the witnesses by the accused during the period he was on bail."
12. Even though the re-appreciation of the evidence as done by the Court granting bail is
to be avoided, the Court dealing with an application for cancellation of bail under Section
439(2) can consider whether irrelevant materials were taken into consideration. That is so
because it is not known as to what extent the irrelevant materials weighed with the Court
for accepting the prayer for bail.
13
. In Puran v. Rambilas and Anr. (2001 (6) SCC 338) it was noted as follows : 2001
AIR SCW 1935, (Para 10)
"11. Further, it is to be kept in mind that the concept of setting aside the unjustified
illegal or perverse order is totally different from the concept of cancelling the bail on the
ground that the accused has misconducted himself or because of some new facts
requiring such cancellation. This position is made clear by this Court in Gurcharan Singh
v. State (Delhi Admn.). In that case the Court observed as under : (SCC p. 124, para 16)
AIR 1978 SC 179, (Para 16)
"If, however, a Court of Session had admitted an accused person to bail, the State has two
options. It may move the Sessions Judge if certain new circumstances have arisen which
were not earlier known to the State and necessarily, therefore, to that court. The State
may as well approach the High Court being the superior court under Section 439(2) to
commit the accused to custody. When, however, the State is aggrieved by the order of the
Sessions Judge granting bail and there are no new circumstances that have cropped up
except those already existing, it is futile for the State to move the Sessions Judge again
and it is
@page-SC2323
competent in law to move the High Court for cancellation of the bail. This position
follows from the subordinate position of the Court of Session vis-a-vis the High Court."
14
. The perversity as highlighted in Puran's case (supra) can also flow from the fact that as
noted above, irrelevant materials have been taken into consideration adding vulnerability
to the order granting bail. The irrelevant materials should be of a substantial nature and
not of a trivial nature. In the instant case, the trial Court seems to have been swayed by
the fact that Sohrabuddin had shady reputation and criminal antecedents. That was not
certainly a factor which was to be considered while granting bail. It was nature of the acts
which ought to have been considered. By way of illustration, it can be said that the
accused cannot take a plea while applying for bail that the person whom he killed was a
hardened criminal. That certainly is not a factor which can be taken into account. Another
significant factor which was highlighted by the State before the High Court was that an
FIR allegedly was filed to divert attention from the fake encounter. The same was not
lodged by the Gujarat Police. The accused was the leader of the Rajasthan team and the
other officials were Abdul Rehman, Himanshu Singh, Mohan Singh, Shyam Singh and
Jai Singh. The first named Abdul Rehman had lodged the FIR. It is pointed out from the
General Diary in respect of entry on 26-11-2005 that accused Dinesh was present. In FIR
CR-I 5/2005 also the presence of Dinesh has been noted. The relevance of these factors
does not appear to have been noticed by the High Court. In other words, relevant
materials were kept out of consideration. Once it is concluded that bail was granted on
untenable grounds, the plea of absence of supervening circumstances has no leg to stand.
2001 AIR SCW 1935
15. We have only highlighted the above aspects to show that irrelevant materials have
been taken into account and/or relevant materials have been kept out of consideration.
That being so, the order of granting bail to the appellant was certainly vulnerable. The
order of the High Court does not suffer from any infirmity to warrant interference. The
appeal is dismissed. However, it is made clear that whatever observations have been
made are only to decide the question of grant of bail and shall not be treated to be
expression of any opinion on merits. The case relating to acceptability or otherwise of the
evidence is the subject matter for the trial Court.
Appeal dismissed.
AIR 2008 SUPREME COURT 2323 "Chandrappa v. State of Karnataka"
(From : Karnataka)*
Chandrappa and Ors. v. State of Karnataka.
(A) Criminal P.C. (2 of 1974), S.154 - FIR - F. I. R. - Delay in lodging - Substantially
explained as incident happened in remote village, - F. I. R. could not be recorded earlier
as entire family involved either on one side or other - Family members first attended the
seriously injured, one of prosecution witness - Ultimately widow of deceased lodged F. I.
R. - In circumstances delay of a couple of hours cannot be said to be unreasonable.
(Para 8)
(B) Evidence Act (1 of 1872), S.3 - EVIDENCE - WITNESS - Evidence of eye-witnesses
- Credibility - Entire family involved in incident - Injuries caused by several accused
armed with different kinds of weapons - Evidence of eye witnesses recorded more than 5
years of incident - Non-disclosure of exact description of injuries by eye witnesses -
Would not detract from substratum of their evidence - Moreover, eyewitness, sister of
accused, deceased and injured persons, though living with her father and accused,
supported the prosecution. (Para 9)
(C) Evidence Act (1 of 1872), S.3 - EVIDENCE - Injuries on accused - Non-explanation
of insignificant injury on person of only one accused - Does not dislodge the prosecution
story. (Para 11)
(D) Penal Code (45 of 1860), S.300, S.304, Part II - MURDER - CULPABLE
HOMICIDE - PLEA - PRIVATE DEFENCE - Murder - Dispute with regard to land -
Both parties very closely related to each other - Accused came to place of incident fully
armed - Object was to sort things out with deceased as
@page-SC2324
he was creating problems for them and their lather over land in question - And to remove
him from scene once and for all - Plea of right of defence found rightly rejected -
Furthermore, serious injuries caused to deceased and to prosecution witness - Matter
would not fall within ambit of S.304, Part II - Conviction of accused u/S.302 - No
Basava Prabhu S. Patil, V.N. Raghupathy, S. Subrahmanya Prasad and Narayan P.

Kengasur, for Appellants; Sanjay R. Hegde, Amit Kumar Chawla and Ramesh S. Jadhav,
for Respondent.
* Cri. A. No.1121 of 1999, D/- 1-2-2006 (Kant.)
Judgement
HARJIT SINGH BEDI, J. :- The facts leading to the filing of this appeal by way of
special leave are as under :
2. PW-1 Bhagyavathi, wife of Thimmappa deceased of village Arebilachi, is the
complainant in the case. Thimmappa was the son of Navilapa. Navilapa had, in addition,
five other sons Devendrappa, Manjappa, Chandrappa, Nagarajappa and Gadigeshappa
and two daughters including Ratnamma PW-2. Navilapa had about 12 acres of ancestral
land and he had divided the said land equally between himself and his sons and all were
in possession of their respective shares thereafter. Thimmappa, Devendrappa and
Manjappa were residing separately whereas the other two, Chandrappa and
Gadigeshappa, were residing in their old family home whereas Nagarajappa was residing
with his father Navilapa and. his sister Ratnamma. Thimmappa, however, acquired about
10 acres of land on his own but his brothers Chandrappa and Gadigeshappa were
demanding a share out of this land as well and on account of this development, the
relationship between the brothers had become strained. Chandrappa and Gadigeshappa
also filed a suit seeking a share in the 10 acres acquired by Thimmappa with the result
that the relation between the brothers was further strained. At about 4 p.m. on 1-8-1993,
Thimmappa told his wife Bhagyavathi that he had learnt that Chandrappa and
Gadigeshappa had gone to the field to pluck coconuts and that he was going to prevent
them from doing so. Thimmappa and his brother Devendrappa PW3 then left for the
fields on a scooter. A few minutes later Rathnamma PW2, sister-in-law of Bhagyavathi
PW-1 came to her house and informed her that she had seen Chandrappa and
Gadigeshappa accompanied by their brother-in-law Hanumanthappa, Shiva and
Siddeshappa along with Bhoomesha and Manja proceeding towards the field armed with
Choppers and sickles and she apprehended some danger. Bhagyavathi and Rathnamma
then left for the field and as they reached the outer fencing at about 4.30 p.m., they saw
all the accused as well as Bhoomesha and Manja assaulting Thimmappa with sickles and
choppers. PW3 Devendrappa went to the rescue of his brother but he too was assaulted
and having sustained an injury he ran away towards the village. PWs1 and 2 thereafter
entered the garden and saw that Thimmappa was lying grievously injured near the
Samadhi adjoining the land. The accused Siddeshappa and Hanumanthappa also abused
and assaulted the two women. PW4 Prashanth Kumar, who was attracted to the place,
rushed in with some water which he attempted to put into Thimmappa's mouth but he
succumbed to his injuries at the spot. PW3 Devendrappa was also taken to the
Bhadravathi hospital by PW11 Rudrappa whereas PWs. 1, 2 and 4 stood near the dead
body. It was also noticed that the accused while running away had left behind a sickle and
a club near the dead body. An FIR was got registered by PW1 Bhagyavathi at about 11.45
p.m. at the Police Station. The investigation was taken over by Inspector M.I. Jameel
PW20 who visited the scene of occurrence on 2nd August 1993 at about 6.30 a.m. and
prepared the inquest report and recorded the statements of the witnesses and picked up
the sickle and club in the presence of witnesses. His efforts to trace out the accused were,
however, not successful till the 3rd August 1993 when he arrested four of them. Accused
No.2 was arrested on 10-9-1993. He also visited the Government Hospital Bhadravathi
on the same day and seized the blood stained clothes of injured PW3 Devendrappa.
Several weapons of offence were also recovered on the interrogation of the accused. On
the completion of the investigation, the accused were charged for offences punishable
under sections 143, 147, 148, 302 and 324 read with 149 of the IPC.
3. The prosecution in support of its case relied primarily on the statements of the four eye
witnesses PW1 Bhagyavathi, wife of the deceased, her sister-in-law PW2 Rathnamma.
PW3 Devendrappa an injured witness
@page-SC2325
and brother of the deceased and of two of the accused, and PW4 Prashanth Kumar son of
PW3, a boy aged 13 years. Reliance was also placed on certain pieces of circumstantial
evidence. The prosecution case was then put to the accused under section 313 of the
Cr.P.C. and in the written statements filed by way of their defence they denied the
allegations in toto and on the contrary put up a counter version that Hanumanthappa and
Siddeshappa had not been present at the time of incident and that the other three accused
had been assaulted by Thimmappa deceased, PW3 Devendrappa and one Manju Nath and
that they had caused injuries to Thimmappa in their self defence.
4. The trial court held that it was clear from the record that a dispute existed between
Thimmappa and his brothers with regard to the 10 acres of land and that Thimmappa had
in fact filed three suits seeking an injunction but the said suits had been dismissed on 3rd
April, 1993 itself and as such there was no injunction in favour of Thimmappa on the day
of incident. The court also observed that a Partition Suit which too had been filed, had
been compromised after the murder on 5th November 1993 and that no partition had
taken place before the aforesaid date and the field in which the incident happened stood
in the name of Navilappa and that they had started a plantation on the said land which
was being managed by them. The court also noted that it appeared that in the early hours
of 1st August 1993 Navilappa had filed a complaint before the police alleging that his
sons Thimmappa deceased and PW3 Devendrappa were obstructing him from entering
his land and it therefore appeared that the accused Chandrappa and Gadigeshappa and
son Nagarajappa had joined hands to defend their possession when the deceased
Thimmappa and Devendrappa PW3 were creating an obstruction. The court then
examined the statements of the witnesses and observed that the FIR did not show the
presence of PW4 Prashanth Kumar or the nature of the weapons in the hands of the
accused and the story that the accused had snatched a Mangalya with a golden chain from
PW1 Bhagyavathi was also an exaggeration. The court further observed that the police
itself appeared to have discarded the presence of Bhoomesha and Manja and had not filed
a charge-sheet against them which supported the view that an attempt had been made to
rope in innocent people. The court also observed that the fact that the witnesses who were
allegedly 30 meters away from the field of the spot had stood still watching "just like a
film shooting" or like "Dumb statues" and this was also circumstance against the
prosecution. The court further observed that there was a delay in the lodging of the FIR
which had not been adequately explained away. The court then went into the medical
evidence and opined that PW15 Dr. Nanda Koti, who had treated the accused and PW3
Devendrappa for their injuries had not informed the police as to what had transpired and
that PW3 had mentioned only two of the accused i.e. Chandrappa and Gadigeshappa as
having been present. The court finally concluded that it was the deceased and injured
witnesses who were the aggressors, the moreso as the prosecution had not been able to
explain the injuries on the accused. For arriving at this conclusion, the trial court relied
on the evidence of PW15 Dr. Nanda Koti who had examined three of the accused i.e.
Chandrappa, Shiva and Gadigeshappa for their injuries at the Bhadravathi Government
Hospital at 5.20 p.m. on 1st August 1993 with a history of assault caused on deceased
Thimmappa, PW3 Devendrappa and one Manjappa and had detected one incised injury
each on the person of Gadigeshappa and Shiva, both injuries which could have been
caused with a sickle or a chopper. PW15 also examined PW3 at 6.30 p.m. the same day
who had appeared with a history of assault by Chandrappa and Gadigeshappa. The court
nevertheless relying on several judgments held that though the non-explanation of minor
injuries on the person of the accused could not be said to be fatal to the prosecution story
but such an omission did create a doubt as to its veracity. The court finally hinted that it
appeared that the defence version was more probable and prefaced its conclusion by
observing :
"In view of the discussions made by me in the above said paras, I find there is an
inordinate delay in lodging the complaint. That delay is not satisfactorily explained. The
witnesses chosen by the prosecution are only the interested inimical witnesses. In view of
the material discrepancies in between the evidence of PW's 1 to 4 their presence at the
time of the alleged mutual fight or galata is itself rather doubtful. In all probability,
@page-SC2326
PWs. 1, 2 and 4 must have come to the spot only after coming to know of the assault not
prior to that and the person involved in the fight PW3 somehow escaped from the spot.
The whole of the evidence of PWs 1 to 4 appears to be bit unnatural and unbelievable one
in the ordinary course of time. It is an over exaggerated evidence given by them.
Admittedly, there is a property dispute. As on the date of this alleged incident, the land
"Pavadi Hondada Thota" was standing in the name of Navilappa, the father of deceased
Thimmappa as well as accused Nos. 1 and 4. It is accused Nos. 1 and 4 who are
managing the said property. It has also come in the evidence that the suit filed by
deceased seeking injunction pertaining to the said land was dismissed very well prior to
this alleged Incident. So, as on the date of incident, there was no injunction nor deceased
was in possession of the said property including PW3. But still they went there to assert
their right. There are two versions. According to PW3 it is he and his brother deceased
Thimmappa, who first went to the said land. Thereafter 10 minutes, accused came to the
said land. But on the other hand, the investigation reveals through PWs 1 and 2's
evidence that it is the accused, who first went to the said land. When they intended to
pluck the coconuts, these PW3 and deceased went to the spot there arose galata."
and finally concluded as under :
"I have closely scrutinized the evidence of these PWs 1 to 4. But I find their evidence is
not trustworthy. The other part of the evidence of other witnesses is very much formal
and procedural one. The two other eye witnesses PWs 6 and 7 have turned hostile. So,
viewing from any angle, I find the evidence now before me is not just and sufficient to
connect the accused with the alleged offence punishable under sections 143, 147, 148,
324, 302 and 149 of the IPC. I find the prosecution has failed to prove that the accused
being the members of unlawful assembly being armed with deadly weapons in
prosecution of their common object caused rioting on that day and assaulted Thimmappa
as well as PW3 with the said weapons, which has resulted in the death of Thimmappa and
injuries to PW3. It may amount to repetition if I say that the evidence now before is not
just and sufficient to connect the accused with the said charge. PW2 has categorically
stated that when herself and PW1 came to the said spot on that day, they saw PW3
already left the place. He had gone to his house. That means to say these PWs 1, 2 and 4
have not actually seen the accused assaulting either Thimmappa or PW3. This evidence
of PW2 cuts at the root of the prosecution case. As there arises a reasonable doubt in the
case of prosecution, the accused are entitled to have the benefit of the same. Prosecution
has failed to establish that these accused are the real aggressors or they are directly
responsible causing the said incident. On the other hand, defence of the accused is
substantiated on the facts and material now placed before the court that in all probability
the deceased and PW3 must have taken the law into their own hands at the inception and
in that mutual fight both sides sustained Injuries. Unfortunately, Thimmappa succumbed
to the Injuries. But who is responsible for his death, who is responsible for causing injury
to PW3 is not specifically established by the prosecution. Hence, with these reasons, I
answer point Nos. 1 to 3 in the negative and proceed to pass the following :"
5. The trial court accordingly acquitted the accused. The matter was taken to the High
Court by way of an appeal at the instance of the State of Karnataka. The High Court in
the course of its judgment upset the order of the trial Judge by observing that the fact that
Thimmappa deceased had met a homicidal death had been proved from the medical
evidence and then went to the question as who was responsible thereof. The court
examined the evidence of the eye witnesses and found that they corroborated each other
in material particulars, the moreso as the presence of PW3 Devendrappa had also been
admitted by the defence. The court also held that the eye witness testimony had a ring of
truth around it and the injuries Ex.P27 to P29 confirmed the presence of the accused in
the incident and also the fact that only one of the accused had sustained a simple injury,
no obligation rested on the prosecution to explain it. The court also observed (in the facts
of the case) that the delay in lodging of the FIR was not fatal to the prosecution story as
the complaint had been lodged by PW1 between 10 and 11 p.m. and the formal FIR had
been registered at about 11.45 p.m. The plea of the accused that the case would fall under
section 304 IPC was also repelled as the
@page-SC2327
manner of the assault did not justify such a conclusion. The court accordingly held as
under :
"To sum up, we hold that the trial court's judgment and order of acquittal cannot be
sustained as it is contrary to the evidence on record and unreasonable as well as perverse
and bring opposed to well established principles of law with regard to appreciation of
evidence and as such, the same is liable to be interfered with, We, therefore, convict the
accused persons for the offences punishable under Sections 143, 147, 148, 302 read with
149 and 324 read with 149 of the IPC."
and in doing so sentenced them to imprisonment for life under section 302/149 IPC with
no separate sentence for the other offences. It is in this circumstance that the present
appeal by way of special leave has come up before us.
6. Mr. Basava Prabhu S. Patil, the learned counsel for the appellants has pointed out that
certain facts had been admitted by both parties and that the matter would have to be
examined in this background. He has pointed out that both the complainant and the
accused party were very closely related to each other, the five accused being the brothers
of the deceased and the eye witnesses being the wife and nephew of the deceased and of
the accused. It has also been pointed out that the fact that a dispute with regard to the land
had also found its way to the civil and criminal Courts was clear from the record. It has
also been pleaded that the accused had spelt out a counter version and had pointed out in
their statement under section 313 of the Cr.P.C. inasmuch as three of them i.e.
Hanumanthappa, Siddeshappa had not been present whereas the other three have in their
statements admitted their presence and stated that the land in which the incident had
happened was the ancestral property of the family with the Revenue documents in the
name of Navilapa their father and that a complaint had also been filed by Navilapa
against Thimmappa as to his attempts to encroach upon this property.
7. In this Background, Mr. Patil has argued that it appeared that deceased and his
companions were indeed the aggressors and that the incident had happened when the
accused were exercising their right of self defence to protect their person and property. It
has further been pleaded that the witnesses were discrepant as to the actual manner of the
assault and as such no credence could be attached to their testimony. It has finally been
pleaded that there was an inordinate delay in the registration of the FIR and that this
delay had been utilized to create four eye witnesses and a false story inculpating the
accused. The State counsel has however supported the judgment of the High Court.
8. It is true that prima facie there appears to be some delay in the lodging of the FIR at
10.45 p.m. in the light of the fact that incident had happened at 4.30 p.m. on 1st August
1993. However, as three of the accused have put up a counter version, the effect of the
delay in the FIR is somewhat reduced. We are also of the opinion that the delay in the
lodging of the FIR has been substantially explained as the incident had happened in a
remote village some distance from the Police Station and as PW3 had also sustained a
serious injury, the first anxiety of the family would have been to look after him the more
so as all the brothers of the deceased and PW3 were themselves the assailants and there
was nobody else in the family to have taken the injured PW3 to the hospital. It is also
significant that the FIR could not have been recorded earlier as the entire family was
involved either on one side or the other and it had ultimately been left to a hapless widow,
completely isolated from the rest of the family, to lodge the FIR. It is in this background
we find that a delay of a couple of hours cannot be said to be unreasonable.
9. It has been contended by the learned counsel for the appellants that the discrepancies
between the statements of the eye witnesses inter se would go to show that they had not
seen the incident and no reliance could thus be placed on their testimony. It has been
pointed out that their statements were discrepant as to the actual manner of assault and as
to the injuries caused by each of the accused to the deceased and to PW3 the injured eye
witness. We are of the opinion that in such matters it would be unreasonable to expect a
witness to give a picture perfect report of the injuries caused by each witness to the
deceased or the injured more particularly where it has been proved on record that the
injuries had been caused by several accused armed with different kinds of weapons. We
also find that with the passage of time the memory of an eye-witness
@page-SC2328
tends to dim and it is perhaps difficult for a witness to recall events with precision. We
have gone through the record and find that the evidence had been recorded more than 5
years after the incident and if the memory had partly failed the eye witnesses and if they
had not been able to give an exact description of the injuries, it would not detract from
the substratum of their evidence. It is however very significant that PW2 is the sister of
the 5 appellants, the deceased and PW3 Devendrappa and in the dispute between the
brothers she had continued to reside with her father Navilappa who was residing with the
appellants, but she has nevertheless still supported the prosecution. We are of the opinion
that in normal circumstances she would not have given evidence against the appellants
but she has come forth as an eye witness and supported the prosecution in all material
particulars.
10. Much emphasis has been however laid by Mr. Patil, on the defence version that
Thimmappa, Devendrappa and one Manjappa had first made an attack on three of the
appellants and that the appellants had thereafter caused injuries in their self defence
leading to the death of Thimmappa and some injuries to Devendrappa. We find that this
matter had been discussed in extenso by the High Court in its judgment and the version of
the appellants had been rightly rejected. Some emphasis has also been laid by the learned
counsel on the fact that as per injury certificates Ex.P-27 to P-29 that three accused had
suffered injuries in the incident. It is however clear from a perusal of these documents
that out of the three, only one of the accused had sustained a simple injury on the hand
and the other two had no discernible injury except a complaint of a backache in the case
of Shiva. On the other hand, we have the evidence of PW15 Dr. Nanda Koti who had
examined Devendrappa on the evening of the day of incident with a history of attack with
a sickle and club and she had found the following 5 injuries on his person :
i) lacerated wound over occipital region 3 cms x 1 cm bleeding.
ii) Stab injury over right arm, lower and posterior aspect 1 cm x Â½ cm covered with
fresh blood clots.
iii) Incised wound over web space between right thumb and index finger 3 cm x 1cm x
Â½ covered with fresh blood clots.
iv) Contusion over middle of a shin of left leg 6 cm x 4 cm red.
v) Contusion with club impression over left side of the chest 6 cms x 2 cms red.
11. It is also well settled that the prosecution is not called upon to explain each and every
injury on the person of an accused and in this view of the matter the non-explanation of
an insignificant injury on the person of only one does not dislodge the prosecution story.
12. It has also been contended that no case under section 302 of the IPC had been made
out and if at all the accused were liable to be convicted under section 304 Part-II of the
IPC. We find no merit in this plea. It is clear from the record that the accused had come to
the place of incident fully armed with the object to sort things out with the deceased as he
was creating problems for them and their father over the land in question and to remove
him from the scene once and for all. Furthermore, in the light of the serious injuries
caused to the deceased and to PW3 Devendrappa the matter does not fall within the ambit
of section 304 Part II of the IPC.
13. It has finally been pleaded by Mr. Patil that Siddeshappa, accused No.5 was a juvenile
on the date of incident and ought to have been dealt with under that procedure. We,
however, find no evidence to suggest that the aforesaid accused was indeed a juvenile and
the counsel's mere ipse dixit at this belated stage cannot be accepted.
14. We thus find no merit in the appeal. Dismissed.
Appeal dismissed.
AIR 2008 SUPREME COURT 2328 "M. R. Satwaji Rao v. B. Shama Rao"
(From : ILR (2000) Kant 1037)
M. R. Satwaji Rao (Dead) by L.Rs. v. B. Shama Rao (Dead) by L. Rs. and Ors.
Civil P.C. (5 of 1908), O.34, R.14 - MORTGAGE - SALE - TRUST - Sale of mortgaged
property - Usufructuary mortgage - Plaintiffs-mortgagors continued in possession of
property as tenants - Mortgagor failed to pay rents - Suit for recovery of arrears of rent -
Purchase of property by mortgagee in
@page-SC2329
auction - Must be deemed to have been made in trust for mortgagor - Subsequent suit for
redemption by mortgagor - Not barred as relationship of mortgagor and mortgagee
continues to subsist.
Trusts Act (2 of 1882), S.90.
Transfer of Property Act (4 of 1882), S.60.
In the instant case, plaintiffs' respondents' predecessor executed a usufructuary mortgage
in favour of the appellants for a sum of Rs. 10,000/-. The period of redemption was five
years from the date of mortgage. The mortgagors continued in possession of the
mortgaged property as tenants of the mortgagee on a monthly rent of Rs. 97.50. As the
mortgagors failed to pay the rent, the mortgagee filed suit for arrears of rent. The said suit
was decreed. The property was put on auction sale by the executing Court. Mortgagee
being the highest bidder purchased the schedule property in Court auction. Sale was
confirmed. The respondents/mortgagors neither objected the sale nor its confirmation nor
took any steps to set aside the sale. The plaintiffs/respondents, after nearly three decades,
filed a suit for a decree of redemption of the mortgage of the suit schedule property sold
in public auction as long back as on 11-9-1952.
Held, the suit filed by the mortgagee for recovery of arrears of rent in respect of
mortgaged property was not in terms of O. 34, R. 14 of C.P.C. Therefore, bringing the
mortgaged property for sale by the appellants in execution of the decree passed in said
suit and purchasing the property by the appellants-mortgagee in public auction is clearly
barred under O. 34, R. 14, C.P.C. Though the suit schedule property was mortgaged by
the respondents with the appellants by way of possessory mortgage deed dated 19-2-
1948, the respondents never parted with the possession thereafter, as the appellants chose
simultaneously on 19-2-1948 to let the respondents continue in possession as tenants on a
monthly rental of Rs. 97.50. On 12-12-1948 a second mortgage deed for Rs. 3,000/- was
executed in favour of the appellants by the respondents towards arrears of rent for the
period from 19-2-1948 to 12-12-1948. In those circumstances the said suit brought by the
appellant was very much for seeking satisfaction of claims arising under the suit schedule
property and the same not being on a suit for sale instituted in enforcement of the
mortgage in question, the same is barred under O. 34, R. 14, C.P.C. (Paras 6, 7)
In the absence of recourse to R. 14 of O. 34 by the appellants for filing suit for sale of
mortgaged property, the relationship of mortgagor and mortgagee continues to subsist and
purchase of property by mortgagee in auction is only in trust for the mortgagor. In view
of the same, the right to redeem the mortgage is not extinguished and in the eye of law
the purchase of the mortgaged property in pursuance of the decree for rent arrears must
be deemed to have been made in trust for the mortgagor. In such circumstances, order
granting preliminary decree for redemption was proper. (Para 13)
Further, since the suit for redemption of mortgaged property was filed within the time
prescribed, i.e. period of limitation of thirty years, the order granting preliminary decree
for redemption, cannot be faulted. (Para 13)
(1997) 5 SCC 185 (Ref.) 11
AIR 1985 SC 1646 10
AIR 1964 Ker 225 11
AIR 1961 SC 1353 (Ref.) 9, 11
AIR 1954 SC 336 9
S.B. Sanyal, Sr. Advocate and Rajesh Mahale, for Appellant; P. Vishwanath Shetty, Sr.
Advocate, R.P. Wadhwani, B. Subrahmanya Prasad, K.B. Sandeep and A.S. Bhasme, for
Respondents.
Judgement
1. P. SATHASIVAM, J. :- This appeal is directed against the final judgment dated 11-12-
1998 of the High Court of Karnataka at Bangalore in R.F. A. No. 465 of 1990 by which
the High Court allowed the first appeal filed by the respondents herein.
2. The facts, in a nutshell, are as under :
The legal representatives of defendant No. 2 are the appellants in this appeal. On 19-2-
1948, the plaintiffs' predecessor executed a usufructuary mortgage in favour of the
appellants herein for a sum of Rs. 10,000/-. The terms of the said mortgage deed were
that the mortgagee shall remain in possession of the mortgaged property without paying
rent and that the mortgage amount of Rs. 10,000/- shall carry no
@page-SC2330
interest. The period of redemption was five years from the date of mortgage. However,
the mortgagors continued in possession of the mortgaged property as tenants of the
mortgagee on a monthly rent of Rs. 97.50. As the mortgagors failed to pay the rent, on
19-5-1952, the mortgagee filed suit being O.S. No. 120/51-52 on the file of the 1st
Munsif, Bangalore for arrears of rent. The said suit was decreed. In pursuance of the said
decree, the mortgagee (2nd defendant) filed Execution Petition No. 1002/51-52 and the
property was put on auction sale by the executing Court. Mortgagee being the highest
bidder purchased the schedule property in court auction. Sale was confirmed. The
respondents/mortgagors neither objected for the sale nor confirmed the sale or taken any
steps to set aside the sale over three decades. On 18-2-1983, the plaintiffs/respondents,
after nearly three decades, filed a suit being O.S. No. 632 of 1983 on the file of the III
Addl. City Civil Judge, Bangalore for a decree of redemption of the mortgage of the suit
schedule property sold in public auction as long back as on 11-9-1952. The Civil Judge,
after considering both oral and documentary evidence, dismissed the suit with costs on
31-7-1990. Aggrieved by the said order, the plaintiffs filed R.F.A. No. 465 of 1990 before
the High Court. The High Court allowed the appeal decreeing the suit for redemption.
Against the impugned judgment of the High Court, the defendants filed the present
appeal by way of special leave.
3. Heard Mr. S.B. Sanyal, learned senior counsel appearing for the appellants, Mr. P.
Vishwanath Shetty, learned senior counsel for the contesting respondent Nos. 1(i) to (vii)
and 7 and Mr. R.P. Wadhwani, learned counsel appearing for respondent Nos. 2, 3, 5, 6, 8
and 9.
4. Mr. Sanyal, learned senior counsel for the appellants mainly contended that the money
decree (O.S. No 120/51-52) obtained is an independent one and not connected with the
mortgage claim and in execution of the money decree the property was sold on 11-09-
1952, the relationship of mortgagor and mortgagee is not subsisting, in such
circumstances, Order XXXIV, Rule 14, CPC is not applicable and the trial Court rightly
dismissed the suit, however, the High Court committed an error in granting preliminary
decree for redemption as if the original mortgage subsists. According to him, the
application of Order XXXIV, Rule 14, CPC is wholly illegal and setting aside the sale of
1951-52 is inequitable especially in view of the fact that there was no objection from the
respondents for sale or confirmation of the sale and of the fact that they have not taken
any steps to set aside the sale for over three decades. On the other hand, Mr. Vishwanath
Shetty, learned senior counsel for the contesting respondents submitted that O.S. No
120/51-52 brought by the appellants was very much for seeking satisfaction of the claims
patently arising under the mortgage of the suit schedule property and the same not being
a suit for sale instituted in enforcement of the mortgage in question clearly comes under
the pale of the bar under Order XXXIV, Rule 14, CPC. He further submitted that their
purchase in the circumstances amounts to a mere trust and they cannot be allowed to
exploit the adversity of the appellants. He further pointed out that the property in question
is worth of Rs. 100 lacs and for non-payment of rent of just less than Rs. 1,200/-, the sale
took place and was purchased by the mortgagee. Finally according to him, even on
equity, the appellants are not entitled to any relief.
5. Before adverting to necessary provisions, it is useful to refer certain factual details. It is
seen that the deceased second defendant had taken the suit property under possessory
mortgage dated 19-02-1948 on payment of Rs. 10,000/- for a period of five years from
the plaintiffs. However, the plaintiffs/mortgagors continued in possession as tenants on
monthly rent of Rs. 97.50. As the plaintiffs/ mortgagors failed to pay rents, O.S. No.
120/51-52 was filed for recovery of Rs. 1,225/- towards arrears of rent. The suit was
decreed and the property was put in auction in execution No. 1002/51-52 and the
mortgagee/second defendant purchased the schedule property in court auction on 11-09-
1952. The sale was confirmed under Order XXI, Rule 92, CPC. The second defendant
became the absolute owner of the schedule property. It is the claim of the mortgagee that
the sale held on 11-09-1952 was the sale of the right of plaintiffs in the mortgaged
property in question which came to be purchased by him/second defendant, the said sale
having become final, there was no right of redemption subsisting on the date of
confirmation of sale as mortgage came to an end. In this way, it was contended that the
suit which was filed for redemption of the schedule property is
@page-SC2331
misconceived and not maintainable in law. It was also claimed that the property once
mortgaged was sold in court auction and consequently the property never subsists as a
mortgaged property. It was also argued that the auction sale is not void, but voidable
unless the mortgagor avoids such a sale by taking recourse to legal proceedings in the
absence of which he will not be entitled to exercise his right of redemption as there is no
such right exist. It was also pointed out that though it was open to the plaintiffs to take
such steps as was necessary to prevent the sale being held or to institute such proceeding
as was necessary to get the sale set aside, the plaintiffs failed to avail the remedy
available to them in law within the time available under the Limitation Act and thus
allowed the sale to become final. Therefore, the plaintiffs waived their rights. Though the
trial Court dismissed the suit and rejected the claim of redemption of the mortgaged
property, the appellate Court/ High Court on appreciation of oral and documentary
evidence and on the basis of relevant provisions, namely, Civil Procedure Code, Transfer
of Property Act and Indian Trusts Act granted preliminary decree for redemption which is
now challenged in this appeal.
6. Chapter IV of the Transfer of Property Act, 1882 refers various kinds of mortgage of
immoveable property. Section 58 defines that mortgage is the transfer of an interest in
specific immoveable property for the purpose of securing the payment of money
advanced or to be advanced by way of loan, an existing or future debt, or the performance
of an engagement which may give rise to a pecuniary liability. The transferor is called a
mortgagor, the transferee a mortgagee; the principal money and interest of which
payment is secured for the time being are called the mortgage-money, and the instrument
by which the transfer is effected is called a mortgage-deed. In the case on hand, it is not
in dispute the mortgage in question is a usufructuary mortgage which is defined in sub-
section (d) of Section 58 as under :
"(d) Usufructuary mortgage. - Where the mortgagor delivers possession or expressly or
by implication binds himself to deliver possession of the mortgaged property to the
mortgagee, and authorizes him to retain such possession until payment of the mortgage-
money, and to receive the rents and profits accruing from the property or any part of such
rents and profits and to appropriate the same in lieu of interest, or in payment of the
mortgage-money, or partly in lieu of interest or partly in payment of the mortgage-money,
the transaction is called a usufructuary mortgage and the mortgagee an usufructuary
mortgagee."
Section 60 refers to 'right of mortgagor to redeem' which reads thus :
"Section 60 - Right of mortgagor to redeem. - At any time after the principal money has
become due, the mortgagor has a right, on payment or tender, at a proper time and place,
of the mortgage-money, to require the mortgagee (a) to deliver to the mortgagor the
mortgage-deed and all documents relating to the mortgaged property which are in the
possession or power of the mortgagee, (b) where the mortgagee is in possession of the
mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of
the mortgagor either to re-transfer the mortgaged property to him or to such third person
as he may direct, or to execute and (where the mortgage has been effected by a registered
instrument) to have registered an acknowledgment in writing that any right in derogation
of his interest transferred to the mortgagee has been extinguished :
Provided that the right conferred by this section has not been extinguished by act of the
parties or by decree of a Court.
The right conferred by this section is called a right to redeem and a suit to enforce it is
called a suit for redemption.
Nothing in this section shall be deemed to render invalid any provision to the effect that,
if the time fixed for payment of the principal money has been allowed to pass or no such
time has been fixed, the mortgagee shall be entitled to reasonable notice before payment
or tender of such money."
Order XXXIV, CPC speaks about suits relating to mortgages of immoveable property.
Among the other provisions, we are concerned about Order XXXIV, Rule 14, CPC which
reads as under :-
"14. Suit for sale necessary for bringing mortgaged property to sale. - (1) Where a
mortgagee has obtained a decree for the payment of money in satisfaction of a claim
arising under the mortgage, he shall not be entitled to bring the mortgaged property to
sale otherwise than by instituting a suit for sale in enforcement of the mortgage, and he
@page-SC2332
may institute such suit notwithstanding anything contained in Order II, Rule 2."
It is useful to refer Section 90 of the Indian Trusts Act, 1882 which reads as under :-
"Section 90 - Advantage gained by qualified owner. - Where a tenant for life, co-owner,
mortgagee or other qualified owner of any properly, by availing himself of his position as
such, gains an advantage in derogation of the rights of the other persons interested in the
property, or where any such owner, as representing ail persons interested in such property,
gains any advantage, he must hold, for the benefit of all persons so interested, the
advantage so gained, but subject to repayment by such persons of their due share of the
expenses properly incurred, and to an indemnity by the same persons against liabilities
properly contracted, in gaining such advantage.
Illustrations
(a) A, the tenant for life of leasehold property, renews the lease in his own name and for
his own benefit. A holds the renewed lease for the benefit of all those interested in the old
lease.
(b) A village belongs to a Hindu family. A, one of its members, pays Nazrana to
Government and thereby procures his name to be entered as the inamdar of the village. A
holds the village for the benefit of himself and the other members.
(c) A mortgages land to B, who enters into possession. B allows the Government revenue
to fall into arrear with a view to the land being put up for sale and his becoming himself
the purchaser of it. The land is accordingly sold to B. Subject to the repayment of the
amount due on the mortgage and of his expenses properly incurred as mortgagee, B holds
the land for the benefit of A.
A perusal of the various clauses in the mortgage deed dated 19-02-1948, second mortgage
dated 12-12-1948, pleadings in O.S. No. 120/51-52 filed for arrears of rent which was
decreed on 19-05-1952, order passed in E.P.No. 1002/51-52, dated 11-09-1952 as well as
pleadings in O.S. No.632/1983 on the file of third Additional City Civil Judge, Bangalore
filed for redemption of mortgage and the reasoning of the High Court in RFA No.
465/1990, dated 11-12-1998 which is impugned in this appeal clearly support the stand
taken by the contesting respondents/ plaintiffs. Though learned senior counsel for the
appellants contended that the claim and the decree in O.S. No. 120/51-52 has nothing to
do with the mortgage dated 19-02-1948 or 12-12-1948, a perusal of all the details
referred to above leads to an irresistible conclusion that the decree in favour of the
appellant-mortgagee in O.S. No. 120/51-52 was not an independent money decree against
respondents but merely for satisfaction of the rents accrued on the mortgaged property,
leased back to the respondents on 19-02-1948 itself up to 12-12-1948 and thereafter
which was secured by a second mortgage deed dated 12-12-1948 executed by the
respondents in favour of the appellants. We have already referred to Rule 14 of Order
XXXTV, CPC which prohibits the mortgagee to bring the mortgaged property to sell
otherwise than by instituting a suit for sale in enforcement of the mortgage. Admittedly,
the said suit by the mortgagee was not in terms of Rule 14 of Order XXXIV. Therefore,
bringing the mortgaged property for sale by the appellants in execution of the decree
passed in O.S. No. 120/51-52 and purchasing the same by the appellants in public auction
is clearly barred under Order XXXIV, Rule 14, CPC. It is useful to point out that D.W. 1
has specifically stated in her examination that though the suit schedule property was
mortgaged by the respondents with the appellants by way of possessory mortgage deed
dated 19-02-1948, the respondents never parted with the possession thereafter, as the
appellants chose simultaneously on 19-02-1948 to let the respondents continue in
possession as tenants on a monthly rental of Rs. 97.50. The High Court has also referred
to the fact that on 12-12-1948 a second mortgage deed for Rs. 3,000/- was executed in
favour of the appellants by the respondents towards arrears of rent for the period from 19-
02-1948 to 12-12-1948. In those circumstances, we agree with the conclusion of the High
Court that in O.S. No. 120/51-52 brought by the appellant was very much for seeking
satisfaction of claims arising under the suit schedule properly and the same not being on a
suit for sale instituted in enforcement of the mortgage in question, the same is barred
under Order XXXTV, Rule 14, CPC. Further, we are satisfied that all the relevant
materials have been specifically pleaded in the plaint in O.S. No. 632 of 1983 on the file
of Third Additional City Civil Judge, Bangalore.
@page-SC2333
7. We have already referred to Section 90 of the Indian Trusts Act. Illustration (c) of
Section 90 is applicable to the case on hand. The purchase by the mortgagee in the
circumstances narrated above amounts to a mere trust and either himself or his legal
representatives cannot be allowed to exploit the adversity of the appellants.
8. In view of the factual scenario, though learned senior counsel for the appellants relied
on decisions of various High Courts, we are of the view that there is no need to refer the
same.
9
. In Mritunjoy Pani and another v. Narmanda Bala Sasmal and another, (1962] 1 SCR
290, the legal position as to right of redemption in a usufructuary mortgage and Section
90 of the Indian Trusts Act have been clearly explained. The following discussion and
conclusion are relevant : AIR 1961 SC 1353, (Paras 5, 7 and 8)
"The following three conditions shall be satisfied before S. 90 of the Indian Trusts Act
can be applied to a case : (1) the mortgagee shall avail himself of his position as
mortgagee; (2) he shall gain an advantage; and (3) the gaining should be in derogation of
the right of the other persons interested in the property. The section, read with illustration
(c), clearly lays down that where an obligation is cast on the mortgagee and in breach of
the said obligation he purchases the property for himself, he stands in a fiduciary
relationship in respect of the property so purchased for the benefit of the owner of the
property. This is only another illustration of the well settled principle that a trustee ought
not to be permitted to make a profit out of the trust. The same principle is comprised in
the latin maxim commodum ex injuria sua nemo habere debet, that is, convenience
cannot accrue to a party from his own wrong. To put it in other words, no one can be
allowed to benefit from his own wrongful act. This Court had occasion to deal with a
similar problem in Sidhakamal Nayan v. Bira Naik AIR 1954 SC 336. There, as here, a
mortgagee in possession of a tenant's interest purchased the said interest in execution of a
decree for arrears of rent obtained by the landlord. It was contended there, as it is
contended here, that the defendant, being a mortgagee in possession, was bound to pay
the rent and so cannot take advantage of his own default and deprive the mortgagors of
their interest. Bose, J., speaking for the Court, observed at p. 337 thus :
"The position, in our opinion, is very clear and in the absence of any special statutory
provision to the contrary is governed by S. 90, Trusts Act. The defendant is a mortgagee
and, apart from special statutes, the only way in which a mortgage can be terminated as
between the parties to it is by the act of the parties themselves, by merger or by an order
of the Court. The maxim "once a mortgage always a mortgage" applies. Therefore, when
the defendant entered upon possession he was there as a mortgagee and being a
mortgagee the plaintiffs have a right to redeem unless there is either a contract between
the parties or a merger or a special statute to debar them."
These observations must have been made on the assumption that it was the duty of the
mortgagee to pay the rent and that he made a default in doing so and brought about the
auction sale of the holding which ended in the purchase by him. The reference to S. 90 of
the Indian Trusts Act supports this assumption.
Xxxx xxx xxxx
The legal position may be stated thus: (1) The governing principle is "once a mortgage
always a mortgage" till the mortgage is terminated by the act of the parties themselves,
by merger or by order of the court. (2) Where a mortgagee purchases the equity of
redemption in execution of his mortgage decree with the leave of court or in execution of
a mortgage or money decree obtained by a third party, the equity of redemption may be
extinguished; and, in that event, the mortgagor cannot sue for redemption without getting
the sale set aside. (3) Where a mortgagee purchases the mortgaged property by reason of
a default committed by him the mortgage is not extinguished and the relationship of
mortgagor and mortgagee continues to subsist even thereafter, for his purchase of the
equity of redemption is only in trust for the mortgagor.
Xxxx xxxx xxx
........................The said findings clearly attract the provisions of S. 90 of the Indian Trusts
Act. In view of the aforesaid principles, the right to redeem the mortgage is not
extinguished and in the eye of law the purchase in the rent sale must be deemed to have
been made in trust for the mortgagor. In the premises, the High Court was right in holding
that the suit for redemption
@page-SC2334
was maintainable."
10
. In Jayasingh Dnyanu Mhoprekar and another vs. Krishna Babaji Patil and another,
(1985) 4 SCC 162, again considering similar claim with reference to Section 83 of the
Transfer of Property Act and Section 90 of the Indian Trusts Act, this Court held : AIR
1985 SC 1646
"6. The only question which arises for decision in this case is whether by reason of the
grant made in favour of the defendants the right to redeem the mortgage can be treated as
having become extinguished. It is well settled that the right of redemption under a
mortgage deed can come to an end only in a manner known to law. Such extinguishment
of right can take place by a contract between the parties, by a merger or by a statutory
provision which debars the mortgagor from redeeming the mortgage. A mortgagee who
has entered into possession of the mortgaged property under a mortgage will have to give
up possession of the property when the suit for redemption is filed unless he is able to
show that the right of redemption has come to an end or that the suit is liable to be
dismissed on some other valid ground. This flows from the legal principle which is
applicable to all mortgages, namely "Once a mortgage, always a mortgage".....
9. An analysis of Section 90 of the Indian Trusts Act, 1882 set out above shows that if a
mortgagee by availing himself of his position as a mortgagee gains an advantage which
would be in derogation of the right of a mortgagor, he has to hold the advantage so
derived by him for the benefit of the mortgagor. We are of the view that all the conditions
mentioned in Section 90 of the Indian Trusts Act, 1882 are satisfied in this case. The
mortgagees i.e. Dnyanu, the father of Defendant 1 and Ananda the second defendant
could each get one-fourth share in the total extent of land measuring 22 Acres and 13
Gunthas only by availing themselves of their position as mortgagees. The grant made in
their favour is an advantage traceable to the possession of the land which they obtained
under the mortgage and that the said grant is certainly in derogation of the right of the
mortgagors who were the permanent Mirashi tenants entitled to the grant under the
Government Orders referred to above. The defendants could not have asserted their right
to the grant of the land when the plaintiffs had deposited the requisite occupancy price
well in time. It is seen that the mortgagees obtained the grant in their favour by making
an incorrect representation to the Government that they were permanent Mirashi tenants
although they were only mortgagees. Section 90 of the Indian Trusts Act, 1882 clearly
casts an obligation on a mortgagee to hold the rights acquired by him in the mortgaged
property for the benefit of the mortgagor in such circumstances as the mortgagee is
virtually in a fiduciary position in respect of the rights so acquired and he cannot be
allowed to make a profit out of the transaction............."
11. In Namdev Shripati Nale vs. Bapu Ganapati Jagtap and another, (1997) 5 SCC 185, in
a similar situation this Court held thus :
"6. We are of the view, that in the totality of the facts and circumstances, the provisions
of Section 90 of the Indian Trusts Act are attracted. The first respondent-mortgagee
gained an advantage by availing himself of his position as a possessory mortgagee and
obtained the regrant. This he did by committing a wrong. He committed a default in not
paying the occupancy price within the time limited by law for and on behalf of the
mortgagor. The regrant was obtained in his name by posing himself as a tenant, which
was possible only because he was in possession of the land (as a possessory mortgagee).
The advantage so gained by him in derogation of the right of the mortgagor should attract
the penal consequences of Section 90 of the Indian Trusts Act. We hold that the default
committed by a possessory mortgagee, in the performance of a statutory obligation or a
contractual obligation, which entails a sale or forfeiture of right in the property to the
mortgagor, will attract the provisions of Section 90 of the Indian Trusts Act. In such cases
any benefit obtained by the qualified owner, the mortgagee, will enure to or for the
benefit of the mortgagor. The right to redeem will subsist notwithstanding any sale or
forfeiture of the right of the mortgagor. We are of the view that the law on this point has
been laid down with admirable clarity by this Court in Mritunjoy Pani v. Narmanda Bala
Sasmal (1962) 1 SCR 290 and by K.K. Mathew, J. (as his Lordship then was) in Nabia
Yathu Ummal v. Mohd. Mytheen. [1963 KLJ 1177]. The said decisions have our
respectful concurrence. AIR 1961 SC 1353
AIR 1964 Ker 225
@page-SC2335
12
. Though Mr. Sanyal, learned senior counsel heavily relied on a decision of three-Judge
Bench in Sachidanand Prasad v. Babu Sheo Prasad Singh, [1966] 1 SCR 158, on going
through the factual scenario, we are satisfied that the same is not helpful to the stand
taken by the appellants. AIR 1966 SC 126
13. Though the mortgagee purchased the mortgaged property pursuant to the decree in
O.S. No. 120/51-52, as explained and interpreted the provisions of Order XXXIV Rule
14 CPC and Section 90 of the Indian Trusts Act, in the absence of recourse to Rule 14 of
Order XXXIV, we hold that the relationship of mortgagor and mortgagee continues to
subsist even thereafter, and his purchase is only in trust for the mortgagor. In view of the
same, the right to redeem the mortgage is not extinguished and in the eye of law the
purchase of the mortgaged property in pursuance of the decree for rent arrears must be
deemed to have been made in trust for the mortgagor. In such circumstances, the High
Court was right in granting preliminary decree for redemption. Insofar as the period of
limitation is concerned, article 61 of the Limitation Act, 1963 applies and for a mortgagor
to redeem or recover possession of immoveable property mortgaged; the period of
limitation provided is 30 years when the right to redeem or to recover possession accrues.
In view of the same, since the mortgagee purchased the mortgaged property in court
auction on 11-09-1952 and the suit for redemption of mortgaged property was filed
within the time prescribed, the High Court cannot be faulted for granting preliminary
decree for redemption.
14. In view of the above discussion and conclusion, the appeal fails and the same is
dismissed with no order as to costs.
Appeal dismissed.
AIR 2008 SUPREME COURT 2335 "P. R. Catering Co. v. Oil and Natural Gas
Corporation Ltd."
(From : Gauhati)*
Coram : 2 TARUN CHATTERJEE AND H. S. BEDI, JJ
Civil Appeal Nos.3534-3535 of 2001, D/- 13 -3 -2008.
M/s. P. R. Catering Co. and Anr v. Oil and Natural Gas Corporation Ltd. and Ors.
Arbitration Act (10 of 1940), S.30 - ARBITRATION - CONTRACT - Setting aside of
award - Catering contract - Contractor stayed by Court from providing services for
certain period - Contractor however raising bills for stay period - Dispute over payment
referred to arbitrator - Award passed by arbitrator in favour of contractor - Letters issued
by principal to contractor after vacation of stay to move to site - And register required to
be maintained of service provided datewise and userwise - Not considered - Award liable
to be set aside. (Paras 3, 5)
Vijay Hansaria, Sr. Adv., Mrs. Rachna Gupta, Dr. Indra Pratap Singh, for Appellants; K.P.
Pathak ASG, Ms. Rekha Pandey, for Respondents.
Judgement
HARJIT SINGH BEDI, J. :- These appeals arise out of the following facts.
2. The respondent, the Oil and Natural Gas Corporation Ltd. (hereinafter called the
"ONGC") invited tenders from qualified persons for providing catering services and
house-keeping facilities in two drilling sites at Dimapur, in Nagaland. The appellants,
M/s. P.R. Catering Company and several others submitted their quotations. As the rates
submitted by the appellants were acceptable, its tender was accepted and an agreement
entered between the parties on 21st September 1991 for the purpose of providing the
necessary facilities for a period of two years starting 1st October 1991. One of the
unsuccessful tenderers, Hotel Paradise however instituted a Civil Suit before the
Additional District Judge at Jorhat on which the appellants were restrained ad-interim
from acting in terms of the letter of intent issued by the ONGC and the ad-interim order
granted was made absolute on 28th May 1992. The ONGC filed an appeal before the
appellate court which vacated the injunction on 17th July 1992. The case of the ONGC is
that vide letters dated 1st October 1992 and 28th May 1993 the ONGC had asked the
appellants to provide the necessary services at two drilling sites whereas the case of the
appellants is that they were in fact already providing necessary facilities as per terms and
conditions of the contract and had accordingly submitted bills from time to time totalling
Rs. 56,42,940/- and though the ONGC had received the bills, it had refused to make any
payment in response thereto. The appellant thereafter approached the High Court for a
direction for the payment of its dues but the said writ application was dismissed on 18th
May 1993. The appellant then filed an application
@page-SC2336
in the Civil Court at Jorhat for appointment of an arbitrator as per terms of the contract
and vide order dated 22nd May 1994 Justice S.P. Rajkhowa, a retired Judge of the High
Court, was in fact appointed as the arbitrator. An appeal filed by the ONGC against the
order dated 22nd May 1994 was dismissed by the High Court on 30th January 1996. The
arbitrator thereafter made his award on 6th February 1996 granting the full amount
claimed by the appellants along with the interest at 16% per annum. The ONGC
thereupon filed an application for the setting aside of the award before the Civil Court at
Jorhat which was dismissed and the award made a rule of the court and a decree passed
accordingly. This order was challenged before the High Court on the following grounds :
"(1) That the learned arbitrator while making the award totally ignored vital documents
which has resulted in a faulty decision amounting to total perversity;
(2) That there was non-application of mind by the learned arbitrator and he has thus
committed legal misconduct;
(3) That the respondents were prevented by injunction issued by the court from rendering
services during the period from 1-10-1991 to 23-7-1992 and as such even if any service
was taken or given as claimed by the respondents, it was dehors/beyond the contract and
the learned arbitrator has no jurisdiction to pass any award for that period."
3. The High Court observed that the award given by the arbitrator was a reasoned and a
speaking one and that Section 30 of the Arbitration Act itself visualized its setting aside
on only three limited grounds (1) that the arbitrator or umpire had misconducted himself;
(2) that the award had been made after the supersession of the arbitration or the
proceedings becoming invalid; and (3) that it had been improperly procured or was
otherwise invalid. It was also observed that in the light of the well settled principles of
the law, proceedings under Section 30 of the Act did not visualize a drastic reappraisal of
the findings of the arbitrator unless there was a total perversity in the award and that if
two views were possible the one taken by the arbitrator was not liable to be interfered
with. The court then went on to the specific case put up by the parties and observed that
the ONGC had questioned the provision of services w.e.f. 1st October, 1991 as being
impossible on account of the injunction granted by the Civil Court and the fact that the
services had not been provided earlier was clear from the letters dated 1st October 1992
and 28th May 1993 directing the appellants to move to the site and to provide the
necessary services and as these two letters which went to the root of the matter (as to date
when the services started) had not been considered by the arbitrator, interference by the
court was called for. It was further observed that as per the terms of the contract the
appellants were under an obligation to maintain a common register Indicating therein a
date-wise, individual-wise and meal-wise account of those persons who had been given
the required services per day and that every employee receiving such benefit was
required to put his signature on it as a token of its correctness and that even this important
piece of evidence had been withheld by the appellants and had not been produced before
the arbitrator. The court accordingly concluded that the arbitrator had without any
evidence presumed that the appellants had provided the necessary services w.e.f. 1st
October, 1991 itself and once again wound up its decision citing a large number of
judgments and observing that as the two letters and the common register were material
documents which had not been considered by the arbitrator there was a manifest error
apparent on the face of the record and having held above, remitted the case to the
arbitrator for a fresh decision. Aggrieved thereby, the service provider is the appellant
before us in this appeal.
4. We have heard Mr. Vijay Hansaria, the learned senior counsel for the appellants and
Mr. K.P.Pathak, ASG for the respondents. We find that several arguments have been
raised by Mr. Vijay Hansaria in the course of the hearing pointing out that the appeal did
not justify interference by the High Court inasmuch as the findings of fact recorded by
the arbitrator were based on a proper assessment of the evidence that included the
monthly bills raised by the appellants duly certified by officers of the ONGC and also
letters dated 5th October 1992 and 23rd June 1993 from the ONGC that the bills
submitted by the appellants were under consideration pending payment and it had never
been the case of the ONGC except in proceedings before the arbitrator
@page-SC2337
and the High Court that the bills submitted were fake. The learned counsel for the ONGC
respondents has, however, supported the order of the High Court.
5. We are of the opinion that it would not be proper to labour the matter any further in
view of the fact that we Intend to maintain the order of the High Court and to make any
comment on the merits could prejudice the case of one of the parties. We accordingly
dismiss the appeals but request the arbitrator to complete the arbitration proceedings
within three months from the date of the supply of the copy of this order. There will be no
order as to costs.
Appeal dismissed.
AIR 2008 SUPREME COURT 2337 "K. Raghunandan v. Ali Hussain Sabir"
-2008.
K. Raghunandan and Ors. v. Ali Hussain Sabir and Ors.
Registration Act (16 of 1908), S.17(2)(vi) - DOCUMENTS - DECREE - INJUNCTION -
COMPROMISE - Compromise decree - Registration - Necessity - Plaintiff and defendant
owner of adjacent lands-Injunction suit by plaintiff - Compromise demarcating each
other's properties entered - Decrees in terms of compromise passed - Plaintiff
subsequently claiming title to passage on basis of compromise decree - Suit passage was
not subject-matter in injunction suit - Plaintiff claiming that suit passage was exclusively
given in lien of portion of his land - Transaction amounts to transfer of property not
subject-matter of suit - Compromise decree need to be registered. (Paras 21, 29)
2006 AIR SCW 4806 : AIR 2006 SC 3297 : 2006 (6) AIR Kar R 256 (Explain) 11, 23,
28
(2006) 10 SCC 782 23
1995 AIR SCW 3927 : AIR 1996 SC 196 (Rel. on) 11, 21, 22, 27, 28
AIR 1989 PunjHar 324 27
1984 Pun LJ 562 27
AIR 1981 Bom 52 27
AIR 1971 Mad 182 (Disting.)23, 26
AIR 1960 Pat 179 (Disting.) 23, 25
AIR 1956 SC 346 23
AIR 1954 SC 352 23
AIR 1953 Pat 178 25
AIR 1951 Pat 299 325
H.S. Gururaja Rao, Sr. Advocate, Y. Raja Gopala Rao, Y. Ramesh and Ms. Y. Vismai for
Appellants; P.S. Narslmha, Somiran Sharma, Aribam Guneshwar Sharma, for
Respondents.
* LPA Nos. 163 and 229 of 2000 and Rev. C.M.P. No. 591 of 2002, D/- 31-03-2001 and
24-06-2005 (AP), respectively.
Judgement
2. Application of Section 17(2)(vi) of the Registration Act, 1908 (for short "the Act") in
the facts and circumstances of this case is in question in this appeal which arises out of a
judgment and order dated 31-3-2001 passed by the High Court of Andhra Pradesh at
Hyderabad in L. P. A. Nos. 163. and 229 of 2000.
3. Appellants are neighbours. The dispute between the parties relate to a passage.
Plaintiffs - Appellants claimed to have purchased 590 sq. yards of premises No. 5-4-413
to 415 at Nampally, Hyderabad from one P. N. Vijaya Lakshmi, Allegedly, another 259
sq. yards of land was also purchased by them from the said vendor. When they had been
proceeding with the construction of the building, allegedly, respondents interfered.
A suit bearing No. O. S. No. 76 of 1975 was filed claiming for a decree for perpetual
injunction. The said suit ended in a compromise, the terms whereof are as under :
"1. That the portion marked Green in the plan shall be exclusively enjoyed by the
Defendant without any interference from the plaintiffs. The plaintiffs hereby admit that
this portion of land marked Green in the plan attached with the Memo of compromise
belongs to the Defendant No. 1 and his brother Sri Noman Ali son of Sri Abdul Khader,
Defendant No. 2.
2. That the portion marked Red will be enjoyed by the plaintiffs exclusively without any
interference with the Defendants or his agents.
3. That all other claims against Defendant in the suit are hereby withdrawn by the
plaintiffs."
4. A map was annexed to the consent terms. All the properties shown in the red were
accepted to be the properties of the
@page-SC2338
plaintiffs and the defendants had allegedly agreed not to interfere with their possession. It
was stated that a passage running from north to south connecting Mukarramjahi Road
was shown to be the exclusive property of the plaintiffs. It was furthermore alleged that
the respondents father was a tenant in the premises bearing No. 5-4-412. The said
property was purchased by the respondent No. 1 in a public auction held on 8-11-1957.
The extent of the land which was the subject matter is in dispute.
5. Respondents admittedly had constructed shops on Moajamjahi road with a huge
opening on the main road. The defendants despite the said consent terms made attempt to
fix an old door on the eastern side of their wall making an opening on the purported
private passage belonging to the appellants.
Respondents, however, contended that the appellants have no exclusive right over the
scheduled property, i.e., passage measuring 80 yards situated at Nampally, Hyderabad.
According to them, the passage in question was a common passage.
6. Appellants filed a suit which was marked as O. S. No. 341 of 1993 for a declaration
that the suit passage, as shown in the red marked A, B, C and D in the plaint is their
private property.
7. Respondents filed a suit for perpetual injunction which was marked as O. S. No. 1132
of 1993, and renumbered as O. S. No. 769 of 1994, seeking injunction against the
appellants from interfering with their usage of the passage. It was alleged that the
appellants tampered with the plan by adding the word "plaintiffs" above the word
"passage" in the plan.
8. The said suits were consolidated; the claims of the parties having common issues. The
issues framed were :
"In O. S. No. 341/93
(1) Whether the plaintiffs are entitled for the relief of declaration as prayed for?
(2) Whether the plaintiffs are entitled for perpetual injunction as prayed for?
(3) Whether the plaintiffs are entitled for mandatory injunction as prayed for?
(4) To what relief?
In O. S. No. 769/1994
(I) Whether the plaintiffs are entitled for the relief of perpetual injunction as prayed for?
(2) To what relief?"
The learned Senior Civil Judge, City Civil Court, Hyderabad by a common judgment
decreed O. S. No. 341 of 1993 and dismissed the suit filed by the respondents viz. O. S.
No. 769 of 1994.
9. Appeals were preferred thereagainst by the respondents. Whereas the learned Trial
Judge held that the compromise decree conferred a right on the appellants in respect of
the passage in question, the First Appellate Court opined that the suit passage was not the
subject matter of compromise and in any event the same did not confer any exclusive
right, title and interest thereto upon the appellants.
10. Two Letters Patent Appeals were preferred thereagainst by the appellants, which have
been dismissed by reason of the impugned judgment inter alia on the premise that the
compromise decree being not registered, no claim relying on or on the basis thereof could
form the basis of the suit.
11. Mr. H. S. Gururaja Rao, learned senior counsel appearing on behalf of the appellants,
would submit that a consent decree not only operates as estoppel by judgment, even the
general principles of res judicata would be applicable.
The High Court, it was submitted, thus, committed a serious error in relying on the
decision of this Court in Bhoop Singh v. Ram Singh Major and Others ((1995) 5 SCC
709) which has been distinguished in Som Dev and Others v. Rati Ram and Another
((2006) 10 SCC 788) and, thus, the impugned judgment cannot be sustained. 1995
AIR SCW 3927
2006 AIR SCW 4806
12. Mr. P. S. Narsimha, learned counsel appearing on behalf of the respondents, on the
other hand, submitted that the First Appellate Court having arrived at a question of fact
that the plaintiffs - appellants did not derive any right, title and interest in the passage by
reason of the said compromise and /or in any event the plaintiffs -appellants having not
claimed any right, title and interest thereupon in the suit, the compromise decree required
registration.
13. O. S. No. 76 of 1975 admittedly was a suit for injunction. The plaint of the said suit is
not before us. It, however, appears from the judgment of the First Appellate Court that the
passage was not the subject matter of compromise in the said O. S. No. 76 of 1975. This
fact is not disputed.
@page-SC2339
14. The First Appellate Court as also the High Court analysed the materials brought on
record.
The question which would arise for our consideration is as to what would be the effect of
admitted case of the parties that the suit passage was not the subject matter thereof.
We have noticed hereinbefore that the parties joined issues as to whether the word
"plaintiffs" was added before the word "passage" in the plan annexed to the consent terms
or not. We have also noticed hereinbefore that the portion marked in red was allotted to
the plaintiffs appellants and that marked in green was allotted to the defendants -
respondents. Appellant No. 1, examined himself as PW-1. He admitted that in the
compromise memo there was no mention about the suit passage. He also admitted that he
had not claimed the suit passage in the said suit. He also admitted that his vendor had
provided the suit passage for his use. A finding of fact has been arrived at that the passage
was not shown either in the areas demarcated in red or green.
15. With a view to determine the issue as to whether the passage could have been the
subject matter of compromise, the parties adduced evidence. The building plan submitted
by the appellants before the Municipality was brought on record. The passage was shown
as a road which means a public road. A finding of fact had been arrived at that there was
nothing on record to show that the passage was a private one. The High Court, in our
opinion, rightly came to the conclusion that the plan must be read in terms of the memo
filed and as the passage did not form part of the building plan, prima facie, it was
common to both. It has furthermore been found that the defendants had no other
motorable road for approach to their factory which is being run on premises No. 5-4-412.
16. Sub-section (1) of Section 17 of the Act specifies the documents of which registration
is compulsory; clauses (b), (c) and (e) whereof read as under :
"17. Documents of which registration is compulsory
(1) The following documents shall be registered, if the property to which they relate is
situate in a district in which, and if they have been executed on or after the date on which,
Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration
Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force,
namely :-
(a) ******
(b) other non-testamentary instruments which purport or operate to create, declare,
assign, limit or extinguish, whether in present or in future, any right, title or interest,
whether vested or contingent, of the value of one hundred rupees and upwards, to or in
immovable property;
(c) non-testamentary instruments which acknowledge the receipt or payment of any
consideration on account of the creation, declaration, assignment, limitation or extinction
of any such right, title or interest; and
(d) ********
(e) non-testamentary instruments transferring or assigning any decree or order of a Court
or any award when such decree or order or award purports or operates to create, declare,
assign, limit or extinguish, whether in present or in future, any right, title or interest,
whether vested or contingent, of the value of one hundred rupees and upwards, to or in
immovable property:
Provided that the State Government may, by order published in the Official Gazette,
exempt from the operation of this sub-section any lease executed in any district, or part of
a district, the terms granted by which do not exceed five years and the annual rents
reserved by which do not exceed fifty rupees."
17. Sub-section (2) of Section 17 of the Act, however, carves out an exception therefrom
stating that nothing in clauses (b) and (c) of sub-section (1) of Section 17 would inter alia
apply to "any decree or order of a Court except a decree or order expressed to be made on
a compromise and comprising immovable property other than that which is the subject
matter of the suit or proceeding". Even if the passage was not the subject matter of the
suit, indisputably, in terms of the Code of Civil Procedure Amendment Act, 1976, a
compromise decree was permissible.
18. A plain reading of the said provision clearly shows that a property which is not the
subject matter of the suit or a proceeding would come within the purview of exception
contained in clause (vi) of sub-section (2) of Section 17 of the Act. If a compromise
@page-SC2340
is entered into in respect of an immovable property, comprising other than that which was
the subject matter of the suit or the proceeding, the same would require registration. The
said provision was inserted by Act 21 of 1929.
19. The Code of Civil Procedure Amendment Act, 1976 does not and cannot override the
provisions of the Act. The purported passage being not the subject matter of the suit, if
sought to be transferred by the defendants - respondents in favour of the plaintiffs -
appellants or if by reason thereof they have relinquished their own rights and recognized
the rights of the plaintiffs - appellants, registration thereof was imperative. The First
Appellate Court held so. The High Court also accepted the said findings.
20. Mr. Gururaja Rao is, therefore, not correct in contending that the High Court has not
gone into the said question. The High Court clearly affirmed the findings of fact arrived
at by the learned First Appellate Court.
It had, however, gone into the legal question as to whether insertion of the word
"plaintiffs" before the word "passage" was an act of interpolation on the part of the
appellants or not, stating:
"There is also some confusion with regard to the plan itself. Whereas the plaintiffs claim
that the plan showed the passage as plaintiffs' passage the defendants claim and submitted
a certified copy showing that the passage was shown only as 'passage' and the word
'plaintiffs' was an act of interpolation. Even without going into that controversy and
believing that the memo stated the passage as plaintiffs' passage could it still be enforced
by this Court would be a question. The case of the plaintiffs is that they had given up
claim to 150 yards of land which was to the rear side of their property and in lieu of it the
passage was exclusively given to the plaintiffs. This assertion in itself would show that
even before the compromise the passage was being used by the defendants but whether
the right over the passage by the defendants was given up by them in lieu of 150 yards of
land cannot be gone into because the compromise could not be enforced as it was not a
registered compromise...."
21
. Appellants have given up their claim of 150 yards of land which was to be on the rear
side of the property and in lieu thereof the passage was exclusively given to the plaintiffs
- appellants. Thus, the appellants have rested its case on the basis of an exchange of land
between the plaintiffs and defendants. The High Court opined that as by reason thereof an
inference can be drawn that the defendants who had been in possession of the passage
had given up their rights in lieu of 150 yards of land, the same would constitute a transfer
of property and, thus, necessitated registration. It was in the aforementioned situation the
High Court relied upon the decision of this Court in Bhoop Singh (supra). 1995 AIR
SCW 3927
22. Bhoop Singh (supra), inter alia, lays down :

"(1) Compromise decree if bona fide, in the sense that the compromise is not a device to
obviate payment of stamp duty and frustrate the law relating to registration, would not
require registration. In a converse situation, it would require registration.
(2) If the compromise decree were to create for the first time right, title or interest in
immovable property of the value of Rs. 100 or upwards in favour of any party to the suit
the decree or order would require registration."
23. Thus, indisputably, if the consent terms create a right for the first time as contra
distinguished from recognition of a right, registration thereof would be required, if the
value of the property is Rs. 100/- and upwards.
Strong reliance has been placed by Mr. Gururaja Rao on Tulsan v. Pyare Lal and others
((2006) 10 SCC 782), Som Dev (supra), Shankar Sitaram Sontakke and another v.
Balkrishna Sitaram Sontakke and others (1955 (1) SCR 99), Raja Sri Sailendra Narayan
Bhanja Deo v. The State of Orissa (1956 SCR 73), Ramdas Sah and another v. Jagarnath
Prasad and others (AIR 1960 Patna 179) and M. Pappu Reddiar (died) and others v.
Amaravathi Ammal and others (AIR 1971 Madras 182). 2006 AIR SCW 4806
AIR 1956 SC 352
AIR 1956 SC 346
24. In view of the point involved in this appeal, we need not go into the question as to
whether a consent decree would attract the principles of res judicata or estoppel by
judgment. We will assume (although there may be some doubt or dispute with regard to
the said proposition that the said principles
@page-SC2341
are applicable. The question, as indicated hereinbefore, however, is as to the effect
thereof.
25
. In Ramdas Sah (supra), a Division Bench observed : AIR 1960 Pat 179
"2. The first point taken on behalf of the appellants is that the compromise decree in Title
Suit No. 2 of 1948 required registration, because plot No. 2240 was outside the scope of
the suit, and in the absence of registration the compromise decree was not effective with
regard to plot No. 2240. We do not think there is any substance in this argument. It
appears that the plaintiff in the partition suit in the present case claimed exclusive title to
plot No. 2240 but sought a decree for partition with regard to other properties.
In the compromise decree there was an agreement between the parties that plot No. 2240
be exclusively allotted to the plaintiff and since the title of the plaintiff to plot No. 2240
was taken as part of the consideration for the compromise entered into between all the
parties and since it is an integral part of the compromise it is obvious that title to plot No.
2240 was within the scope of the partition suit and the decree is operative even with
regard to plot No. 2240 in the absence of registration. The point has been fully dealt with
in a judgment of this Court in Miscellaneous Appeal No. 237 of 1953, decided on the
27th July, 1955, and also in two other decisions, Ramjanam Tewary v. Bindeshwari Bai,
AIR 1951 Pat 299 and Jagdish Chandra Sinha and another v. Dr. Sir Kameshwar Singh
Bahadur, AIR 1953 Pat 178.
The question whether a particular term of a compromise relates to the subject matter of.
the suit is obviously a question to be answered on the frame of the particular suit, the
relief claimed in the suit and the matters arising for decision on the pleadings of the
parties. The term is comprehensive enough, and if the compromise relates to all the
matters which fall to be decided in the case, it cannot be said that any part of the
compromise is beyond the subject matter of the suit."
It was clearly held that the subject matter of the suit was the subject matter of
compromise. Having held so, it was opined:
"In other words where the compromise is really an adjustment of the rights and
differences in respect of all matters in dispute between the parties and the compromise
purports to be a final settlement and adjustment of these disputes on a fair and
satisfactory basis acceptable to all, it must be held to relate to the suit. Applying the
principle to the present case we hold that the title to plot No. 2240 was the subject matter
of the compromise and adjustment between the parties and so it falls within the scope of
the suit and the compromise decree does transfer title to plot No. 2240 even without it
being registered."
26
. The said decision was followed by the Madras High Court in M. Pappu Reddiar (supra).
In the fact situation obtaining therein, it was held that the subject matter of the
compromise was inseparable from the other provisions of the compromise decree and
constituted part of the consideration for the compromise holding that the subject matter of
the suit is not synonymous with subject matter of the plaint. It was in the peculiar facts of
the said case, the Court opined: AIR 1971 Mad 182
"....If the consent decree or order in the suit or proceeding covered the properly, although
it was not in the plaint or in dispute, such property constituting, as it does, an inseparable
part of the consideration for the compromise, may well, in our view, be regarded as the
subject matter of the suit. This is because of the decree passed on the basis of the
compromise cannot stand without that property. If by the amendment it was intended that
if the property was not in the plaint schedule, the consent decree should not be exempted
from registration, we are afraid the phraseology actually employed by Section 17(2) (vi)
has failed to achieve the objective. We are aware that the extended scope we have given
to the expression "subject matter of the suit" may narrow down the scope of the exclusion
from exemption from registration under that provision....."
The said decisions, therefore, cannot be said to have any application in the present case.
27
. In Bhoop Singh (supra), this Court referring to Gurdev Kaur v. Mehar Singh (AIR 1989
PandH 324) and Ranbir Singh v. Shri Chand (1984 Pun LJ 562) as also a decision of the
Bombay High Court in Sumintabai Ramkrishna Jadhav v. Rakhmabai Ramkrishna Jadhav
(AIR 981 Bom 52) held : 1995 AIR SCW 3927
"13. In other words, the Court must enquire

@page-SC2342
whether a document has recorded unqualified and unconditional words of present demise
of right, title and interest in the property and included the essential terms of the same; if
the document, including a compromise memo, extinguishes the rights of one and seeks to
confer right, title or interest in praesenti in favour of the other, relating to immovable
property of the value of Rs. 100/- and upwards, the document or record or compromise
memo shall be compulsorily registered".
It was further observed :
"16. We have to view the reach of clause (vi), which is an exception to sub-section (1),
bearing all the aforesaid in mind. We would think that the exception engrafted is meant to
cover that decree or order of a Court, including a decree or order expressed to be made on
a compromise, which declares the pre-existing right and does not by itself create new
right, title or interest in praesenti in immovable property of the value of Rs. 100/- or
upwards. Any other view would find the mischief of avoidance of registration, which
requires payment of stamp duty, embedded in the decree or order.
17. It would, therefore, be the duty of the Court to examine in each case whether the
parties have pre-existing right to the immovable property, or whether under the order or
decree of the Court one party having right, title or interest therein agreed or suffered to
extinguish the same and created right, title or interest in praesenti in immovable property
of the value of Rs. 100/- or upwards in favour of other party for the first time, either by
compromise or pretended consent. If a latter be the position, the document is
compulsorily registrable."
28
. The decision of this Court in Som Dev (supra) did not lay down any law which runs
contrary to or inconsistent with the law laid down in Bhoop Singh (supra). Bhoop Singh
(supra) was distinguished on fact stating : 2006 AIR SCW 4806
1995 AIR SCW 3927
"18. Therefore, it was a case of the right being created by the decree for the first time
unlike in the present case. In para 13 of that judgment it is stated that the Court must
enquire whether a document has recorded unqualified and unconditional words of present
demise of right, title and interest in the property and if the document extinguishes that
right of one and seeks to confer it on the other, it requires registration. But with respect, it
must be pointed out that a decree or order of a Court does not require registration if it is
not based on a compromise on the ground that clauses (b) and (c) of Section 17 of the
Registration Act are attracted. Even a decree on a compromise does not require
registration if it does not take in property that is not the subject matter of the suit. A
decree or order of a Court is normally binding on those who are parties to it unless it is
shown by resort to Section 44 of the Evidence Act that the same is one without
jurisdiction or is vitiated by fraud or collusion or that it is avoidable on any ground
known to law. But otherwise that decree is operative and going by the plain language of
Section 17 of the Registration Act, particularly, in the context of sub-clause (vi) of sub-
section (2) in the background of the legislative history, it cannot be said that a decree
based on admission requires registration. On the facts of that case, it is seen that their
Lordships proceeded on the basis that it was the decree on admission that created the title
for the first time. It is obvious that it was treated as a case coming under Section 17(1) (a)
of the Act though the scope of Section 17(2) (vi) of the Act was discussed in detail. But
on the facts of this case, as we have indicated and as found by the Courts, it is not a case
of a decree creating for the first time a right. title or interest in the present plaintiff and his
brother. The present is a case where they were putting forward in the suit a right based on
an earlier transaction of relinquishment or family arrangement by which they had
acquired interest in the property scheduled to that plaint. Clearly, Section 17(1) (a) is not
attracted...."
(Emphasis supplied)
In Som Dev (supra), the plaintiff claimed half share in the property. The defence was that
the right of the plaintiff having been created under a compromise and the same having not
been registered the same could not be enforced as against the contesting defendants or
their assignor, the other co-owner. The High Court opined that the suit was based on a
family settlement which did not require registration and, thus, would come within the
purview of Section 17(2)(vi) of the Act. It was on the basis of the said finding of fact, the
law was laid down stating: 2006 AIR SCW 4806
@page-SC2343
"...Of course, we are not unmindful of the line of authorities that say that even if there is
inclusion of property that is not the subject-matter of the suit, if it constitutes the
consideration for the compromise, such a compromise decree would be considered to be a
compromise relating to the subject-matter of the suit and such a decree would also not
require registration in view of clause (vi) of Section 17 (2) of the Registration Act. Since
we are not concerned with that aspect here, it is not necessary to further deal with that
question. Suffice it to say that on a plain reading of clause (vi) of Section 17(2) all
decrees and orders of the Court including a compromise decree subject to the exception
as regards properties that are outside the subject-matter of the suit, do not require
registration on the ground that they are hit by Section 17(1)(b) and (c) of the Act. But at
the same time, there is no exemption or exclusion, in respect of clauses (a), (d) and (e) of
Section 17(1) so that if a decree brings about a gift of immovable property, or lease of
immovable property from year to year or for a term exceeding one year or reserving an
early rent or transfer of a decree or order of a Court or any award creating, declaring,
assigning, limiting or extinguishing rights to and in immovable property, that requires to
be registered."
29. A statute must be construed having regard to the purpose and object thereof. Sub-
section (1) of Section 17 of the Act makes registration of the documents compulsory.
Sub-section (2) of Section 17 of the Act excludes only the applications of Clauses (b) and
(c) and not clause (e) of sub-section (1) of Section 17. If a right is created by a
compromise decree or is extinguished, it must compulsorily be registered. Clause (vi) is
an exception to the exception. If the latter part of Clause (vi) of sub-section (2) of Section
17 of the Act applies, the first part thereof shall not apply. As in this case not only there
exists a dispute with regard to the title of the parties over the passage arid the passage,
itself, having not found the part of the compromise, we do not find any infirmity in the
impugned judgment.
The appeal is accordingly dismissed with costs. Counsel's fee assessed at Rs. 25,000/-.
Appeal dismissed.
AIR 2008 SUPREME COURT 2343 "Mahabir v. State of Delhi"
(From : 2007 (139) Delhi LT 155)
Criminal Appeal No. 932 with 1475 of 2007, D/- 11 -4 -2008.
Mahabir v. State of Delhi.
(A) Evidence Act (1 of 1872), S.9 - IDENTIFICATION PARADE - EVIDENCE - Test
identification parade - Do not constitute substantive evidence - Identification can only be
used as corroborative of statement in Court.
AIR 1971 SC 1050, AIR 1973 SC 2190, Foll. (Para 11)
(B) Evidence Act (1 of 1872), S.9 - IDENTIFICATION PARADE - WITNESS - Test
Identification parade - Necessity for holding parade can arise only when accused persons
are not previously known to witnesses. (Para 11)
(C) Evidence Act (1 of 1872), S.9 - IDENTIFICATION PARADE - WITNESS -
Identification parade - Holding of - Main object, during investigation stage, is to test
memory of witnesses based upon first impression - And also to enable prosecution to
decide whether all or any of them could be cited as eye-witnesses of crime. (Para
11)
(D) Evidence Act (1 of 1872), S.9 - IDENTIFICATION PARADE - Test identification
parade - Should be conducted as soon as possible after arrest of accused - This becomes
necessary to eliminate possibility of accused being shown to witnesses prior to parade.
(Para 11)
(E) Evidence Act (1 of 1872), S.9 - IDENTIFICATION PARADE - Test identification
parade - Purpose is to test and strengthen trustworthiness of that evidence - It is
accordingly considered a safe rule of prudence to generally look for corroboration of
sworn testimony of witnesses in Court - This rule of prudence is, however, subject to
exceptions. (Para 12)
(F) Evidence Act (1 of 1872), S.9 - IDENTIFICATION PARADE - Test identification
parades - Belong to stage of investigation - There is no provision in Criminal P.C. which
obliges investigating agency to hold or confers a right upon accused to claim test
identification parade. (Para 12)
@page-SC2344
(G) Evidence Act (1 of 1872), S.9 - Criminal P.C. (2 of 1974), S.162 -
IDENTIFICATION PARADE - INVESTIGATION - Test identification parades - Are
essentially governed by S.162 of Code - Failure to hold same would not make
inadmissible evidence of identification in Court.
AIR 1971 SC 363, AIR 1975 SC 1814, Relied on. (Para 12)
(H) Evidence Act (1 of 1872), S.9 - IDENTIFICATION PARADE - EVIDENCE - Test
identification parade - In appropriate cases, Courts may accept evidence of identification
even without insisting on corroboration.
AIR 1960 SC 1340, AIR 1970 SC 1321, AIR 1958 SC 350, AIR 1972 SC 102, Foll.
(Para 12)
(I) Evidence Act (1 of 1872), S.9 - IDENTIFICATION PARADE - WITNESS -
EVIDENCE - Test identification parade - Identifying witness was a total stranger who
had just a fleeting glimpse of person identified or had no particular reason to remember
him - Much evidentiary value cannot be attached to identification of accused in Court.
(Para 15)
(J) Penal Code (45 of 1860), S.394, S.300 - Evidence Act (1 of 1872), S.9 - ROBBERY -
MURDER - IDENTIFICATION PARADE - Robbery and murder - Conviction based on
identification - Sustainability - Appellant and his associates allegedly beat complainant in
her house, robbed her ornaments and murdered maid-servant - Appellant was brought to
hospital and shown to complainant at time of arrest - Subsequently, she identified
appellant in Court - Test identification parade was really of no consequence - Conviction
of appellant based on identification is liable to be set aside.
1999 AIR SCW 4770, AIR 1978 SC 1770, 2003 AIR SCW 3336, Relied on. (Para
21)
(K) Penal Code (45 of 1860), S.394, S.300 - Evidence Act (1 of 1872), S.9 - ROBBERY -
MURDER - IDENTIFICATION PARADE - Robbery and murder - Appellant and other
accused allegedly murdered maidservant after committing robbery in complainants' house
- Identification of said other accused - Complainant knew accused six years prior to
incident - He had come to house many times - There was no difficulty in identifying
accused and naming him in FIR - Conviction of accused is proper. (Para 21)
AIR 1980 SC 1382 : 1980 Cri LJ 965 19
AIR 1978 SC 1770 (Rel. on) 18
AIR 1973 SC 2190 : 1973 Cri LJ 1176 (Foll.) 11
AIR 1972 SC 102 : 1972 Cri LJ 15 (Foll.) 12
AIR 1971 SC 363 : 1971 Cri LJ 305 (Rel. on) 13, 14
AIR 1971 SC 1050 : 1971 Cri LJ 913 (Foll.) 11
AIR 1970 SC 1321 : 1970 Cri LJ 1149 (Foll.) 12
AIR 1960 SC 1340 : 1960 Cri LJ 1681 (Foll.) 12
AIR 1958 SC 350 : 1958 Cri LJ 698 (Foll.) 12
(1957) Cri. Appeal No. 92 of 1956, D/- 15-1-1957(SC) 13
Braham Singh, P.K. Bajaj, Shivpati B. Pandey and S.K. Sabharwal, for Appellant; B.B.
Singh, Subhash Kaushik and D.S. Mahra, for Respondent.
Judgement
1. Dr. ARIJIT PASAYAT, J. :- These two appeals are directed against the common
judgment of the Delhi High Court in Criminal Appeal Nos. 430 of 2002 and 328 of 2005.
It needs to be noted that by the said common judgment three appeals i.e. Criminal Appeal
Nos. 430/2002, 545/2003 and 328/ 2005 were disposed of.
2. Appellant-Mahabir (appellant in Criminal Appeal No. 932 of 2007) was appellant in
Criminal Appeal No. 430 of 2002 and appellant Jalvir (appellant in Criminal Appeal No.
1475 of 2007 was appellant in Criminal Appeal No. 328 of 2005). Each of them was
convicted for offence punishable under Section 394 read with Section 34, and section 302
read with section 34 of the Indian Penal Code, 1860 (in short 'IPC'), and was sentenced to
imprisonment for 10 years
@page-SC2345
with fine and imprisonment for life with fine respectively, with default stipulation in each
case for the aforesaid offences.
Smt. Seema Sharma gave statement to the police alleging that on 24.2.1997 at about 4.15
p.m. she was present in her house bearing No. 28-B, pocket-B Sidharth Extension, New
Delhi when she heard her door bell ringing and her maid servant Kamla @ Kharpai went
to open the door. Accused Jalveer who is related to the complainant along with his three
associates entered the house. Complainant was standing in the balcony where all the four
reached. All the three associates of Jalveer took out knives, Jalveer also took out knife
from his pocket. Two of the associates of accused-Jalveer caught hold of the complainant
and dragged her to her bed room where she was beaten and accused made enquiries about
gold kept in her house and when she did not give any information, they kicked her on her
stomach. They removed a gold chain along with locket and jumkas with chain from her
ear. When Kamla, the maid-servant of the complainant, tried to intervene, two of the
associates of the accused-Jalveer tied a blouse around the neck of the complainant as a
result of which she became unconscious for sometime. After sometime she heard the
screams of Kamla @ Kharpai, her maid-servant, and when she saw, a nylon string was
tied around her neck and she was lying on the floor, Jalveer along with his associate
thereafter fled away from the spot. Complainant was admitted in the hospital. Police
party reached at the spot, dead body of Kamla was removed to AIIMS where postmortem
was conducted on her dead body. Subsequently, accused Mahabir and Mahesh were
arrested by the police of police station Hazrat Nizamuddin. A VCR, earrings of this case
belonging to complainant were recovered from their possession. They made disclosure
statements regarding this case, therefore, they were arrested in the present case. Police
applied for holding TIP of accused Mahesh and Mahabir but they refused to join the
proposed TIP. The TIP of jewellery articles and VCR recovered from the accused
Mahabir and Mahesh was done by the Metropolitan Magistrate. The complainant
correctly identified the articles as well as the jewellery recovered from the possession of
these accused persons. Subsequently, accused Jalveer was arrested in this case and Roopa
was also formally arrested in this case after production warrants were issued.
Photographs of the place of incident were taken, site plan was got prepared, finger prints
were lifted from the place of incident. Statement of witnesses were recorded by the police
and after investigation of the case they came to the conclusion that the accused persons
committed the murder of maid-servant Kamla and they also committed robbery in the
house of the complainant. Accordingly, challan was filed.
After complying with the provision of Section 207 of the Code of Criminal Procedure,
1973 (hereinafter referred to as the 'Code') learned Metropolitan Magistrate committed
the case to the Court of Session which in turn assigned the same to learned Additional
Sessions Judge for trial in accordance with law.
4. In order to establish its accusations the prosecution examined 19 witnesses out of
which Smt. Seema Sharma (PW-4) was the eye-witness to the Incident. Placing reliance
on her evidence and the test identification parade of the accused persons and the articles,
the Trial Court convicted both and sentenced as aforesaid.
5. Before the High Court the primary stand was that PW4 had accepted to have seen the
accused Mahabir at the time of his arrest and, therefore, the test identification parade was
of no consequence and rightly accused-appellant Mahabir had refused to take part in it.
So far as accused Jalvir is concerned, it was stated that the complainant did not know his
father's name and address and, therefore, could not have made accusations so far as he is
concerned. It was also pointed out that in the first information report name of Jalvir was
mentioned though PW4 herself accepted that she was unconscious for four days.
6-7. The High Court did not find any substance in such plea. It noted that though accused
was shown to her, that actually did not dilute the evidentiary value and also that was not
relevant as the accused refused to take part in the test identification parade. It was also
noted that accused Jalvir was known to the witness and, therefore, there was no difficulty
in mentioning his name in the first information report. Accordingly, the conviction and
sentence as recorded by the Trial Court came to be affirmed.
@page-SC2346
8. In support of the appeals, learned counsel for the appellant submitted that the
identification after the accused was shown to the witness is really of no consequence.
Further, so far as accused Jalvir is concerned, he is barely known to PW4. He was not a
frequent visitor to the house of the accused and, therefore, it was not possible for her to
identify the said accused.
9. Learned counsel for the respondent-State supported the impugned order of the High
Court which affirmed the conviction and sentence as recorded by the Trial Court.
10. We shall deal with the appeal filed by the accused Mahabir. From the evidence of
PW4 it is clear that after the incident accused-Mahabir and Mahesh were shown to PW4
at the time of their arrest. In fact, police brought many persons for identification of
culprits and identified Mahabir and Mahesh to PW4. She admitted that these two persons
were brought to the hospital. Subsequently, she had identified them in Court. So far as
recovery of the VCR is concerned, which was treated as a ground for holding Mahabir
and Jalvir guilty, she accepted that it was not told to her about recovery of VCR. She was
told by the police that VCR had been recovered after the police persons had brought
Mahabir and Mahesh. Interestingly, she also accepted that Mahabir and Mahesh were
brought to the hospital where she was asked to identify them.
11
. As was observed by this Court in Matru v. State of U.P. (1971 (2) SCC 75) identification
tests do not constitute substantive evidence. They are primarily meant for the purpose of
helping the investigating agency with an assurance that their progress with the
investigation into the offence is proceeding on the right lines. The identification can only
be used as corroborative of the statement in court. (See Santokh Singh v. Izhar Hussain
(1973 (2) SCC 406). The necessity for holding an identification parade can arise only
when the accused are not previously known to the witnesses. The whole idea of a test
identification parade is that witnesses who claim to have seen the culprits at the time of
occurrence are to identify them from the midst of other persons without any aid or any
other source. The test is done to check upon their veracity. In other words, the main
object of holding an identification parade, during the investigation stage, is to test the
memory of the witnesses based upon first impression and also to enable the prosecution
to decide whether all or any of them could be cited as eyewitnesses of the crime. The
identification proceedings are in the nature of tests and significantly, therefore, there is no
provision for it in the Code and the Indian Evidence Act, 1872 (in short the 'Evidence
Act'). It is desirable that a test identification parade should be conducted as soon as
possible after the arrest of the accused. This becomes necessary to eliminate the
possibility of the accused being shown to the witnesses prior to the test identification
parade. This is a very common plea of the accused and, therefore, the prosecution has to
be cautious to ensure that there is no scope for making such allegation. If, however,
circumstances are beyond control and there is some delay, it cannot be said to be fatal to
the prosecution. AIR 1971 SC 1050
AIR 1973 SC 2190
12. It is trite to say that the substantive evidence is the evidence of identification in Court.
Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is
well settled by a catena of decisions of this Court. The facts, which establish the identity
of the accused persons, are relevant under Section 9 of the Evidence Act. As a general
rule, the substantive evidence of a witness is the statement made in Court. The evidence
of mere identification of the accused person at the trial for the first time is from its very
nature inherently of a weak character. The purpose of prior test identification, therefore,
is to test and strengthen the trustworthiness of that evidence. It is accordingly considered
a safe rule of prudence to generally look for corroboration of the sworn testimony of
witnesses in Court as to the identity of the accused who are strangers to them, in the form
of earlier identification proceedings. This rule of prudence, however, is subject to
exceptions, when, for example, the Court is impressed by a particular witness on whose
testimony it can safely rely, without such or other corroboration. The identification
parades belong to the stage of investigation, and there is no provision in the Code which
obliges the investigating agency to hold or confers a right upon the accused to claim, a
test identification parade. They do not constitute substantive evidence and these parades
are essentially governed by Section 162 of the Code. Failure to hold a test identification
parade
@page-SC2347
would not make inadmissible the evidence of identification in Court. The weight to be
attached to such identification should be a matter for the Courts of fact. In appropriate
cases it may accept the evidence of identification even without insisting on corroboration.
(See Kanta Prashad v. Delhi Administration (AIR 1958 SC 350), Vaikuntam Chandrappa
and others v. State of Andhra Pradesh (AIR 1960 SC 1340), Budhsen and another V. State
of U.P. (AIR 1970 SC 1321) and Rameshwar Singh v. State of Jammu and Kashmir (AIR
1972 SC 102).
13
. In Jadunath Singh and another v. The State of Uttar Pradesh ((1970) 3 SCC 518), the
submission that absence of test identification parade in all cases is fatal, was repelled by
this Court after exhaustive considerations of the authorities on the subject. That was a
case where the witnesses had seen the accused over a period of time. The High Court had
found that the witnesses were independent witnesses having no affinity with deceased
and entertained no animosity towards the appellant. They had claimed to have known the
appellants for the last 6-7 years as they had been frequently visiting the town of Bewar.
This Court noticed the observations in an earlier unreported decision of this Court in
Parkash Chand Sogani v. The State of Rajasthan (Criminal Appeal No. 92 of 1956
decided on January 15, 1957), wherein it was observed :- AIR 1971 SC 363
"It is also the defence case that Shiv Lal did not know the appellant. But on a reading of
the evidence of P.W. 7 it seems to us clear that Shiv Lal knew the appellant by sight.
Though he made a mistake about his name by referring to him as Kailash Chandra, it was
within the knowledge of Shiv Lal that the appellant was a brother of Manak Chand and
he identified him as such. These circumstances are quite enough to show that the absence
of the identification parade would not vitiate the evidence. A person wh9 is well-known
by sight as the brother of Manak Chand, even before the commission of the occurrence,
need not be put before an identification parade in order to be marked out. We do not think
that there is any justification for the contention that the absence of the identification
parade or a mistake made as to his name, would be necessarily fatal to the prosecution
case in the circumstances."
The Court concluded:
"It seems to us that it has been clearly laid down by this Court, in Parkash Chand Sogani
v. The State of Rajasthan (supra), that the absence of test identification in all cases is not
fatal and if the accused person is well-known by sight it would be waste of time to put
him up for identification. Of course if the prosecution fails to hold identification on the
plea that the witnesses already knew the accused well and it transpires in the course of the
trial that the witnesses did not know the accused previously, the prosecution would run
the risk of losing its case."
14
. In Harbhajan Singh v. State of Jammu and Kashmir (1975) 4 SCC 480), though a test
identification parade was not held, this Court upheld the conviction on the basis of the
identification in Court corroborated by other circumstantial evidence. In that case it was
found that the appellant and one Gurmukh Singh were absent at the time of roll call and
when they were arrested on the night of 16th December, 1971 their rifles smelt of fresh
gunpowder and that the empty cartridge case which was found at the scene of offence
bore distinctive markings showing that the bullet which killed the deceased was fired
from the rifle of the appellant. Noticing these circumstances this Court held:- AIR
1975 SC 1814
"In view of this corroborative evidence we find no substance in the argument urged on
behalf of the appellant that the Investigating Officer ought to have held an identification
parade and that the failure of Munshi Ram to mention the names of the two accused to
the neighbours who came to the scene immediately after the occurrence shows that his
story cannot be true. As observed by this Court in Jadunath Singh v. State of U.P. (AIR
1971 SC 363) absence of test identification is not necessarily fatal. The fact that Munshi
Ram did not disclose the names of the two accused to the villagers only shows that the
accused were not previously known to him and the story that the accused referred to each
other by their respective names during the course of the incident contains an element of
exaggeration. The case does not rest on the evidence of Munshi Ram alone and the
corroborative circumstances to which we have referred to above lend enough assurance to
the implication of the appellant."
15. It is no doubt true that much evidentiary
@page-SC2348
value cannot be attached to the identification of the accused in Court where identifying
witness is a total stranger who had just a fleeting glimpse of the person identified or who
had no particular reason to remember the person concerned, if the identification is made
for the first time in Court.
16
. In Ram Nath Mahto v. State of Bihar (1996) 8 SCC 630) this Court upheld the
conviction of the appellant even when the witness while deposing in Court did not
identify the accused out of fear, though he had identified him in the test identification
parade. This Court noticed the observations of the trial Judge who had recorded his
remarks about the demeanour that the witness perhaps was afraid of the accused as he
was trembling at the stare of Ram Nath - accused. This Court also relied upon the
evidence of the Magistrate, PW-7 who had conducted the test identification parade in
which the witness had identified the appellant. This Court found, that in the
circumstances if the Courts below had convicted the appellant, there was no reason to
interfere. 1996 AIR SCW 3119
17
. In Suresh Chandra Bahri v. State of Bihar (1995 Supp (1) SCC 80), this Court held that
it is well settled that substantive evidence of the witness is his evidence in the Court but
when the accused person is not previously known to the witness concerned then
identification of the accused by the witness soon after his arrest is of great importance
because it furnishes an assurance that the investigation is proceeding on right lines in
addition to furnishing corroboration of the evidence to be given by the witness later in
Court at the trial. From this point of view it is a matter of great importance, both for the
investigating agency and for the accused and a fortiori for the proper administration of
justice that such identification is held without avoidable and unreasonable delay after the
arrest of the accused. It is in adopting this course alone that justice and fair play can be
assured both to the accused as well as to the prosecution. Thereafter this Court observed:-
1994 AIR SCW 3420
"But the position may be different when the accused or a culprit who stands trial had been
seen not once but for quite a number of times at different point of time and places which
fact may do away with the necessity of a TI parade."
18
. In State of Uttar Pradesh v. Boota Singh and others (1979 (1) SCC 31), this Court
observed that the evidence of identification becomes stronger if the witness has an
opportunity of seeing the accused not for a few minutes but for some length of time, in
broad daylight, when he would be able to note the features of the accused more carefully
than on seeing the accused in a dark night for a few minutes. AIR 1978 SC 1770
19
. In Ramanbhai Naranbhai Patel and. others v. State of Gujarat (2000 (1) SCC 358) after
considering the earlier decisions this Court observed :- 1999 AIR SCW 4770, Para
20
"It becomes at once clear that the aforesaid observations were made in the light of the
peculiar facts and circumstances wherein the police is said to have given the names of the
accused to the witnesses. Under these circumstances, identification of such a named
accused only in the Court when the accused was not known earlier to the witness had to
be treated as valueless. The said decision, in turn, relied upon an earlier decision of this
Court in the case of V.C. Shukla v. State (AIR 1980 SC 1382) wherein also Fazal Ali, J.
speaking for a three-Judge Bench made similar observations in this regard. In that case
the evidence of the witness in the Court and his identifying the accused only in the Court
without previous identification parade was found to be a valueless exercise. The
observations made therein were confined to the nature of the evidence deposed to by the
said eye-witnesses. It, therefore, cannot be held, as tried to be submitted by learned
Counsel for the appellants, that in the absence of a test identification parade, the evidence
of an eye-witness identifying the accused would become inadmissible or totally useless;
whether the evidence deserves any credence or not would always depend on the facts and
circumstances of each case. It is, of course, true as submitted by learned Counsel for the
appellants that the later decisions of this Court in the case of Rajesh Govind Jagesha v.
State of Maharashtra (AIR 2000 SC 160) and State of H.P. v. Lekh Raj (AIR 1999 SC
3916), had not considered the aforesaid three-Judge Bench decisions of this Court.
However, in our view, the ratio of the aforesaid later decisions of this Court cannot be
said to be running counter to what is decided by the earlier three-Judge Bench judgments
on the facts 1999 AIR SCW 4246
1999 AIR SCW 4008
@page-SC2349
and circumstances examined by the Court while rendering these decisions. But even
assuming as submitted by learned Counsel for the appellants that the evidence of, these
two injured witnesses i.e. Bhogilal Ranchhodbhai and Karsanbhai Vallabhbhai identifying
the accused in the Court may be treated to be of no assistance to the prosecution, the fact
remains that these eye-witnesses were seriously injured and they could have easily seen
the faces of the persons assaulting them and their appearance and identity would well
within imprinted in their minds especially when they were assaulted in broad daylight.
They could not be said to be interested in roping in innocent persons by shielding the real
accused who had assaulted them."
20
. These aspects were highlighted in Malkhansingh and Others v. State of M.P. (2003 (5)
SCC 746). 2003 AIR SCW 3336
21. In view of the accepted position that the accused persons were brought to the hospital
to be shown to PW4, grievance that the test identification parade was really of no
consequence because they had already been shown to the witnesses has substance. That
being only piece of material which was used for conviction of Mahabir, same cannot be
sustained. The same is set aside. He be released forthwith unless required in any case. So
far accused Jalvir is concerned, PW4 had categorically stated that she knew him six years
prior to the incident. He had come to their house many times. Therefore, there was no
difficulty in identifying accused Jalvir and naming him in the first information report. It
is of significance that in the first information report name of Jalvir was specifically noted.
The plea that Jalvir's name could not have been given at the first instance, because the
witness was unconscious is without any substance. As a matter of fact, the witness has
categorically stated that after the information was lodged, she became unconscious.
Above being the position, the conclusions of the Trial Court in holding accused Jalvir
guilty does not suffer from any infirmity.
22. The High Court was right in dismissing the appeal of accused-appellant Jalvir. We
find no infirmity in the conclusions of the High Court to warrant interference. Therefore,
Criminal Appeal No. 1475 of 2007 stands dismissed and as noted above, Criminal Appeal
No. 932 of 2007 is allowed.
Order accordingly.
AIR 2008 SUPREME COURT 2349 "Gowrishankara Swamigalu v. State of Karnataka"
(From : Karnataka)*
Criminal Appeal Nos. 568-569 of 2004, D/- 5 -3 -2008.
Gowrishankara Swamigalu v. State of Karnataka and Anr.
(A) Penal Code (45 of 1860), S.377 - Criminal P.C. (2 of 1974), S.154, S.386 -
UNNATURAL OFFENCE - FIR - APPELLATE COURT - APPEAL - Unnatural offence
- Allegation against Swamiji of Mutt - Offence alleged to be committed on resident boy
for 7 days in morning hours - FIR filed after a month and charge-sheet filed only after
dispute arose between accused and Senior Swamiji of Mutt - Evidence of mother of
victim that victim disclosed incident only when he came home for festival and was
questioned about sticky substance on clothes - She persuaded victim to go back and
complain only if incident is repeated - Unbelievable - Medical evidence not corroborating
prosecution case - Conviction of accused unsustainable - Moreso in appeal against
acquittal. Crl. A. No. 254 of 1999 and Crl. R. P.
No. 287 of 1999, D/-30-1-2004 and 3-2-2004 (Kant), Reversed. (Paras 10, 11, 12, 22,
25, 27)
(B) Criminal P.C. (2 of 1974), S.386 - APPELLATE COURT - APPEAL - Appeal against
acquittal - Interference - Two views possible - Court not to interfere. (Para 27)
2007 AIR SCW 1509 (Ref.) 25
2007 AIR SCW 1850 : 2007 Cri LJ 2136 (Ref.) 29
2007 AIR SCW 2635 29
2007 AIR SCW 3066 : 2007 Cri LJ 2955 (Ref.) 29
2007 AIR SCW 4857 : 2007 (5) AIR Kar R 449 (Disting.) 24
2007 AIR SCW 6322 : 2008 Cri LJ 350 (Ref.) 29
2007 AIR SCW 7652 : AIR 2008 SC 607 : 2008 Cri LJ 800 (Ref.) 292006 AIR SCW
177 : AIR 2006 SC 831 : 2006 Cri LJ 799 (Ref.) 29
@page-SC2350
(2005) 13 SCC 353 (Ref.) 29

1996 AIR SCW 998 : AIR 1996 SC 1393 : 1996 Cri LJ 1728 (Disting.) 26
1992 Cri LJ 488 (Orissa) 20
Sushil Kumar, Sr. Advocate, Rajesh Mahale, B.L. Chandrashekhar, H.S. Seshadri, H.S.
Raju, K. Lingaraju, for Appellant; M.N. Rao, P. Vishwanatha Shetty, Sr. Advocates, M.
Shivappa, Mahesh R. Uppin, G.N. Rajasekhar, Chandrasekharah, P.R. Ramasesh, Sanjay
R. Hegde, Amit Kumar Chawla, for Respondents.
* Cri. A. No. 254 of 1999, D/- 30-01-2004 and Cri. R. P. No. 287 of 1999, D/- 3-2-2004
(Kant).
Judgement
S. B. SINHA, J :- A Mutt known as Sri Siddaganga Mutt (for short "Mutt") is situated in
the State of Kerala. Appellant was a 'junior Swamiji' therein. He was declared as the
successor of the 'senior Swamiji' on or about 21.05.1975. Disputes and differences are
said to have arisen between the two Swamijis. Police protection was given to the
appellant. Both of them, however, purported to have signed an agreement on 13.05.1986.
It was, however, not implemented.
The 'Mutt' used to run a school. Respondent No. 2 herein was admitted in the VIIIth
standard in the said school of the Mutt. At the material time, he was reading in the IXth
standard therein.
On 18.07.1986 at about 8.30 a.m., the appellant allegedly through PW 2 Palaksha and
Gopinath called him to his office. The office was partitioned, one part of it was converted
into a bed room. After Respondent No. 2 entered in the office, he was asked to rub
lemons on his body. He allegedly had stripped prior thereto. Respondent No. 2 was also
asked to take his clothes off.
2. Respondent No. 2 alleged that he was subjected to unnatural offence by the appellant.
His clothes, anus and panche (lungi) got soiled. He was given a sum of Rs. 10/-and asked
not to tell the same to anybody else. The said activity of the appellant is said to have
continued upto 23.07.1986. He was every time offered some money. In total a sum of Rs.
75/- was paid to him.
He allegedly came back to his house with his brother on 28.07.1986. He gave the dirty
clothes for washing to his mother. His mother found sticky substances in the lungi. When
accosted, he allegedly told her about the indecent behaviour of the appellant. PW-8
Bhagawan Singh, the maternal uncle of Respondent No. 2 (brother of PW-4 mother
Dushyanthi) at that time was also present. The victim was allegedly persuaded to go back
to the school. He came back to the school on 3.08.1986. PW-9 Shivakumar and Natraj
were said to have been asked by the appellant to bring him again to his office. He
declined to come. He allegedly made a complaint to the Senior Swamiji as regards the
incident who assured him to look thereinto and asked him not to make any complaint, the
prestige of the Mutt being involved. However, no action was allegedly taken.
He thereafter lodged a First Information Report on or about 29.08.1986 at about 6.30
p.m. Investigation in the matter took a long time. A spot mahazar (Ex. P2) was drawn up
only on 30.08.1986. On 31.08.1986, the statement of PW-4 was recorded. The statement
of PW-2 Palaksha was recorded on 17.09.1986. The statement of Gopinath was taken on
23.11.1986. However, he was not examined in court. Statement of PW-9 Shivakumar,
another student was recorded on 2.12.1986. The statement of PW-8 Bhagawan Singh was
taken on 31.08.1987. Chargesheet in the case was filed only on 9.05.1988. Keeping in
view the aforementioned fact, the Trial Court initially discharged the appellant by an
order dated 19.02.1990 which, however, was set aside by the High Court by an order
dated 3.09.1992 with the direction to dispose of the matter on merits.
3. The trial started in March, 1996. In the mean time, the appellant was removed from the
Mutt. Immediately, thereafter, he filed a suit on 27.05.1988. The said suit is still pending.
Names of sixteen witnesses were cited in the chargesheet. However, only thirteen of them
were examined before the learned Trial Judge. PW-1 is the complainant. PW-2 Palaksha
was the student who along with Gopinath allegedly was asked by the appellant to bring
Respondent No. 2 to his office. Gopinath who was a material witness as also the Senior
Swamiji who could throw enough light in regard to the complaint made by Respondent
No. 2 to him, for reasons best known to the prosecution, were not examined. PW-2
although is not an eye-witness but when the offence was being committed, he allegedly
knew as to what was going on as both he and Gopinath were inside the room, although
doors were closed and the place where the bed was placed in the office
@page-SC2351
room was divided only by a plywood partition.
4. PW-3 Dr. V. Bangaraswami medically examined Respondent No. 2 on 29.08.1986.
PW-4 Dushyanthi is the mother of Respondent No. 2. Shivakumariah PW-5 and
Dharanesh PW-6 are witnesses to mahazar. PW-7 Dr. Parashuram is a surgeon. PW-8
Bhagawan Singh is the maternal uncle of Respondent No. 2. PW-9 Shivkumar and Natraj
are other students who were asked by the appellant to call Respondent No. 2. Natraj,
however, was not examined. PW 10 B. Raghavendra Rao proved the report of the
forensic laboratory. PWs. 11, 12 and 13 were the investigating officers.
5. The learned Trial Judge recorded a judgment of acquittal opining :
"32. Thus, in view of the abovesaid discussion, I am considering the evidence of the PWs
1, 4, 8 and 9 and also the medical evidence, namely, PWs 3, 7 and 10 and also the
evidence of the investigating agency, it is clear that, there is a long gap in recording the
statement of the witnesses by the Investigating Agency. As observed earlier, the evidence
of the PW1 is not supported by any medical evidence and the alleged version of PW1
regarding his visit to Bangalore is contradictory, when it is compared with the evidence
of the PWs 4 and 8 and there is a delay in filing the complaint, and the fact that, the
evidence of the PW1 he was called through the PW2 and CW3, becomes improbable,
looking to the facts of the case, and there are improbable circumstances in the case, and
as the evidence of the PW1 is not supported by the medical evidence, and as such, his
evidence is not reliable, and there is abnormal and extraordinary delay in filing the
complaint, and the accused is not examined by any doctor in this case and the
circumstantial evidence does not corroborate, the evidence of the PW1, and they
contradicted to him i.e. PW1's version and in view of the above said discussion, a doubt
arises about the prosecution case and as such, the accused is entitled for the benefit of
doubt."
6. The State preferred an appeal there-against. Respondent No. 2 also filed a revision
application, the maintainability whereof was in question. Both the criminal appeal and the
criminal revision application were taken up for hearing together.
7. A disturbing feature that occurred before the High Court may be noticed by us at this
stage. Although the allegation against the appellant was commission of a heinous offence,
an attempt was made by the court to get the civil disputes between the appellant and the
senior Swamiji settled.
The High Court in its judgment recorded that the appellant used to come in an
airconditioned car and would hold press meetings although the case was pending. He
attributed the said conduct on the appellant relying on or on the basis of a statement made
by the public prosecutor. The Public prosecutor, however, filed a memo before the court
denying and disputing the said statements attributed to him. Curiously enough, the High
Court directed the appellant to remain present on all the dates of hearing. Only because
on one of the dates of hearing, he was not present, serious note thereof was taken and his
purported conduct, as noticed hereinbefore, was commented upon.
Appellant was found guilty of commission of the said offence by the High Court. The
judgment of acquittal was reversed.
A long hearing was given for imposition of sentence. State and Respondent No. 2 prayed
for imposing of life sentence as also a fine of Rs.50 lakhs on him. Ten years' rigorous
imprisonment and a fine of Rs. 25 lakhs, however, was imposed stating that the revision
application has been allowed in part.
8. Mr. Sushil Kumar, learned senior counsel appearing on behalf of the appellant, would
submit:
(i) The delay in lodging of the First Information Report having not been explained
satisfactorily, no reliance can be placed thereupon. The First Information Report is in two
parts and the second part thereof would clearly show improvement made by PW-1 in his
statements made in the first part.
(ii) A bare perusal of the First Information Report would show that the same was drafted
by a person having good knowledge of law.
(iii) The medical evidence adduced by the prosecution clearly negates the charges.
(iv) The chance discovery of the offence by the mother and maternal uncle of Respondent
No.2 is wholly concocted, as it is wholly unnatural that the lungi would not be washed for
a period of about 10 days although
@page-SC2352
though he had only two pairs of lungi and two pairs of school uniforms.
(v) According to PW-4 and PW-8, Respondent No. 2 returned home only on 18.08.1986
and remained in the house for about 20 days which belies the story as narrated in the First
Information Report.
(vi) The High Court committed a serious error in reversing the judgment of acquittal
without considering the parameters therefor.
9. Mr. Sanjay R. Hegde, learned counsel appearing on behalf of the State and Mr. M.N.
Rao, learned counsel appearing on behalf of Respondent No. 2, on the other hand, would
submit:
(i) the offence alleged being a heinous one performed on a child of 13 years which has
ruined the life of a boy must be viewed with all seriousness by this court.
(ii) In a case of this nature, it is wholly unlikely that a young boy would lodge a false
First Information Report, particularly, when he was advised by his mother and maternal
uncle to inform the police only when an attempt was made to repeat the offence.
(iii) The statement of Respondent No. 2 having not only been corroborated by the other
students of the school, being PWs. 2 and 9, also stand corroborated by the evidence of his
mother and uncle, PWs 4 and 8, respectively.
(iv) Respondent No. 2 has admitted his handwriting in the sheet of the First Information
Report which was marked as Exhibit P1. The latter part of the First Information Report
which was marked as Exhibit P1B is really a statement under Section 161 of the Code of
Criminal Procedure and, thus, there is no reason why the same cannot be relied upon.
(v) Absence of medical evidence in regard to commission of offence is not conclusive as
evidence of injury cannot be found as the Respondent No.2 was examined after a period
of 40 days. Furthermore, injuries suffered by him which might have been minor in nature
might have been healed up in ordinary course.
(vi) Statement of PW-4 that Respondent No. 2 came back to his house immediately
before Rakshbandhan day need not be taken seriously by the court as she, having been
hailing from a lower strata of the society might not have been able to remember the exact
date after a period of 10 years.
10. Delay in lodging of a First Information Report although by itself may not be a ground
to disbelieve the entire prosecution case, but each case must be Judged on its own facts. If
the story of PW-1 is to be accepted at its face value, the court may not take serious notice
of delay in lodging the First Information Report. But, for the said purpose, the entire facts
and circumstances of this case must be taken note of. The offence was said to have been
repeated for seven days at about the same time. It is wholly unlikely that a student of a
school of the Mutt, where compulsorily prayer has to be offered on a clean cloth and as
apart from two pairs of lungi and two pairs of school uniforms he did not have anything
else, had been putting on the same lungi at least for about seven days while visiting the
appellant at his call.
11. From the statements of PW-4, it appears that according to Respondent No. 2, his
mother used to come to the school for washing the clothes once in a week or so. At the
same time, soap had been provided to Respondent No. 2 for washing his clothes. This
conduct on the part of Respondent No. 2 throws serious doubts to the whole story. If
Respondent No. 2 had returned to school on 3.08.1986 and attempts were made by the
appellant immediately thereafter to send for him for repeating the commission of the
same offence, there was no reason why the First Information Report was not lodged
immediately.
Even PW-4 has categorically denied and disputed that she had made any statement before
the investigating officer after the First Information Report was lodged on 31.08.1986.
According to her, as also PW-8, Respondent No. 2 came back to the house only on the
Rakshbandhan day and stayed there for 20 days. He had to be persuaded to return to
school. PW-8 came with them. It was he who used to run the house; the husband of PW-4
for all practical purposes having nothing to do with the affairs of the house. The husband
of PW-4 has also not been examined.
PW-8 was attached to the Mutt. It was he, who was instrumental for admission of the boy
in the Mutt. He knew the Administrator. He did not meet the appellant to make enquiries.
He did not meet the Senior to lodge a complaint. He did not even meet the Administrator.
@page-SC2353
PW-4 was not an illiterate lady. She had studied upto IXth standard. She had been
working in a school as an Aaya. Her sister is a teacher in a school. It is, therefore,
unlikely that no step would be taken by the guardians when they came to know about the
incident.
12. It is against natural human conduct that such an act would be committed at 8 O'clock
in the morning and that too continuously for seven days.
The site plan shows that the office of the Senior Swamiji is only 5 feet away from the
office of the appellant. There was a store room and also a room for sitting of the other
staff members attached to the room. Even if PW-2 and Gopinath had been asked to bring
Respondent No. 2 with them, it is against all human conduct that after closing the door
they would be asked to be in the room and except seeing the act with their own eyes, for
all intent and purport they would know what had been happening in the room. Despite the
same, according to PW-2, when they came out of the room, Respondent No. 2 was asked
about what had happened. He allegedly stated thereabout.
13. According to the complainant, PW-2 and Gopinath called him only for the first day
and not thereafter. How, then on all the other days, he went to the office room of the
appellant in the same way is not explained. PW-2, Gopinath as also PW-9 were not
studying with him in the same class. They used to stay in the third floor of the hostel;
whereas Respondent No. 2 used to stay in the ground floor thereof.
14. A bare perusal of the First Information Report itself shows that it cannot be in the
handwriting of a student studying in Class IX. It was in very good handwriting. It was
written systematically. There was no mistake. There was no hesitation in writing. It was
absolutely neat and clean. The contents of the First Information Report clearly
demonstrate that the same has been drafted by a person who is well versed in legal
language. Immediately, a purported statement was taken after the First Information report
was lodged that there exists some improvement therein is not in dispute. A further
statement was recorded that he had himself written the First Information Report. The
subsequent statement may not be a part of the First Information Report being a statement
under Section 161 of the Code; but the defence is entitled to show that improvements
have been made therein vis-a-vis the allegations made in the First Information Report.
15. PW-1 made the following statement in his deposition before the Investigating
Officer :
"I have myself written this application in my own handwriting. As stated in my
application, the boys who took me to Gowrishankar Swamiji closed the door and stood
inside only. After this incident I did not inform it to anybody. The senior Swamiji
expelled Palaksha and Gopinath who used to live with me in the Mutt. When
Gowrishankar Swamiji asked me to remove my clothes, I was wearing one Green colour
stripped underwear, one white panche, one baniyan and turmeric colour checked towel.
My mother has washed the said clothes. From my home town, when I returned to the
Mutt on 3-8-86, Shivakumar and Natraj, boys of middle school came to me and told me
that Gowrishankar Swamiji called me. I was scared and I did not go. I informed that the
junior Swamiji had done such a thing to the senior Swamiji in the evening at about 8-30
p.m. I was afraid that some one will beat me therefore, I did not give any report about it.
Today, I came to know that Siddalingappa and Hebbak Mahadev are searching for me and
realizing that I cannot allow it to continue like this, I have given my written application."
16. We have noticed hereinbefore that despite the fact that commission of such a heinous
crime was reported to the police authorities, how tardy the investigation was.
PW-4 in her deposition completely denied to have made any statement before the police
officer on 31-08-1986. The reason is not very far to seek. Her attention was drawn to her
previous statements where she had alleged that her son had mentioned about the incidents
on 18-08-1986 and left the house on 28-08-1986. When her attention was drawn to the
other statements made by her before the Investigating Officer, she stated :
"..........I do not know if I have stated before the police in terms of Dl and D2. Before the
police I have not mentioned that I informed my brother Bhagvan Singh that the children
have dirtied the clothes. Before the police I have not mentioned that Bhagvan Singh
enquired my son Deepak Singh after
@page-SC2354
coming back from playing as to why he had dirtied his clothes. Further, I have not
mentioned to the police that when my son Deepak Singh told to Bhagvan Singh, I was
present there. My son went back five days after coming.........."
17. PW-8 who, as noticed hereinbefore, was examined by the police more than one year
after the occurrence, viz., 31-08-1987, in his cross-examination, stated :
"..........After about 2 months after they came for Rakhi festival, my statement was
recorded by police. I might have informed the police that we celebrate Rakshabandhan
festival on 19-8-86. I have stated that on 18-8-86 the children came to my sister's house
from the Mutt for celebrating the festival. Two days thereafter, my sister had washed the
clothes of the children. It is not correct to say that I have not mentioned in the police
statement that my sister asked Deepak Singh why his clothes were so dirty. My sister
asked both the children why they had dirtied the clothes so much. At that time both the
children were in the house. From 18-8-86 both the children stayed for about 20 days in
my sister's house in Bangalore. After 20 days, I encouraged the children and left them in
the Mutt. I have not seen Palaksha and Gopinath. Even when I went to leave the children
at the Mutt, I did not meet the accused and ask him why he was having such immoral
intercourse with children and how can he do such a thing. I did not go and meet the
Senior Swamiji and inform him that your junior Swamiji is doing such a thing.........."
18. Whereas according to PWs 4 and 8, they came to know about the incident on or about
18-08-1986 and Respondent No. 2 and his brother having stayed in the house for 20 days,
it remains a mystery how First Information Report could be lodged on 29-08-1986.
19. PW-3 Dr. V. Bangaraswami in his evidence stated :

"All the tissues around the anus are hard and rough. At the time of answering the calls of
nature, the extra skin will be expanded. Immediately after it will come to original status.
By examination I found that boy was not habitually used for anal intercourse. If there is
continuous act of intercourse for about a week or even 2,3 days we can find out as
whether he had any intercourse or not."
20. Mr. Hegde relied on a decision of the Orissa High Court in Mihir alias Bhikari Charan
Sahu v. State, Opp. Party [1992 Cr.LJ 488], wherein Ejaj Ahmad's Sexual Offences and
Modi's Medical Jurisprudence and Toxicology have been extensively quoted, to contend
that lacerations are likely to disappear if the examination is made after two to three days
and nature of injuries would also depend upon several factors.
21. When an expert categorically ruled out the commission of the unnatural offence
having regard to his expertise, it was obligatory on the part of the prosecution to draw his
attention to the said authorities so as to enable him to furnish an explanation. It may be
true that absence of medical offence by itself may not be a crucial factor in all cases, but,
the same has to be taken into consideration as a relevant factor when other evidences
point towards the innocence of the appellant.
22. Why in a case of this nature, filing of chargesheet was unduly delayed and could be
filed only in May, 1988, i.e., only after the dispute between Senior Swamiji and the
appellant crystallised, is beyond anybody's comprehension. The High Court merely relied
upon the evidence of PW-1. His statements were taken as gospel truth. Only on the basis
thereof, all other factors pointing out the discrepancies in the prosecution case were lost
sight of.
23. A large number of irrelevant factors including the rate of conviction, legalisation of
sodomy in other countries had been taken into consideration by the High Court. Appellant
for no reason was condemned in the clearest possible terms. He was accused to be
coming to the High Court in an air-conditioned car and holding press conferences which
was denied and disputed by the public prosecutor. He was also branded as a habitual
offender. Taking of such irrelevant factors clearly demonstrates how the mind of the
learned Judges of the High Court stood influenced not only for the purpose of reversing a
judgment of acquittal but also for imposition of sentence. If the High Court was clear in
its mind that it was dealing with a criminal case and that too the offence is a serious one,
we fail to understand why it had made endeavours to mediate in the internal disputes of
the Mutt and for that purpose held sittings in chamber. We also fail to understand as to
why the presence of the appellant on each day of hearing was
@page-SC2355
insisted upon and his absence had been adversely commented upon.
24
. Mr. Hegde relied upon a recent decision of this Court in B.C. Deva @ Dyava v. State of
Karantaka [2007 (9) SCALE 338] to contend that in a case involving sexual abuse the
testimony of the victim should ordinarily be believed. The factual matrix involved therein
was absolutely different as not only the prosecutrix was found to be a consenting party,
but immediately after the incident she rang to her mother for the purpose of disclosing the
incident and she felt so depressed and humiliated as to lead her to the extreme step of
ending her life by jumping in a water tank. It was in the aforementioned situation opined :
2007 AIR SCW 4857
"12. Having carefully gone through the evidence of the prosecutrix, we find no plausible
and justifiable reasons whatsoever to disbelieve and discard her testimony. The
prosecutrix is a trust-worthy witness and her evidence cannot be brushed aside on the
above-noted flimsy plea raised by the accused."
The question as to whether the witnesses in criminal cases irrespective of the nature of
offence should be fully relied upon or not would depend upon the fact of each case. There
cannot be any precedent on fact.
25
. Reliance has been placed on State of Kerala v. Kurissum Moottil Antony [(2007) 1 SCC
627] wherein it was held that in a case of sexual assault whether corroboration is
necessary or not is again a question in regard whereto no hard and fast rule can be laid
down. In the aforementioned case, the victim was a girl of 10 years. The accused
trespassed into her house when she was alone and committed an unnatural offence. The
testimony of the girl found corroboration from the medical evidence. It was observed :
2007 AIR SCW 1509
"7. An accused cannot cling to a fossil formula and insist on corroborative evidence, even
if taken as a whole, the case spoken to by the victim strikes a judicial mind as probable.
Judicial response to human rights cannot be blunted by legal jugglery"
In any event, keeping in view the peculiar fact situation obtaining herein, we are of the
opinion that this is one of the rarest of rare cases where a deeper scrutiny was necessary
particularly when the Trial Court had recorded a judgment of acquittal upon assigning
sufficient and cogent reasons and wherewith we agree.
26
. Reference to State of Punjab v. Gurmit Singh and others [(1996) 2 SCC 384] does not
take us any further. Therein it was observed : 1996 AIR SCW 998, Para 20
"The courts, therefore, shoulder a great responsibility while trying an accused on charges
of rape. They must deal with such cases with utmost sensitivity. The courts should
examine the broader probabilities of a case and not get swayed by minor contradictions or
insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal
nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix
inspires confidence, it must be relied upon without seeking corroboration of her statement
in material particulars. If for some reason the court finds it difficult to place implicit
reliance on her testimony, it may look for evidence which may lend assurance to her
testimony, short of corroboration required in the case of an accomplice. The testimony of
the prosecutrix must be appreciated in the background of the entire case and the trial
court must be alive to its responsibility and be sensitive while dealing with cases
involving sexual molestations."
27. The High Court also completely lost sight of the parameters of its jurisdiction to
reverse a judgment of acquittal. It is not a case where only one view was possible. We are
not unmindful that some mistakes had also been committed by the learned Sessions Judge
which had been pointed out by Mr. M.N. Rao in the following terms :
(i) The PW7 has also stated in his evidence that "no abnormality is detected as per Ex.
P3". This goes to show that the evidence of the PW1 and the evidence of PWs 3, 7 and 10
are taken together, it is clear that the evidence of the PW1 is not corroborated by the
medical evidence.
(ii) It is the defence of the accused that the PWs 1 and 2 and CW3 and PW9 are not at all
residing in the Mutt and they are created against the accused.
(iii) The PW1 in the cross has admitted at page No. 19 that against him the J.C. cases in
J.C. No. 86/86, 59/87, 60/87, 61/87, 89/87 and CC 4350/90 were filed by the
Kyathasandra P.S.
@page-SC2356
but, then the High Court could have made an endeavour to arrive at its independent
findings. Our approach to the case is not different as we have made all endeavours to
appreciate the testimony of the victim in the background of the entire case.
28. We have ourselves gone through the materials on records very carefully and are
clearly of the opinion that the learned Trial Judge was correct in its view.
29. We may at this juncture notice a few precedents operating in the field.
In Jagdish and Anr. v. State of Madhya Pradesh [2007 (11) SCALE 213], this Court
"12. The High Court while dealing with an appeal from a judgment of acquittal was,
thus, required to meet the aforementioned reasonings of the learned Trial Judge. There
cannot be any doubt whatsoever that irrespective of the fact that the High Court was
dealing with a judgment of acquittal, it was open to it to re-appreciate the materials
brought on records by the parties, but it is a well-settled principle of law that where two
views are possible, the High Court would not ordinarily interfere with the judgment of
acquittal. [See Rattan Lal v. State of Jammu and Kashmir 2007 (5) SCALE 472]. 2007
AIR SCW 3066
14. It is unfortunate that the High Court while arriving at the aforementioned conclusion
did not pose unto itself the right question. In the event, it intended to arrive at a finding
different from the one arrived at by the Trial Court, it was obligatory on its part to
analyze the materials on record independently. The High Court was also required to meet
the reasoning of the learned Trial Judge. If the learned Trial Judge upon appreciation of
the evidence arrived at a conclusion that the time of occurrence disclosed in the First
Information Report was not correct inasmuch whereas the occurrence is said to have
taken place at 08.00 a.m. but in fact it took place much prior thereto, it could not be
opined that the First Information Report was lodged within an hour of the incident"
It was noticed :
"17. Yet again in Kallu alias Masih and others v. State of M.P. [(2006) 10 SCC 313], this
Court opined : 2006 AIR SCW 177
"8. While deciding an appeal against acquittal, the power of the Appellate Court is no less
than the power exercised while hearing appeals against conviction. In both types of
appeals, the power exists to review the entire evidence. However, one significant
difference is that an order of acquittal will not be interfered with, by an appellate court,
where the judgment of the trial court is based on evidence and the view taken is
reasonable and plausible. It will not reverse the decision of the trial court merely because
a different view is possible. The appellate court will also bear in mind that there is a
presumption of innocence in favour of the accused and the accused is entitled to get the
benefit of any doubt. Further if it decides to interfere, it should assign reasons for
differing with the decision of the trial court."
[See also Rattanlal (supra) and Ramappa Halappa Pujar and others v. State of Karnataka
2007 (6) SCALE 206]." 2007 AIR SCW 3066
2007 AIR SCW 2635
[See also Chandrappa and Ors. v. State of Karnataka 2007 (3) SCALE 90 and Haji Khan
v. State of U.P. [(2005) 13 SCC 353] 2007 AIR SCW 1850
()
Recently in Abdul Gafur and Ors. v. The State of Assam [2007 (13) SCALE 801], a
Bench of this Court held : 2007 AIR SCW 7652
"10. The accused persons are not strangers and were practically neighbours of the
informant and his family. The High Court noted that there was no intention to falsely
implicate accused persons because of enmity and there was no reason as to why dignity
of two young girls would be put at stake by alleging rape. It is to be noted that in fact
rape was alleged but the Trial Court found that there was no material to substantiate the
plea of rape. The evidence is totally inconsistent and lacks credence. The High Court's
observations were clearly based on surmises and contrary to the factual scenario. The
High Court has noted that the evidence of PWs. 1, 2, 3, 5 and 8 stand fully corroborated
by the medical evidence. Significantly, on consideration of the evidence of PW 4, it is
clear that the evidence of this witness is clearly contrary to the medical evidence. To add
to the confusion, it is noted that the High Court recorded as finding that appellant Abdul
Gafur was absconding. As a matter of fact the evidence of Investigating Officer (in short
the 'I.O') shows that he had arrested Abdul Gafur on the date the First Information Report
(in short the 'FIR') was lodged. Unfortunately the High Court
@page-SC2357
has merely referred to certain conclusions of the Trial court without analyzing the
evidence and various submissions made by the appellants. To add to the vulnerability of
the prosecution version, the FIR was lodged long after the incident and in fact law was
already set on motion after the telephonic message had been received.
11. The aforesaid infirmities in the background of admitted animosity between the parties
renders the prosecution version unacceptable. The Trial Court and the High Court did not
analyse the evidence correctly and acted on mere surmises and conjectures. That being
so, the appellants deserve to be acquitted, which we direct."
The High Court unfortunately failed to bear in mind the aforementioned legal principles.
The High Court misdirected itself at various stages. It was wholly unfair to the appellant.
30. For the reasons aforementioned, the appeal is allowed. The judgment of conviction
and sentence passed by the High Court is set aside and the judgment of acquittal passed
by the Trial Court is restored. Appellant is set at liberty forthwith if not required in
connection with any other case.
Appeal allowed.
AIR 2008 SUPREME COURT 2357 "Paresh P. Rajda v. State of Maharashtra"
(From : Bombay)*
Criminal Appeal No. 921 with 922 of 2008 (arising out of SLP (Cri.) No. 3074 with 3075
of 2006), D/- 16 -5 -2008.
Paresh P. Rajda v. State of Maharashtra and Anr.
Negotiable Instruments Act (26 of 1881), S.138, S.141 - DISHONOUR OF CHEQUE -
COMPLAINT - COMPANY - APPEAL - Complaint u/S.138 - Filed against Company -
Order summoning Chairman and Director of Company - Averments in complaint
showing that accused was Chairman of Company - Question of his responsibility for
business of Company not seriously challenged - Clear allegations against accused to
effect that they were officers and responsible for affairs of company - Trial yet to be
started - Held that it would be inappropriate to quash proceedings against accused.
2007 AIR SCW 1880 : AIR 2007 SC 1454 : 2007 CLC 682 4, 7
2007 AIR SCW 2510 : AIR 2007 SC 1650 : 2007 Cri LJ 2442 : 2007 CLC 852 4
2007 AIR SCW 2591 : AIR 2007 SC 1682 : 2007 Cri LJ 2448 : 2007 CLC 860 (Disting.)
4, 6, 8
(2007) 4 SCC 70 (Ref.) 4, 6, 7
4, 5, 7
Bhaskar P. Gupta, Pradip Ghosh, Sr. Advocates, G.S. Chatterjee, Raja Chatterjee, Sachin
Das for Appellant; Amar Dave, Mrs. Nandini Gore, Ravindra Keshavrao Adsure, for
Respondents.
* Cri. Appln. No. 5311 of 2004, D/- 20-12-2005 (Bom).
Judgement
2. This judgment will dispose of Criminal Appeals arising out of SLP (Cri.) Nos.3074 and
3075 of 2006. The facts have been taken from the record of SLP (Crl.) No. 3074 of 2006.
They are as under :
3. Tata Finance Limited, which had commercial dealings with the accused, filed a
complaint under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter called
the "Act") alleging that the accused had issued two cheques dated 25th November 2001
and 18th December 2001, each for Rupees one lakh, which had been dishonoured on 20th
December 2001 with the remarks "Exceeds Arrangements". Notice was issued to accused
No. 1 i.e. the Company, including accused No.2 Paresh P. Rajda, the Chairman and
accused No.4 Vijay Shroff, a director of the Company and they appeared reluctantly
before the court after bailable warrants had been issued. Accused Paresh Rajda thereupon
moved an application that as per the averments made in the complaint itself, no case for
summoning him had been made out as no overt act with regard to the issuance of the
dishonoured cheques had been attributed to him. The High Court, however, vide its order
dated 9th June 2004 directed that the application under Section 395 of the Code of
Criminal Procedure, 1974 which had already been made before the Metropolitan
Magistrate be decided at the first instance. The Magistrate, however, rejected the
application
@page-SC2358
on 18th October 2004 holding that he had no jurisdiction in the matter, as process under
Section 395 of the Code had already been issued. It is in this circumstance that the
accused once again moved the High Court. The High Court in its order dated 20th
December 2005 held that the argument that the accused had been arrayed as such merely
because he was a Director of the Company was wrong inasmuch as an overall reading of
the complaint showed that specific allegations had been levelled against him as being a
responsible officer of the accused Company and therefore equally liable, and that if it was
ultimately found that the accused had, in fact, no role to play, he would be entitled to an
acquittal. The petition was accordingly dismissed. It is in this background that the present
appeal is before us.
4
. The learned counsel for the appellant has argued that a perusal of the complaint would
show that no allegation whatsoever had been made against the accused and he had been
arrayed in a mechanical manner, merely because he happened to be a Director of the
company. He has, in particular, referred us to the provisions of Section 141 of the Act that
if an offence was committed by a company, every person, 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, would be deemed to be guilty of the offence and would be
liable to be proceeded against and as no such allegations had been made in the complaint,
the issuance of process against the accused was not justified. In support of this argument,
he has placed reliance on S.M.S. Pharmaceuticals Ltd. vs. Neeta Bhalla and Anr. (2005) 8
SCC 89 and N.K.Wahi vs. Shekhar Singh and Ors. (2007) 9 SCC 481. The learned
counsel for the respondents has, however, submitted that it was not possible at this stage
and without evidence to reach a conclusion as to the liability of the appellant and it was,
therefore, appropriate that the matter be left to trial, as had been observed by the High
Court. The learned counsel has also drawn our attention to paragraphs 2 and 8 of the
complaint to contend that the allegations that the accused were, in fact, responsible
officers of the Company and were also conducting its day-to-day activities, had been
specifically made. It has also been pointed out that a great deal of material had been put
on record to show that the accused company and its officers had issued several cheques to
other organizations as well, which too had bounced, and that huge sums were due from
the Company on that account and, they being habitual offenders, were not entitled to any
relief. The learned counsel has relied upon S.M.S. Pharmaceuticals Ltd. vs. Neeta Bhalla
and Anr. (2007) 4 SCC 70, Everest Advertising (P) Ltd. vs. State, Govt of NCT of Delhi
and Ors. (2007) 5 SCC 54 and N. Rangachar vs. Bharat Sanchar Nigam Ltd. (2007) 5
SCC 108 in support of his submissions. 2005 AIR SCW 4740
2007 AIR SCW 1880
2007 AIR SCW 2510
2007 AIR SCW 2591
. We have gone through the judgments cited by the learned counsel. In S.M.S
Pharmaceuticals [(2005)8 SCC 89], a three Judge Bench of this Court examined the
scope and ambit of Section 141 of the Act and the liability created with respect to the
Directors and other persons responsible for the affairs of the company. Three questions
were posed : 2005 AIR SCW 4740
"(a) Whether for purposes of Section 141 of the Negotiable Instruments Act, 1881, it is
sufficient if the substance of the allegation read as a whole fulfil the requirements of the
said section and it is not necessary to specifically state in the complaint that the person
accused was in charge of, or responsible for, the conduct of the business of the company.
(b) Whether a director of a company would be deemed to be in charge of, and responsible
to, the company for conduct of the business of the company and, therefore, deemed to be
guilty of the offence unless he proves to the contrary.
(c) Even if it is held that specific averments are necessary, whether in the absence of such
averments the signatory of the cheque and or the managing directors or joint managing
director who admittedly would be in charge of the company and responsible to the
company for conduct of its business could be proceeded against."
The above questions were answered in the following terms :
(a) It is necessary to specifically aver in a complaint under Section 141 that at the time
offence was committed, the person accused was in charge of, and responsible for the
conduct of business of the company. This averments is an essential requirement of
@page-SC2359
Section 141 and has to be made in a complaint. Without this averment being made in a
complaint, the requirements of Section 141 cannot be said to be satisfied.
(b) The answer to the question posed in sub-para (b) has to be in the negative. Merely
being a director of a company is not sufficient to make the person liable under Section
141 of the Act. A director in a company cannot be deemed to be in charge of and
responsible to the company for the conduct of its business. The requirement of Section
141 is that the person sought to be made liable should be in charge of and responsible for
the conduct of the business of the company at the relevant time. This has to be averred as
a fact as there is no deemed liability of a director in such cases.
(c) The answer to question ( C ) has to be in the affirmative. The question notes that the
managing director or joint managing director would be admittedly in charge of the
company and responsible to the company for the conduct of its business. When that is so,
holders of such positions in a company become liable under Section 141 of the Act. By
virtue of the office they hold as managing director or joint managing director, these
persons are in charge of and responsible for the conduct of business of the company.
Therefore, they get covered under Section 141. So far as the signatory of a cheque which
is dishonoured is concerned, he is clearly responsible for the incriminating act and will be
covered under sub-section (2) of Section 141."
6
. As this matter had come before the three-Judge Bench on a reference, the Bench
reverted the matter for a discussion on facts to a Bench of two-Judges. It was this matter
which was again examined by the Bench and reported as S.M.S. Pharmaceuticals Ltd.,
(2007) 4 SCC 70 and it was found that the necessary averments had been made in the
complaint so as to attract the provisions of Section 141 of the Act. The appeal filed by the
company was accordingly dismissed. This matter once again came up for consideration in
Rangachari's case (supra) and in paragraph 21 it was observed : 2007 AIR SCW 2591
"A person normally having business or commercial dealings with a company, would
satisfy himself about its creditworthiness and reliability by looking at its promoters and
Board of Directors and the nature and extent of its business and its memorandum or
articles of association. Other than that, he may not be aware of the arrangements within
the company in regard to its management, daily routine, etc. Therefore, when a cheque
issued to him by the company is dishonoured, he is expected only to be aware generally
of who are in charge of the affairs of the company. It is not reasonable to expect him to
know whether the person who signed the cheque was instructed to do so or whether he
has been deprived of his authority to do so when he actually signed the cheque. Those are
matters peculiarly within the knowledge of the company and those in charge of it. So, all
that a payee of a cheque that is dishonoured can be expected to allege is that the persons
named in the complaint are in charge of its affairs. The Directors are prima facie in that
position."
7
. A reading of this passage would reveal a slight departure vis-a-vis the other judgments
in favour of the complainant. It will be noticed that this decision too was rendered on a
consideration of both the judgments in S.M.S. Pharmaceuticals. The matter came up yet
again for consideration in N. K. Wahi case (supra) which reiterated the earlier view and
held that where there were no clear averment in the complaint or the evidence with regard
to the role played by the Directors and as to whether and they were in charge and
responsible for the conduct of the affairs of the company, it would not be possible to
maintain the prosecution against them and they were entitled to acquittal. It may however
be noticed that this was a case where an acquittal was recorded after trial. 2007 AIR
SCW 1880
. It will be clear from the aforequoted judgments that the entire matter would boil down
to an examination of the nature of averments made in the complaint though we observe a
slight digression in the judgment in N. Rangachari case (supra). It is in this background,
that the complaint needs to be examined. Paragraphs 2 and 8 are reproduced below :
2007 AIR SCW 2591
"(2) I know all the accused. The accused No. 1 is company registered under the
Companies Act, 1956. Accused No.2 is the Chairman of the accused No.l. Accused No.3
is the Joint Managing Director of the Accused No.l and accused Nos. 4, 5 and 6 are the
Directors of the accused No. 1.
(8) The accused No.2 is the Chairman of
@page-SC2360
accused No. 1 and is responsible for the day to day affairs of accused No. 1 and therefore
he is liable to repay amount of dishonoured cheques. Accused No.3 being Joint Managing
Director and accused Nos. 4, 5 and 6 being the Directors of the accused No. 1 are
responsible officers of accused No. 1 and therefore they are liable to repay the amounts of
the dishonoured cheques. As the accused have failed to make the payment within the
stipulated period of 15 days after receipt of statutory notice they have committed an
offence punishable under Section 138 r/w 141 of the Negotiable Instruments Act 1881
(As amended). Hence this complaint is filed before this Hon'ble Court."
9. A perusal of the aforesaid paragraphs would show that accused No.2 is Paresh Rajda,
the Chairman of the Company, and as per the impugned judgment of the High Court, the
question of his responsibility for the business of the Company has not been seriously
challenged. We, nonetheless, find clear allegations against both the accused/ appellants to
the effect that they were officers and responsible for the affairs of the company. We are of
the opinion that at a stage where the trial has not yet started, it would be inappropriate to
quash the proceedings against them in the light of the observations of this Court quoted
above. We, accordingly, find no merit in the appeals. They are dismissed.
Appeals dismissed.
AIR 2008 SUPREME COURT 2360 "Eastern Equipment and Sales Ltd., M/s. v. ING.
Yash Kumar Khanna"
(From : Delhi)?
Civil Appeal No. 3178 of 2008 (arising out of SLP(C) No. 8565 of 2007), D/- 30 -4
-2008.
M/s. Eastern Equipment and Sales Ltd. v. ING. Yash Kumar Khanna.
Civil P.C. (5 of 1908), O.41, R.27 - EVIDENCE - APPEAL - APPELLATE COURT -
Additional evidence - Adduction of - Application under O.41, R.27 filed in appeal -
Appellate Court ought to have taken appeal along with application for acceptance of
additional evidence - Rejection of application under O.41, R.27 - Not proper - Appellate
Court directed to decide pending appeal along with application under O.41, R.27 on
merits.
C. M. P. No. 41 of 2007, D/-10-01-2007 (Delhi), Reversed. (Para 5)
1997 AIR SCW 3301 : AIR 1997 SC 3243 (Ref.) 6
Jagjit Singh Chhabra, for Appellant; Ms. Ranjita, B.N. Agrawalla and Rajiv Mehta for
Respondent.
* C. Misc. Petn. No. 41 of 2007, D/- 10-1-2007 (Delhi).
Judgement
JUDGMENT :- Delay condoned.
2. Leave granted.
3. Rejoinder Affidavit filed by the appellant be taken on record.
4. This appeal is directed against an order passed by a learned Single Judge of the High
Court of Delhi at New Delhi in CM(M) No. 41 of 2007 by which an order dated 05-10-
2006 passed by the Appellate Court rejecting the petition filed by the appellant in the
pending appeal for acceptance of additional evidence under Order 41 Rule 27 of the Code
of Civil Procedure was affirmed.
5. We have heard learned counsel for the parties and after considering the facts and
circumstances of the present case, we are of the view that in order to decide the pending
appeal in which the application under Order 41 Rule 27 of the Code of Civil Procedure
was filed ought to have been taken by the appellate Court along with the application for
acceptance of additional evidence under Order 41 Rule 27 of the Code of Civil
Procedure. In that view of the matter and without going into the merits as to whether the
application under Order 41 Rule 27 of the Code of Civil Procedure was rightly rejected
by the Appellate Court as well as by the High Court, we set aside the order of the High
Court as well as of the appellate Court rejecting the application under Order 41 Rule 27
of the Code of Civil Procedure and we direct that the appellate Court shall decide the
pending appeal along with the application under Order 41 Rule 27 of the Code of Civil
Procedure on merits within a period of three months from the date of supply of a copy of
this order to the appellate court. The appeal is allowed to the extent indicated above.
There will be no order as to costs.
6
. The view that we have expressed can be supported by a decision of this Court in the
case of Jaipur Development Authority v. Kailashwati Devi 1997 (7) SCC 297. 1997
AIR SCW 3301
@page-SC2361
7. We make it clear that we have not gone into the merits of the application under Order
41 Rule 27 of the Code of Civil Procedure which is kept open to be decided by the
appellate court while deciding the appeal.
Appeal allowed.
AIR 2008 SUPREME COURT 2361 "Bank of India v. Ketan Parekh"
(From : 2006 (2) AIR Bom R 121)
Coram : 2 A. K. MATHUR AND ALTAMAS KABIR. JJ.
Civil Appeal No. 3652 of 2008, (arising out of SLP (C) No. 7744 of 2006), D/- 16 -5
-2008.
Bank of India v. Ketan Parekh and Ors.
Special Court (Trial of Offences Relating to Transactions in Securities) Act (41 of 1992),
S.9A (as introduced by Amending Act 24 of 1994) - Recovery of Debts Due to Banks and
Financial Institutions Act (51 of 1993), S.34 - SPECIAL COURT - SECURITY
TRANSACTION - RECOVERY OF DEBT - DEBT RECOVERY TRIBUNAL -
Securities Act of 1992 - Has overriding effect over Act of 1993 - Respondent becoming
notified person under 1992 Act - His property will stand attached and Special Court will
have jurisdiction in regard to such property - Debts Recovery Tribunal before whom
application for recovery of debts was filed by Bank also against respondent would have
no jurisdiction.
The Act of 1992 as amended to include Section 9-A in 1994 being subsequent legislation
will prevail and not the provisions of the Act of 1993. Moreover, it is provided in sub-
section (3) of Section 3 of 1992 Act that the transactions in securities entered into after
1st day of April, 1991 and on or before 6th June, 1992, the properties pertaining to these
securities shall vest with the Custodian to be dealt with as directed by the Special Court.
Therefore, the properties pertaining to these transactions during the aforesaid period, will
be subject to the jurisdiction of the Special Court only. There is another reason to come to
this conclusion that in fact Act of 1992 was specially meant to deal with the fraudulent
transactions which has taken place from 1st of April, 1991 to 6th of June, 1992.
Therefore, this Act has special purpose to deal with the scam which has taken place in
securities transactions during this period. The Act of 1993 was of comparatively general
in nature pertaining to recovery of debts due to the Banks and Financial Institutions. The
idea was that all the suits pertaining to recoveries of Banks and Financial Institutions
spreading over the Civil Courts and this has resulted into great strain on the Banks and
Financial Institutions. Therefore, in order to meet that contingency this Act was
promulgated. (Paras 8, 5, 6)
Moreover, both the two Acts i.e., the Act of 1992 and the Act of 1993 start with the non
obstante clause. Section 34 of the Act of 1993 starts with non obstante clause, likewise
Section 9-A of the Act of 1992. But incidentally, In this case, Section 9-A came
subsequently, i.e. it came on 25-1-1994. Therefore, it is a subsequent legislation which
will have the overriding effect over the Act of 1993. But cases might arise where both the
enactments have the non obstante clause then in that case, the proper perspective would
be that one has to see the subject and the dominant purpose for which the special
enactment was made and in case the dominant purpose is covered by that contingencies,
then notwithstanding that the Act might have come at a later point of time still the
intention can be ascertained by looking to the objects and reasons. (Para 8)
Where the respondent was notified under Securities Act and his property stood attached,
the Custodian would be in authority of that property and he would deal with the property
in the manner as directed by the Special Court. Thus the Special Court will have the
jurisdiction and not the Debt Recovery Tribunal though against the respondent the
application was filed by the Bank before Debts Recovery Tribunal for recovery of its
debts against the respondent under 1993 Act. However, by reading both the Acts
harmoniously, it could be held that whatever dues were due to the Banks or the Financial
Institutions against the respondent, could be claimed under Section 11 (2) of the Act of
1992 which specially empowers that the liabilities can be adjusted out of the securities of
the person notified in the manner provided under Section 11 (2)(b). (Para 9)
2007 AIR SCW 5333 : AIR 2007 SC 2935 : 2007 CLC 1263 (Disting.) 7
@page-SC2362

K.N. Bhatt, Sr. Advocate, Gopal Jain, Jai Singh Brar, Abeer Kumar, Manu Aggarwal and
Mrs. Manik Karanjawala, with him for Appellant; Ms. Kamini Jaiswal, Subramonium
Prasad, S. Udaya Kumar Sagar, Ms. Bina Madhavan and Hemal K. Sheth (for M/s.
Lawyer's Knit and Co.) for Respondents.
Judgement
1. A. K. MATHUR, J. :- Leave granted.
2. This appeal is directed against the order dated 17-1-2006 passed by the Division Bench
of the Bombay High Court whereby the Division Bench has held that since the property
of the respondent No. 1 has been seized under the Special Courts (Trial of Offences
Relating to Transactions in Securities) Act, 1992 (hereinafter to be referred to as the Act
of 1992), the Debts Recovery Tribunal had no jurisdiction to grant a declaration that the
properties of a notified person stand charged and the certificate against such properties
cannot be executed by the Recovery Officer under the Recovery of Debts Due to Banks
and Financial Institutions Act, 1993 (hereinafter to be referred to as the Act of 1993) and
the financial institution would have to move the Special Court in respect of the property
attached.
3. Brief facts which are necessary for disposal of this appeal are that the respondent No.1
was declared as a notified party on 6-10-2001. Pursuant to the said notification,
considering Section 3(3) of the Act of 1992, all properties, movable and immovable stood
attached simultaneously. The Custodian confirmed the attachment on 1-11-2001. The
respondent No.2 - Oriental Bank of Commerce (hereinafter to be referred to as the Bank)
filed an application being Original Application No.233 of 2002 against the respondent
No.l. The respondent No. 1 took out Miscellaneous Application for impleading the
Custodian as a party. That application came to be rejected by order dated 16-3-2005.
Aggrieved against the said order the respondent No. 1 preferred an appeal before the
Debts Recovery Appellate Tribunal (hereinafter to be referred to as the Appellate
Tribunal), That appeal came to be rejected by order dated 19-8-2005. Against the order
passed by the Appellate Tribunal, a writ petition was filed before the High Court. It was
contended by the respondent No. 1 before the Debts Recovery Tribunal that the custodian
under the Act of 1992 had to be joined as necessary party as the respondent No. 1 had
been declared as a notified party under the said Act. This was opposed by the Bank on the
ground that the defendant No.2 has been sued merely as a guarantor and therefore, the
provisions of the Act of 1992 were not attracted. It was submitted that Section 9A of the
Act of 1992 would be attracted. This was opposed by the Bank on the ground that the
provisions of Section 9A of the Act of 1992 were not attracted as the respondent No. 1
was being sued in his personal capacity as guarantor and not as a mortgagor or pledger of
the movable or immovable properties. The D.R.T. accepted the objection and rejected the
petition of respondent No. 1. Aggrieved against this order the matter was taken up before
the Appellate Tribunal on the basis that the property of the respondent No.l stood attached
by the Custodian under the Act of 1992. Therefore, the Debts Recovery Tribunal had no
jurisdiction to deal with the matter. The Appellate Tribunal held that the provisions of the
Act of 1992 are not attracted and consequently, dismissed the appeal. Aggrieved against
this order the present writ petition was filed before the Bombay High Court by
respondent No. 1. The Division Bench of the Bombay High Court held that since the
respondent No. 1 was declared as a notified party all the properties stood attached
pursuant to section 3 of the Act of 1992 and considering Section 9A of the said Act, it is
the Special Court which will have jurisdiction so far as the notified party is concerned
and as such the Division Bench of the High Court reversed the order passed by the
Appellate Tribunal and held that the Special Court will have jurisdiction and not the
Appellate Tribunal. Hence, the present appeal against the order passed by the Division
Bench of the High Court of Bombay dated 17-1-2006.
4. Mr.K.N. Bhatt, learned senior counsel appearing for the appellant strenuously urged
before us that since the Act of 1993 is a subsequent legislation which came into force in
1993 will override the Act of 1992 which came in 1992. It was contended that the decree
passed by the Debts Recovery Tribunal will prevail over the property attached under the
provisions of the Act of
@page-SC2363
1992. Therefore, the short question for our consideration is whether the Act of 1992 will
prevail or the Act of 1993. In order to better appreciate the controversy involved in the
matter we may refer to necessary provisions of both the Acts. The Special Courts (Trial of
Offences Relating to Transactions in Securities) Act, 1992 came into force in 1992.
Section 3 deals with the appointment and functions of the Custodian. Section 3 reads as
under :
"3. Appointment and functions of Custodian. - (1) The Central Government may appoint
one or more Custodian as it may deem fit for the purpose of this Act.
(2) 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 7th June, 1992, notify the name of such person in the
Official Gazette.
(3) Notwithstanding anything contained in the Code and any other law for the time being
in force, 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. (4) The property
attached under subsection (3) shall be dealt with by the Custodian in such manner as the
Special Court may direct. (5) The Custodian may take assistance of any person while
exercising his powers or for discharging his duties under this section and Sec. 4."
Section 4 deals with the contracts entered into fraudulently may be cancelled. Section 5
deals with the establishment of Special Court. Section 6 deals with the cognizance of
cases by Special Court. Section 7 deals with the jurisdiction of Special Court which is
relevant for our purpose and it reads as under :
"7. Jurisdiction of Special Court. - Notwithstanding anything contained in any other law,
any prosecution in respect of any offence referred to in sub-section (2) of Sec. 3 shall be
instituted only in the Special Court and any prosecution in respect of such offence
pending in any Court shall stand transferred to the Special Court."
Section 9 lays down the procedure and powers of Special Court. Section 9-A deals with
the jurisdiction, powers, authority and procedure of Special Court in civil matters.
Section 9-A came into force subsequently by amending Act 24 of 1994 with effect from
25th January, 1994 which reads as under :
"9-A. Jurisdiction, powers, authority and procedure of Special Court in civil matters. - (1)
On and from the commencement of the Special Court (Trial of Offences Relating to
Transactions in Securities) Amendment Act, 1994, the Special Court shall exercise all
such jurisdiction, powers and authority as were exercisable, immediately before such
commencement by any Civil Court in relation to any matter or claim -
(a) relating to any property standing attached under sub-section (3) of Sec. 3;
(b) arising out of transactions in securities entered into after the 1st day of April, 1991,
and on or before the 6th day of June, 1992. In which a person is notified under sub-
section (2) of Sec. 3 is involved as a party, broker, intermediary or in other manner.
(2) Every suit, claim or other legal proceeding (other than an appeal) pending before any
Court immediately before the commencement of the Special Court (Trial of Offences
Relating to Transactions in Securities) Amendment Act, 1994, being a suit, claim or
proceeding, the cause of action whereon it is based is such that it would have been, if it
had arisen after such commencement, within the jurisdiction of the Special Court under
sub-section (1), shall stand transferred on such commencement of the Special Court and
the Special Court may, on receipt of the records of such suit, claim or other legal
proceedings proceed to deal with it so far as may be in the same manner as a suit, claim
or legal proceeding from the stage which was reached before such transfer or from any
earlier stage or de novo as the Special Court may deem fit.
(3) On and from the commencement of the Special Court (Trial of Offences Relating to
Transactions in Securities) Amendment Act, 1994, no Court other than the Special Court
shall have, or be entitled to exercise any jurisdiction, power or authority in relation to any
matter or claim referred to in sub-section (1).
(4) While dealing with cases relating to any matter or claim under this section, the
Special Court shall not be bound by the procedure laid down by the Code of Civil
@page-SC2364
Procedure, 1908 ( 5 of 1908), but shall be guided by the principles of natural justice, and
subject to the other provisions of this Act and or any rules, the Special Court shall have
power to regulate its own procedure.
(5) Without prejudice to the other powers conferred under this Act, the Special Court
shall have, for the purposes of discharging its functions under this section, the same
powers as are vested in Civil Court under the Code of Civil Procedure, 1908 (5 of 1908),
while trying a suit in respect of the following matters, namely :
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of documents;
(c) receiving evidence on affidavits;
(d) subject to the provisions of Secs. 123 and 124 of the Indian Evidence Act, 1872,
requisitioning any public record or document or copy of such record or document from
any office;
(e) issuing commissions for the examination of witnesses or documents;
(f) reviewing its decisions;
(g) dismissing a case for default or deciding it ex parte;
(h) setting aside any order of dismissal of any case for default or any order passed by it ex
parte; and
(i) any other matter which may be prescribed by the Central Government under sub-
section (1) of Sec. 14."
Section 9-B deals with the powers of the Special Court in arbitration matters. Section 10
deals with appeal. Section 11 which deals with the discharge of liabilities and is relevant
for our purpose, reads as under :
"11 Discharge of liabilities. - (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 Sec. 3 to the Central Government or any State Government or
any local autority.
(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,"
Section 13 deals with overriding effect which has relevance for our purpose, reads as
under :
"13. Act to have overriding effect. - The provisions of this Act shall have effect
being in force or in any instrument having effect by virtue of any law, other than this Act,
or in any decree or order of any Court, tribunal or other authority."
The Recovery of Debts Due to Banks and Financial Institutions Act, 1993 came into
effect in 1993. The purpose of this Act was recovery of debts due to Banks or financial
institutions or consortium of Banks less than ten lakhs rupees or such other amount being
not less than one lakh rupees as the Central Government may by notification specify.
Under this Act Tribunals were constituted. Section 17 lays down the jurisdiction that a
Tribunal shall exercise on and from the appointed day, the powers and authority to
entertain and decide application from the Banks and financial institutions for recovery of
debts due to such banks and financial institutions. Appeal is provided against that to the
appellate authority under Section 20 of the Act. Section 34 lays down that it has the
overriding power. Section 34 reads as under :
"34. Act to have overriding effect. - (1) Save as otherwise provided in sub-section (2), the
provisions of this Act shall have effect notwithstanding anything inconsistent therewith
contained in any other law for the time being in force or in any instrument having effect
by virtue of any law other than this Act.
(2) The provisions of this Act or the rules made thereunder shall be in addition to, and not
in derogation of, the Industrial Finance Corporation Act, 1948 (15 of 1948), the State
Financial Corporation Act, 1951 (63 of 1951), the Unit Trust of India Act, 1963 (52 of
1963), The Industrial Reconstruction Bank of India Act, 1984 (62 of 1984), the Sick
Industrial Companies (Special Provisions) Act, 1985 and the Small Industries
@page-SC2365
Development Bank of India Act, 1989."
5. The admitted facts are that the respondent No. 1 -Ketan Parekh was a notified party on
6-10-2001. Therefore, on 6-10-2001 all his movable and immovable properties stood
attached. Under the Act of 1992, under Section 3(3), 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 7th
June, 1992, notify the name of such person in the official gazette and from the date when
such party is notified all properties, movable or immovable or both belonging to any
person notified shall stand attached simultaneously with the issue of the notification,
notwithstanding anything contained in the Code and any other law for the time being in
force. After attaching that property the Custodian will have the right to deal with such
property in such manner as directed by the Special Court. Therefore, an analysis of this
section means that the moment a person is notified, his property stands attached and the
Custodian is in authority of that property and he shall deal with the property in the
manner as directed by the Special Court notwithstanding anything contained in the Code
(Code means the Civil Procedure Code). Therefore, the property of the respondent herein
stood attached under the orders of the Special Court on 6-10-2001 when the respondent
was declared a notified person under sub-section (3) of Section 3 of the Act of 1992.
Section 9-A which was introduced in 1994 gives full power from the date this amended
provision came into force i.e. in 1994 that the Special Court alone will have the
jurisdiction to deal with all the cases pending immediately before such commencement
by any Civil Court in relation to any manner or claim relating to the property standing
attached under subsection (3) of Section 3. Sub-section (2) of Section 9-A says that every
suit, claim or other legal proceeding (other than an appeal) pending before any Court
immediately before the commencement of the Special Court (Trial of Offences Relating
to Transactions in Securities) Amendment Act, 1994, being a suit, claim or proceeding,
the cause of action whereon it is based is such that it would have been, if it had arisen
after such commencement, within the jurisdiction of the Special Court under sub-section
(1), shall stand transferred on such commencement of the Special Court and the Special
Court may, on receipt of the records of such suit, claim or other legal proceedings
proceed to deal with it so far as may be in the same manner as a suit, claim or legal
proceeding from the stage which was reached before such transfer or from any earlier
stage or de novo as the Special Court may deem fit. Sub-section (3) further says that no
Court other than the Special Court shall have, or be entitled to exercise any jurisdiction,
power or authority in relation to any matter or claim referred to in subsection (1). Sub-
section (4) further says that the Special Court shall not be bound by the procedure laid
down by the Code of Civil Procedure. But it shall be guided by the principles of natural
justice and subject to the other provisions of this Act and the Rules framed thereunder.
Sub-section (5) further says that the Special Court shall have all powers as a Civil Court
under the Code of Civil Procedure for trying such suits. Section 11 deals with the
discharge of liabilities. It also starts with a non- obstante clause and says that
notwithstanding anything contained in the Code or any other law for the time being in
force, the Special Court shall direct the Custodian for disposal of the property under
attachment and liabilities shall be discharged in the order i.e. (a) all revenues, taxes,
cesses and rates due from the persons notified by the Custodian under sub-section (2) of
Sec. 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 any other liability as may be specified by the Special
Court. Therefore, by virtue of section 11, the first priority has been given to all dues of
the revenues, taxes, cesses etc. The second priority has been given to any bank or
financial institution or mutual fund and the last priority has been given as directed the
Special Court. Section 13 clearly lays down that this Act will have overriding effect
being in force or in any Instrument having effect by virtue of any law, other than this Act,
or in any decree or order of any Court, tribunal or other authority. The analysis of these
necessary provisions clearly establishes that once the property of a notified person is
@page-SC2366
attached by the Custodian and the same having been notified then the property of the
notified person being movable or immovable shall be subject to the order passed by the
Special Court and the manner in which properties for discharge of the liabilities would be
dealt with has already been mentioned in Section 11 of the Act of 1992 and lastly that the
provisions of this Act will have the overriding effect even on Tribunals as is clearly and
categorically mentioned in Section 13 of the Act of 1992. Therefore, in the scheme of
things this Act has been given priority over all Acts. The Act of 1993 came for recovery
of debts due to the Banks and Financial Institutions. This Act also contains the overriding
effect. Section 34 of the Act of 1993 clearly says that this Act will have the overriding
effect for recovery of debts due to the Banks and Financial Institutions. Both the Acts
have non-obstante clause. The Act of 1993 is a subsequent legislation and the Act of 1992
is a prior legislation. Therefore, it was contended by learned senior counsel for the
appellant that since the Act of 1993 is a subsequent legislation, it should have the
overriding effect over the Act of 1992. As against this, learned senior counsel for the
respondent No.l, contended that Section 9-A of the Act of 1992 came by the amending
Act 24 of 1994 on 25-1-1994 and it is specifically provided that after a person is notified
under section 3(3) of the Act of 1992, his property pertaining to the transactions in
securities entered after the 1st day of April, 1991 and on and before 6th June, 1992 shall
stand attached and the Special Court will have the jurisdiction and none else. Learned
senior counsel for the respondent No.1 submitted that this provisions having come
subsequently after the Act 16 of 1993, Section 9-A of the Act of 1992 (came into force
w.e.f. 25-1-1994) will have the overriding effect over the Act of 1993. The contention of
learned senior counsel for respondent No. 1 appears to be justified. Apart from that it is
provided in sub-section (3) of Section 3 that the transactions in securities entered into
after 1st day of April, 1991 and on or before 6th June, 1992, the properties pertaining to
these securities shall vest with the Custodian to be dealt with as directed by the Special
Court. Therefore, the properties pertaining to these transactions during the aforesaid
period, will be subject to the jurisdiction of the Special Court only. There is another
reason to come to this conclusion that in fact this Act was specially meant to deal with the
fraudulent transactions which has taken place from 1st of April, 1991 to 6th of June,
1992. Therefore, this Act has special purpose to deal with the scam which has taken place
in securities transactions during this period. The special purpose behind this Act is more
than apparent from the Statement of Objects and Reasons and the Statement of Objects
and Reasons amply clarifies this position. The Statement of Objects and Reasons reads as
under :
"Statement of Objects and Reasons. - (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.
6. Therefore, this Act has a special task before it and that task has to be dealt with in the
parameters laid down by this Act. The Act of 1993 was of comparatively general in
nature pertaining to recovery of debts due to the Banks and Financial Institutions. The
idea was that all the suits pertaining to recoveries of Banks and Financial Institutions
spreading over the Civil Courts and this has resulted into great strain on the Banks and
Financial Institutions. Therefore, in order to meet that contingency this
@page-SC2367
Act was promulgated. The preamble in this Act clearly reads as under :
"An Act to provide for the establishment of Tribunals for expeditious adjudication and
recovery of debts due to banks and financial institutions and for matters connected
therewith or incidental thereto." Therefore, the purpose of the Act of 1993 was to
expedite the recovery of the debts due to the banks and financial institutions. Incidentally,
the purpose of both the Acts has separate area of operation. Application was filed by the
Bank before the Debts Recovery Tribunal for recovery of its debts against the same
person i.e. Ketan Parekh and temporary injunction was issued to disclose the assets and
during the pendency of these Original Applications the jurisdiction of the Tribunal was
challenged. Therefore, the issue came up specially before the High Court. The effect of
Act of 1992 has special purpose and incidentally the subject matter appears to be the
same under both the Acts but the Act of 1992 clearly lays down the specific purpose i.e.
the scam which has taken place relating to the transactions in securities from 1-4-1991 to
6-6-1992 to deal with such scam only. Section 9-A which has come subsequently in the
Act of 1992 i.e. on 25-1-1994 deals with the overriding effect on the Act of 1993.
Therefore, the Act of 1992 has the overriding effect over the Act of 1993.
7
. In this connection, our attention was invited to a decision of this Court in B.O.I. Finance
Ltd. v. Custodian and Ors. [(1997) 10 SCC 488]. In this case, notification was issued
under the Securities Contracts (Regulation) Act, 1956 prohibiting all contracts for sale or
purchase of securities other than such spot delivery contract or contract for cash or hand
delivery or special delivery in any securities as permissible under the Act. The transaction
was consisting of two interconnected legs i.e. ready leg consisting of sale of securities by
the brokers and purchase thereof by the banks at market price and the forward leg
consisting of sale back of the securities by the banks and purchase thereof by the brokers
after a period of 14 days on a fixed date at a price determined on the first date. Their
Lordships held that the ready-forward transaction is severable into two parts i.e. the ready
leg and the forward leg. Ready leg transaction was not illegal, unlawful or prohibited
under Section 23 of the Contract Act. Ready leg having been completed prior to the
notified date, forward leg which is illegal being hit by the notification, the same has to be
ignored. It was further held that once the payment of market price is made the title to the
securities stood validly transferred to the banks under Transfer of Property Act and
thereby the banks became owners and the ready leg having been performed illegally of
the forward leg contained in the agreements cannot affect the transfers which had already
taken place. The appellant banks had prior to 6-6-1992 entered into contracts with
different brokers for the purchase and sale of certain securities which were not listed on
any stock exchange. Therefore, such transactions were completed after the payment of
agreed price and delivery of securities were received before 6-6-1992, Therefore, it was
held that the order passed by the Special Court on application filed by the Custodian of
the notified person was not correct and the order passed by the Special Court was set
aside. This was a case in which the transaction was found to be valid. Therefore, this case
cannot provide any assistance. Our attention was invited to another decision of this Court
in Tax Recovery Officer, Central Range-I v. Custodian and Ors. [(2007) 7 SCC 461]. In
that case it was held that that the property of any person notified under section 3(2) and
(3) of the Act can be attached and the jurisdiction of the Special Court is confined to that
property of the notified person only. It was found that the Company D which was notified
as a party under section 3(2) of the Act of 1992 and not the Company K. Company D
owed money from Company K and its subsidiaries and it was in execution of the decree
passed in the favour of Company D, the property of Company K was put to auction.
Thus, the Special Court could not have entertained the application moved by the Income-
Tax Department for realization of its income tax dues from the Company K and therefore,
it was held that the application moved by the Income Tax Department was rightly
rejected by the Special Court. Our attention was invited to a decision of this Court in Life
Insurance Corporation of India v. D. J. Bahadur and Ors. [(1981) 1 SCC 315]. In this
case, the question was whether the provisions of the 1997 AIR SCW 1772
2007 AIR SCW 5333
AIR 1980 SC 2181
@page-SC2368
Industrial Disputes Act will prevail or the provisions of the Life Insurance ( Alteration of
Remuneration and other Terms and Conditions of Service of Employees) Order, 1957
framed under the Life Insurance Corporation Act, 1956. In that context, their Lordships
after dealing with the provisions of Life Insurance Corporation Act and the Rules framed
thereunder held that the case will be covered by the Industrial Disputes Act. It was
observed per Krishna Iyer, J. as follows :
"In determining whether a statute is a special or a general one, the focus must be on the
principal subject-matter plus the particular perspective. For certain purposes, an Act may
be general and for certain other purpose it may be special. Vis-a-vis 'industrial disputes' at
the termination of the settlement as between the workmen and the Corporation the ID Act
is a special legislation and the LIC Act a general legislation. So the ID Act, being a
special law, will prevail over the LIC Act which is a general law."
Pathak, J. concurring with Krishna Iyer, J. observed as follows :
"Law declared by the court in respect of an award holds true in the case of a settlement.
Not only are the statutory provisions pertaining to a settlement and an award comparable
in this regard but, if anything the observations if read in respect of a settlement, which
after all is a voluntary agreement between the parties, would seem to hold more strongly."
Our attention was invited to a decision of this Court in L.S. Synthetics Ltd. v. Fairgrowth
Financial Services Ltd. and Anr. [(2004) 11 SCC 456]. In this case it was held that the
contention that only those properties belonging to the notified person which are the
subject-matter of the transactions in securities would stand attached and for that purpose
Section 9-A of the Act must be read down was not sustainable. Our attention was also
invited to a decision of this Court in Allahabad Bank v. Canara Bank and Anr. [(2000) 4
SCC 406]. In this case there was a question of jurisdiction whether the Recovery of Debts
Due to Banks and Financial Institutions Act, 1993 will prevail or the provisions of the
Companies Act, 1956. In that context their Lordships observed as follows :2004 AIR
SCW 6868
2000 AIR SCW 1347
"Alternatively, the Companies Act, 1956 and the RDB Act can both be treated as special
laws, and the principle that when there are two special laws, the latter will normally
prevail over the former if there is a provision in the latter special Act giving it overriding
effect, can also be applied. Such a provision is there in the RDB Act, namely Section 34.
Therefore, in view of Section 34 of the RDB Act, the said Act overrides the Companies
Act, to the extent there is anything inconsistent between the Acts."
8. In the present case, both the two Acts i.e. the Act of 1992 and the Act of 1993 start with
the non obstante clause. Section 34 of the Act of 1993 starts with non-obstante clause,
likewise Section 9-A of the Act of 1992. But incidentally, in this case Section 9-A came
subsequently, i.e. it came on 25-1-1994. Therefore, it is a subsequent legislation which
will have the overriding effect over the Act of 1993. But cases might arise where both the
enactments have the non obstante clause then in that case, the proper perspective would
be that one has to see the subject and the dominant purpose for which the special
enactment was made and in case the dominant purpose is covered by that contingencies,
then notwithstanding that the Act might have come at a later point of time still the
intention can be ascertained by looking to the objects and reasons. However, so far as the
present case is concerned, it is more than clear that Section 9-A of the Act of 1992 was
amended on 25-1-1994 whereas the Act of 1993 came in 1993. Therefore, the Act of 1992
as amended to include Section 9-A in 1994 being subsequent legislation will prevail and
not the provisions of the Act of 1993.
9. Apart from this, in the present case both the Acts can be read harmoniously. Whatever
dues are due to the Banks or the Financial Institutions can be claimed under Section 11
(2) of the Act of 1992 which specially empowers that the liabilities can be adjusted out of
the securities of the person notified in the manner provided under Section 11(2)(b).
Therefore, in the present case, the Bank can certainly make an application before the
Special Court under Section 11(2)(b) of the Act of 1992 for discharge of their liabilities
against the securities of the notified person.
10. As a result of our above discussion, the view taken by the Division Bench of the
@page-SC2369
High Court of Bombay Appears to be justified and there is no ground to interfere with the
same. Consequently, the appeal is dismissed with no order as to costs.
Appeal dismissed.
AIR 2008 SUPREME COURT 2369 "Venkatesan v. State of Tamil Nadu"
(From : Madras)
Venkatesan v. State of T.N..
(A) Penal Code (45 of 1860), S.300 - Evidence Act (1 of 1872), S.3 - MURDER -
EVIDENCE - Murder - Proof - Can be on basis of circumstantial evidence - Conditions
precedent for conviction on basis of circumstantial evidence, stated. (Paras 2, 3, 5,
6, 10)
(B) Penal Code (45 of 1860), S.300 - MURDER - EVIDENCE - Murder - Circumstantial
evidence - Last seen together - Deceased alleged to have gone with accused to other
village and did not return - His body found in a field two days later - Witnesses to last
seen together' circumstance - Not specific about date on which accused and deceased
were seen - Neither knowing names of accused nor giving any identification mark or
explaining how they could identify - Conviction could not be based on their evidence.
Crl. A. No.741 of 1990, D/-03-07-2000 (Mad.), Reversed. (Paras 11, 16)
2005 AIR SCW 905 : AIR 2005 SC 1000 : 2005 Cri LJ 1428 : 2005 All LJ 885 (Rel. on)
13
(2005) 12 SCC 438 15
1992 AIR SCW 640 : AIR 1992 SC 840 : 1992 Cri LJ 1104 : 1992 All LJ 1115 (Rel. on)
6
AIR 1989 SC 1890 : 1989 Cri LJ 2124 (Ref.) 3
AIR 1987 SC 350 : 1987 Cri LJ 330 (Ref.) 3
AIR 1988 SC 1224 : 1985 Cri LJ 1479 (Ref.) 3
AIR 1983 SC 446 : 1983 Cri LJ 846 (Ref.) 3
AIR 1977 SC 1063 : 1977 Cri LJ (Ref.) 3
AIR 1956 SC 316 : 1956 Cri LJ 559 (Ref.) 3
K.V. Viswanathan, B. Raghunath, K. Venkataraman and Vijay Kumar, for Appellant; V.
Kanagaraj, Sr. Advocate, V.G. Pragasam, Joseph Aristotle and S. Prabhu
Ramasubramanian, with him for Respondent.
Judgement
Dr. ARIJIT PASAYAT, J. :- Appellant, who was described as A2 in Sessions Case No. 117
of 1990, had filed an appeal to challenge his conviction for offence punishable under
Section 302 of the Indian Penal Code, 1860 (in short the 'IPC') before the Madras High
Court. Judgment dated 3-7-2000 in Criminal Appeal No. 741 of 1990. The appeal was
dismissed. Appellant faced trial along with one Doraiswamy who has described as A1. It
was alleged that both of them were responsible for murder of Rajendran (hereinafter
referred to as the 'deceased') on 19-4-1988 at about 10 PM. Trial court acquitted A1 while
holding appellant guilty of offence punishable under Section 302 IPC. Background facts
as projected in a nutshell are as follows :
PW 2 is the father and PW.3 is the younger brother of the deceased Rajendran. They were
residents of Valluvampakkam. The accused were also residing in the same village. The
deceased was having illicit relationship with the wife of A1 and PW.2 took his son to task
and advised him not to have any relationship with the wife of A1. It is also the case of the
prosecution that the deceased tried to molest PW.5 the wife of A2. This is said to be the
motive for the occurrence.
On 19-4-1988, PW.2 left Vallugampakkam for Madras to see his daughter and when
returned at 8.00 p.m. on 21-4-1988 to the house he found his son Rajendran missing from
the house. He questioned his other son PW.3 who then told him that the deceased left in
the company of A2 for Ranipet and did not return. PW.2 thereafter advised PW.3 to go
and search for the deceased at Ranipet. Accordingly, PW.3 went to Ranipet and searched
for the deceased, but could not trace him.
@page-SC2370
Meanwhile, on 22-4-1988 at 7.0 a.m. PW.1, the Village Administrative Officer of
Bagaveli, was informed by his menial that a body is lying in a field. PW.1 went to the
spot and found the body. Around the neck of the body, a torn lungi, M.O.5, was seen tied.
PW.1 thereafter went to Kaveripakkam Police Station where he gave a complaint to PW.
14, the Sub- Inspector of Police, at 11.45 a.m. and the same stands marked as Ex.P1 in
this case. PW. 14 on the basis of Ex.P-1, registered a case in Crime No.160 of 1988 under
Section 174 Cr. P. C. Ex. P-14 is a copy of printed First Information Report, P.W. 14
reached the scene of occurrence where at 12.10 p.m. he prepared an observation mahasar,
Ex.P-2 in the presence 3 of PW. 1 and also drew a rough sketch, Ex.P-15. The dead body
was caused to be photographed and M.O.4 series are the photographs. He also seized
M.Os 1 to 3, a shirt, a lungi, and a banian respectively, from the scene under a mahasar
Ex. P-3. He has converted the crime to one of suspicious death and sent copies of express
report, Ex. P-16, to the court and to the higher officials. He conducted inquest between
12.30 p.m. and 2.30 p.m. over the dead body of Rajendran in the presence of
Panchayatdars during which he examined and recorded the statements of PW.1 and
others. Ex. P-17 is the inquest report. After the inquest, PW. 14 sent the dead body with
his requisition through PW. 12 for post-mortem.
On completion of investigation the charge sheet was filed, case was committed to the
Court of Session for trial. Accused persons pleaded innocence. Undisputedly the case at
hand is a case of circumstantial evidence. While finding that the evidence is inadequate to
fasten the guilt on A1, the trial court held A2, the appellant herein guilty based on the
evidence of PWs 3, 4, 8 and 9 who claimed to have seen the deceased last in the company
of the appellant. The conviction, as noted above, was challenged before the High Court.
By the impugned judgment the appeal was dismissed.
In support of the appeal learned counsel for the appellant submitted that the evidence of
PWs 3, 4, 8 and 9 should not have been relied upon. It is pointed out that all these
witnesses were examined after considerable length of time. Further there was
considerable gap between the time the witnesses alleged to have seen the accused
appellant in the company of the deceased and the discovery of the dead body on 22-4-
1988. The Doctor PW 11 who examined the dead body found that the same was in an
extremely decomposed state. There was no reason for PWs. 8 and 9 to remember that
appellant was in the company of the deceased on a particular day. PW 4 did not also
speak of the date but only said that he had seen the appellant and the deceased on a
Tuesday. It is pointed out that in view of the nature of the evidence adduced the trial court
and the High Court should not have convicted the appellant.
2. Before analyzing factual aspects it may be stated that for a crime to be proved it is not
necessary that the crime must be seen to have been committed and must, in all
circumstances be proved by direct ocular evidence by examining before the Court those
persons who had seen its commission. The offence can be proved by circumstantial
evidence also. The principal fact or factum probandum may be proved indirectly by
means of certain inferences drawn from factum probans, that is, the evidentiary facts. To
put it differently circumstantial evidence is not direct to the point in issue but consists of
evidence of various other facts which are so closely associated with the fact in issue that
taken together they form a chain of circumstances from which the existence of the
principal fact can be legally inferred or presumed.
3. 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 connectedwith 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
@page-SC2371
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.
4
. 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 : 1996 AIR
SCW 2903, Para 20A
"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....".
5. 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."
6
. 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. 1992 AIR SCW 640
7. 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".
8. 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 this Court as far back as in 1952.
9
. In Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh, (AIR 1952 SC
343), wherein it was observed thus : Para 10 of AIR
"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."
10. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of
Maharashtra, (AIR 1984 SC 1622).
@page-SC2372
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 complete 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.
11. Coming to the factual scenario it is to be noted that as rightly contented by learned
counsel for the appellant, that PW 4 did not say that he had seen the appellant and the
deceased on any particular date. He had merely stated that he had seen them on a
Tuesday. The trial court and the High Court without anything further came to hold that he
meant 19-4-1988, because he stated that he saw them on Tuesday. Similarly PW 9 has
stated that he did not know as to which of the accused i.e. whether A1 or A2 came with
the deceased. Interestingly he stated that only after an enquiry by the inspector, he came
to know the name of the appellant. He has also stated that on a Tuesday night he had seen
him. He does not speak of any date. He also admitted in cross examination that he does
not remember who comes for taking drinks as several persons were coming for taking
drinks. It was not explained as to how he remembered at the time of his examination in
Court which was after about 2Â½ years of the alleged date of occurrence to have seen
accused and the deceased together. So far as the PW 8 is concerned he had identified A2
for the first time in Court. In his cross examination he accepted that he law the appellant
for the first time after the day on which he had seen him. Before that he did not see A2
and he did not give any identification mark of A2 to police.
12. He has further admitted that after pointing out the appellant, the police enquired as to
whether he had seen the person.
13
. So far as the last seen aspect is concerned it is necessary to take note of two decisions of
this court. In State of U.P. v. Satish (2005 (3) SCC 114] it was noted as follows : 2005
"22. The last seen theory comes into play where the time-gap between the point of time
when the accused and the deceased were seen last alive and when the deceased is found
dead is so small that possibility of any person other than the accused being the author of
the crime becomes impossible. It would be difficult in some cases to positively establish
that the deceased was last seen with the accused when there is a long gap and possibility
of other persons coming in between exists. In the absence of any other positive evidence
to conclude that the accused and the deceased were last seen together, it would be
hazardous to come to a conclusion of guilt in those cases. In this case there is positive
evidence that the deceased and the accused were seen together by witnesses PWs. 3 and
5, in addition to the evidence of PW-2."
14
. In Ramreddy Rajesh Khanna Reddy v. State of A.P. [2006 (10 SCC 172] it was noted as
follows : 2006 AIR SCW 1602
"27. The last-seen theory, furthermore, comes into play where the time gap between the
point of time when the accused and the deceased were last seen alive and the deceased is
found dead is so small that possibility of any person other than the accused being the
author of the crime becomes impossible. Even in such a case the courts should look for
some corroboration.
28. In State of U.P. v. Satish [2005 (3) SCC 114] this Court observed: (SCC p. 123, para
22) 2005 AIR SCW 905, Para 23
"22. The last-seen theory comes into play where the time-gap between the point of time
when the accused and the deceased were last seen alive and when the deceased is found
dead is so small that possibility of any person other than the accused being the author of
the crime becomes impossible. It would be difficult in some cases to positively
@page-SC2373
establish that the deceased was last seen with the accused when there is a long gap and
possibility of other persons coming in between exists. In the absence of any other positive
evidence to conclude that the accused and the deceased were last seen together, it would
be hazardous to come to a conclusion of guilt in those cases. In this casethere is positive
evidence that the deceased and the accused were seen together by witnesses PWs 3 and 5,
in addition to the evidence of PW 2."
(See also Bodhraj v. State of JandK (2002 (8) SCC 45).)" 2002 AIR SCW 3655
15. A similar view was also taken in Jaswant Gir v. State of Punjab [2005 (12) SCC 438].
16. Above being the position, the inevitable conclusion is that the trial court and the High
Court were not justified in directing conviction of the appellant. He is acquitted of the
charges. The bail bonds executed pursuant to the order granting bail shall stand
discharged.
17. The appeal is allowed.
Appeal allowed.
AIR 2008 SUPREME COURT 2373 "Sayeeda Farhana Shamim v. State of Bihar"
(From : Patna)*
Coram : 2 A. K. MATHUR AND AFTAB ALAM, JJ.
-2008.
Sayeeda Farhana Shamim v. State of Bihar and Anr.
Criminal P.C. (2 of 1974), S.244, S.246(6) - WARRANT CASE - EVIDENCE - WORDS
AND PHRASES - MAGISTRATE - Expression "the evidence of any remaining
witnesses for prosecution shall next be taken" in S.246(6) - Should be given wide
interpretation - Thus Magistrate has discretion to entertain supplementary list of
witnesses - However, discretion to be exercised judiciously for advancement of justice -
And not to be used for mala fide purpose to harass accused.
Crl. Misc. No. 23629 of 2005, D/-13-12-2006 (Pat.), Reversed.
AIR 1969 Cal 421, Overruled.
The expression used as, "the evidence of any remaining witnesses for the prosecution
shall next be taken" in S. 246(6) should be given wide interpretation. Therefore, the
Magistrate has discretion, before he closes the trial, to summon the witnesses if it
advances the cause of justice. The discretion which has been conferred on the Magistrate
under S. 244(2) and S. 246(6), Cr. P. C. should be used in appropriate cases for reasons to
be recorded. The discretion should not be used fancifully and for a mala fide purpose to
harass the accused. It is quite possible that sometimes when the complainant fails to
substantiate the allegation, he may resort to dilatory tactics and thereby harass the
accused by giving supplementary list to prolong the continuance of the case. This should
be checked but in case it is found that in fact the application for summoning the
additional witnesses is made for bona fide purpose and to substantiate the allegations
made in the complaint, then the Magistrate may exercise such power in appropriate case.
Crl. Misc. No. 23629 of 2005, D/-13-12-2006 (Pat), Reversed.
AIR 1969 Cal 421, Overruled. 1993 Cri LJ 32 (AP), 1992 Cri LJ 1554, (All), 1977 Cri LJ
425 (Mad), AIR 1967 Ker 233, AIR 1960 Bom 513, AIR 1958 Mad 341, Approved.
The power of the Magistrate should not be fettered either under Section 244 or under sub-
section (6) of Section 246 of the Cr. P. C. and full latitude should be given to the
Magistrate to exercise the discretion to entertain a supplementary list of witnesses. But
while accepting the supplementary list the Magistrate shall exercise its discretion
judiciously for the advancement of the cause of justice and not to give a handle to the
complainant to harass the accused. (Paras 8, 9)
1993 Cri LJ 32 (AP) (Approved) 5, 6
1992 Cri LJ 1554 (All) (Approved) 5, 6
1977 Cri LJ 425 (Mad) (Approved) 5, 6
AIR 1969 Cal 421 : 1969 Cri LJ 1117 (Overruled) 7
AIR 1967 Ker 233 : 1967 Cri LJ 1517 (1) (Approved) 5, 6
AIR 1960 Bom 513 : 1960 Cri LJ 1569 (Approved) 5, 6
AIR 1958 Mad 341 : 1958 Cri LJ 904 (Approved) 5, 6
Anil K. Jha and Mrs. Alka Jha, for Appellant; Gopal Singh, Kumud Shekhar, S.W.A.
Qadri and Lakshmi Raman Singh, for
@page-SC2374
Respondents.
* Cri. Misc. No. 23629 of 2005, D/-13-12-2006 (Pat.)
Judgement
2. This appeal is directed against the order dated 13-12-2006 passed by learned Single
Judge of the Patna High Court whereby the learned single Judge of the High Court has
quashed the order passed by the learned Sub-divisional Judicial Magistrate, Bhagalpur
(hereinafter to be referred to as the S.D.J.M.) in Complaint Case No. 1115 of 1999 by
which the learned S.D.J.M. allowed prayer of the complainant by order dated 25-5-2005
to examine five witnesses named in the supplementary list filed by the complainant. A
complaint was filed under Sections 323, 406, 498A of the Indian Penal Code and under
Sections 3 and 4 of the Prevention of Dowry Act. Therefore, the limited question arose
whether the complainant can file a supplementary list of witnesses or not.
3. In order to appreciate the controversy involved in the matter brief facts may be
enumerated. A complaint was filed under Sections 323, 406, 498A of the Indian Penal
Code and under Sections 3 and 4 of the Prevention of Dowry Act. The S.D.J.M.
registered the complaint. Syed Abdul Shamim, the father of the complainant was
examined under Section 202 of the Code of Criminal Procedure but he died on 9-1-2001.
Therefore, this witness could not be tried during the trial. Out of the remaining four
witnesses, only two witnesses i.e. Syed Abdul Shalim and Mohd. Sheru were examined
before charge and were also examined after the charge. The rest of the two witnesses
namely, Syed Abdul Fahim and Syed Obaidulla were gained over and therefore, they did
not come to the witness box. Then, an application was filed by the complainant to
examine further witnesses before the charge on 3-1-2003. The accused persons filed a
rejoinder on 5-1-2003. However, the S.D.J.M., Bhagalpur rejected the petition filed on
behalf of the complainant to examine further witnesses before charge by its order dated 1-
5-2003. The S.D.J.M. framed the charge on 30-8-2004. Then again on 24-1-2005 the
complainant filed a petition before the S.D.J.M., Bhagalpur and prayed for issuance of
summons to the witnesses whose names appeared in the list attached with the application.
That application was filed by the complainant after the charges were framed and the
witnesses were cross-examined after the charge. As the rest of the witnesses were gained
over and they did not support the case of the complainant, therefore, a supplementary list
of witnesses was attached to the application filed by the complainant namely, (i) Md.
Wajahat son of Md.Ilyas, resident of Balha Narayanpur, P.S. Bhawanipur, District
Bhagalpur, (ii) Md. Zafar son of late Habib, (iii) Bibi Afsana Shamim wife of late Saiyad
Abdul Shamim, (iv) Pappu alias Ram Chandra Tiwari son of Basahan Tiwari, and (v) Md.
Rasid son of late Md. Safi, all of Mohalla Barahapura, P. S. Ishakchak, District.
Bhagalpur. A rejoinder was filed to the petition filed by the complainant. However, on 25-
4-2005, learned S.D.J.M. after hearing both the parties allowed the application filed by
the complainant and the complainant was directed to examine all the five witnesses
whose names appeared in the list. The S.D.J.M. found that this was a case of torturing a
married woman and demanding dowry which are continuing offences, therefore, some
more persons can throw light on the occurrence which may help the S.D.J.M. to arrive at
a just decision and do proper justice to the parties. This order passed by the S.D.J.M. On
25-4-2005 was challenged by the respondents by filing a petition before the High Court.
Meanwhile, on 16-11-2005 Md. Zafar was examined-in-chief and he was also cross-
examined later on 23-1-2006. On 30-3-2006 Md. Razi was examined and he was also
cross-examined by the defence on the same day. Therefore, out of the five witnesses two
witnesses were examined and three witnesses remained to be examined. Meanwhile, on
13-12-2006 the petition filed by the respondents before the High Court was allowed and
the order of the S.D.J.M. passed on 25-4-2005 in Complaint Case No.1115 of 1999 was
quashed. Learned Single Judge of the High Court took the view that the names of these
witnesses were not given as required under Section 204(2) of the Code of Criminal
Procedure (hereinafter to be referred to as Cr.P.C.). Therefore, at a later stage
supplementary list of witnesses under Section 244(2), Cr.P.C. could not be furnished to be
examined. Learned Single Judge accordingly, allowed the petition and quashed the order
of the S.D.J.M., Bhagalpur. Hence, the present appeal.
4. We have bestowed the best of our consideration to the order passed by the learned
Single Judge of the Patna High Court. The procedure as to how to proceed on a complaint
@page-SC2375
filed before the Magistrate has been dealt with in Chapter XV. Under Section 200, Cr.P.C.
the Magistrate taking cognizance of offence can examine on oath the complainant and the
witnesses, if any, and that shall be reduced in writing and in case the Magistrate is of the
opinion that cognizable offence is made out he can issue summons under Section 204,
Cr.P.C. and if he finds that no sufficient material Is there, then he can dismiss the
complaint under Section 203, Cr.P.C. However, in the present case, process was issued
under Section 204, Cr.P.C. Thereafter, charge was framed and the trial began in the
present case. Then under Section 244, Cr.P.C. the S.D.J.M. proceeded to hear the
prosecution and took all such evidence as was produced in support of the complaint.
Under Section 246, Cr.P.C. if the accused is not discharged, then the Magistrate will
proceed and take the evidence of the remaining witnesses for the prosecution. Now, the
question is whether a supplementary list of witnesses can be furnished by the
complainant and the Magistrate can summon those witnesses to be examined. The
question is whatever witnesses who have been examined under Section 244, Cr.P.C. the
Magistrate cannot entertain any further list of witnesses to be examined by the
complainant to substantiate his allegation in the complaint. It is true that under Section
244, Cr.P.C. if the charge is framed, then the prosecution has to examine the evidence
produced by it in support of its case. After that the accused will have the right to cross-
examine and the matter will proceed to be decided under Section 246. But before the
matter is decided during the pendency of the trial can the Magistrate entertain any
petition filed by the prosecution for examining additional evidence in support of its case.
5. Learned counsel for the appellant invited our attention to the following decisions of
various High Courts.
i. 1993 Cri LJ 32, Jamuna Rani v. S. Krishna Kumar and Ors.
ii. 1992 Cri LJ 1554, Nawal Kishore Shukla and Ors. v. State of U.P. and Anr.
iii. 1977 Cri LJ 425, S.Vivekanantham v. R.Viswanathan and Ors.
iv. AIR 1967 Kerala 233, V. Ratna Shenoy v. S. A. Prabhu and Ors.
v. AIR 1960 Bombay 513, State of Bombay v. Janardhan and Ors.
vi. AIR 1958 Madras 341, K. Somasundaram v. Gopal and Anr.
Before, we refer to decisions of various High Courts, it may be mentioned here that the
discretion of the Magistrate is nowhere fettered by any of the provisions contained in
Cr.P.C. Section 244, Cr.P.C. reads as under :
"244. Evidence for prosecution.- (1) When, in any warrant-case instituted otherwise than
on a police report the accused appears or is brought before a Magistrate, the Magistrate
shall proceed to hear the prosecution and take all such evidence as may be produced in
support of the prosecution
(2) The Magistrate may, on the application of the prosecution, issue a summons to any of
its witnesses directing him to attend or to produce any document or other thing."
The expression, used as the Magistrate shall proceed to hear the prosecution and take all
such evidence as may be produced in support of the prosecution'. Similarly, sub-section
(6) of Section 246, Cr.P.C. reads as under :
"(6) The evidence of any remaining witnesses for the prosecution shall next be taken and
after cross-examination and re-examination (if any); they shall also be discharged."
The expression used as, 'the evidence of any remaining witnesses for the prosecution
shall next be taken.' Therefore, the Magistrate has discretion, before he closes the trial, to
summon the witnesses if it advances the cause of justice. Here we want to say a word of
caution that the discretion which has been conferred on the Magistrate under Section
244(2) and Section 246(6), Cr.P.C. should be used in appropriate cases for reasons to be
recorded. The discretion should not be used fancifully and for a mala fide purpose to
harass the accused. It is quite possible that sometimes when the complainant fails to
substantiate the allegation, he may resort to dilatory tactics and thereby harass the
accused by giving supplementary list to prolong the continuance of the case. This should
be checked but in case it is found that in fact the application for summoning the
additional witnesses is made for bona fide purpose and to substantiate the allegations
made in the complaint, then the Magistrate may exercise such power in appropriate case.
6
. Learned counsel for the appellant invited 1993 Cri LJ 32
@page-SC2376
our attention to the decision of the Andhra Pradesh High Court in Jamuna Rani (supra)
wherein learned Single Judge has referred to various decisions of different High Courts
i.e. Madras, Bombay and Allahabad High Courts and held that the Court has discretion
and it is not confined to the witnesses mentioned in the list appended to the complaint but
it refers to any other witness mentioned in a subsequent application filed before the
discharge order is passed by the Magistrate. It was held by the Andhra Pradesh High
Court in the case of Jamuna Rani (supra) as under :
"Taking into account the views expressed by the Madras, Bombay and Allahabad High
Court and on interpreting 'all such evidence' in S. 244(1), I feel that it does not limit to
the witnesses mentioned in the list appended to the complaint but it refers to any other
witness mentioned in a subsequent application filed before the discharge order is passed
by the Magistrate."
Similarly, the Allahabad High Court in Nawal Kishore Shukla and Ors. (supra) has taken
an identical view. Learned Single Judge of the High Court held as follows : 1992
Cri LJ 1554
"As regards the order permitting the complainant to examine a witness, not named in the
list of witnesses, the learned Magistrate could have done so in the circumstances of the
case. It was not necessary that all the witnesses named in the list of witnesses should have
been examined before such a permission could have been granted. The witness was in
attendance and the prosecution evidence was being recorded under Section 244, Cr.P.C.
The order by the learned Magistrate permitting the complainant to examine the witness
cannot be said to be illegal or unjust."
Similar view was taken by the Madras High Court in S. Vivekanantham (supra). In this
case learned Single Judge observed as follows : 1977 Cri LJ 425
"Section 244 is wide enough to give power to a Court to accept a supplemental or

additional list of witnesses given by a complainant and to issue summons to them and
record their evidence. Nowhere the section lays down that the complainant will not be
entitled to file a supplemental list of witnesses nor the Court empowered to entertain such
a list and examine one or more of the witnesses cited therein. Though Section 204(2) of
the new Code prescribes that no summons or warrant shall be issued against the accused
under sub-section (1) until a list of the prosecution witnesses has been filed, that cannot
be taken to mean that a complainant is irretrievably chained to the first list of witnesses
filed by him and he cannot seek the permission of the court to examine additional
witnesses even where circumstances or interests of justice warrant such examination. To
hold otherwise would actually lead to grave injustice and hardships to complainants."
Learned Single Judge has followed the decision of the Division Bench of the Madras
High Court in K. Somasundaram (supra) which reads as under : AIR 1958 Mad 341
"The list filed under S. 204 (1-A) can be added to by supplemental lists accompanied by
applications to the Court to summon those new witnesses. Such supplemental lists can be
in addition to all the witnesses in the primary list filed by the private complainant under
S.204(1) Cr. P.C., or in addition only to such of the witnesses in the primary list whom he
decides to examine. The phrase "take all such evidence as may be produced in support of
the prosecution" in S. 244(1), and S. 244(2) and S. 252(2), Cr.P.C. shows the ample
powers of the Court in this respect."
Similar view has been taken by the learned Single Judge of the Bombay High Court in
State of Bombay v. Janardhan and Ors. (supra) wherein it has been held as follows :
AIR 1960 Bom 513
"After the insertion of S.204 (1A), S. 256 has to be read along with S.252 also with
section 204(1A). Therefore, in cases instituted otherwise on a police report the
complainant is restricted to the examination of witnesses whose names are given in the
list under section 204(1A). At the same time in a proper case the list can be added to with
the permission of the Court. The Court should not, however, give permission to add
names to the list if it is going to prejudice the case of the accused or if it is not in the
interests of justice."
Similar view has been taken by learned Single Judge of the Kerala High Court in V.
Ratna Shenoy (supra). Relying on the decision of Madras High Court in K.
Somasundaram (supra), the learned Single Judge of the Kerala High Court observed as
follows : AIR 1967 Ker 233
AIR 1958 Mad 341
@page-SC2377
"I cannot agree with the view that the word 'remaining witnesses' involves only those that
are left out from the first list. It would be open to the learned Magistrate to examine
witnesses and to admit any essential documents which the prosecution wishes to
produce."
The Learned Single Judge observed that the expression appearing in 'remaining
witnesses' should be given wide interpretation.
7. As against this, our attention was invited to a decision of the Calcutta High Court in
Hari Pada Banerjee v. Hem Kanta Sen ( AIR 1969 Calcutta 421). Learned Single Judge of
the Calcutta High Court has held as follows :
"The expression 'remaining witnesses' in Section 256 should not be given an
unnecessarily wide interpretation and it means witnesses originally included in the list
submitted under Section 252(2) but not subsequently examined."
But as against this, the consensus opinion of the High Courts of Andhra Pradesh, Kerala,
Madras, Bombay and Allahabad appears to be more sound.
8. In view of the consensus of the opinion which has emerged from various decisions of
the High Courts appears to be that the power of the Magistrate should not be fettered
either under Section 244 or under sub-section (6) of Section 246 of the Cr.P.C. and full
latitude should be given to the Magistrate to exercise the discretion to entertain a
supplementary list. But as we have already added a word of caution that while accepting
the supplementary list the Magistrate shall exercise its discretion judiciously for the
advancement of the cause of justice and not to give a handle to the complainant to harass
the accused.
9. As a result of our above discussion, the view taken by learned Single Judge of the
Patna High Court cannot be sustained and consequently, the appeal is allowed and the
order passed by the learned Single Judge dated 13-12-2006 is set aside and it is for the
Sub-Divisional Judicial Magistrate, Bhagalpur to examine the remaining witnesses from
the supplementary list given by the complainant and then to proceed according to law.
Appeal allowed.
AIR 2008 SUPREME COURT 2377 "Narayanamurthy v. State of Karnataka"
(From : Karnataka)
-2008.
Narayanamurthy v. State of Karnataka and Anr.
(A) Criminal P.C. (2 of 1974), S.386 - APPEAL - APPELLATE COURT - Appeal against
acquittal - Interference - Only if there are compelling and substantial reasons. (Para
12)
(B) Penal Code (45 of 1860), S.304B - DOWRY DEATH - WORDS AND PHRASES -
Dowry death - 'Dowry' - Gifts given at time of customary Thread Changing ceremony on
birth of girl - Not dowry. (Para 28)
(C) Penal Code (45 of 1860), S.304B - DOWRY DEATH - Dowry death - Allegation that
deceased was harassed by husband and in-laws for dowry - Mother of victim deposing
that victim had complained about quarrels over gifts given at Thread Changing ceremony
- Brother of deceased deposing that accused-husband used to quarrel with deceased on
small and petty matters and her husband and parents-in-law were demanding certain
articles - Evidence of brother and mother of victim are contradictory - Nothing to show
that demand for dowry was soon before death - Neighbours not supporting prosecution
case - Accused-husband liable to be acquitted.
Crl. Appeal No. 903 of 2000, D/-05-12-2006 (Kant), Reversed. (Paras 22, 23, 24, 27,
28, 29)
2007 AIR SCW 2189 : AIR 2007 SC (Supp) 52 : 2007 Cri LJ 2300 (Ref.) 20
2007 AIR SCW 2226 : 2007 (3) AIR Bom R 552 (Ref.) 12
@page-SC2378
AIR 1973 SC 2622 : 1973 Cri LJ 1783 (Ref.) 12
P. Vishwanatha Shetty, Sr. Advocate, Vikas Rajipura, K.B. Sandeep and E.C. Vidyasagar,
for Appellant; Sanjay R. Hegde and E.C. Vidyasagar, for Respondents.
Judgement
1. LOKESHWAR SINGH PANTA, J. :- Leave granted.
2. Appellant-Narayanamurthy (A-1) has filed this appeal against the judgment and order
dated 05-12-2006 passed by the Division Bench of the High Court of Karnataka at
Bangalore in Criminal Appeal No. 903/ 2000, whereby and whereunder appeal filed by
the State against the judgment and order dated 19-04-2000 passed by the III Additional
Sessions Judge, Bangalore City, in S.C. No.178/1995 acquitting the appellant and
Shivabhushanamma (A-3), for the offences under Sections 498-A and 304-B of the
Indian Penal Code [for short 'IPC'] and Sections 3, 4 and 6 of the Dowry Prohibition Act,
1961, has been allowed in part and A-1 has been convicted and sentenced under Section
498-A and Section 304-B, IPC.
3. In all, three accused persons, namely, Narayanamurthy (A-1), his father Kannappa (A-
2) and mother Shivabhushanamma (A-3), were tried by the learned III Additional
Sessions Judge, Bangalore City, under Sections 498-A and 304-B of IPC and Sections 3,
4 and 6 of the Dowry Prohibition Act, 1961 [for short 'DP Act']. During the pendency of
trial, A-2 died. The learned trial Judge found the evidence of prosecution witnesses
insufficient and lacking for holding A-1 and A-3 guilty of the offences alleged against
them and, accordingly, they were acquitted of the charges.
4. On appeal by the State, the Division Bench of the High Court convicted A-1 for
offences under Sections 498-A and 304-B of IPC and sentenced him to suffer rigorous
imprisonment for a period of seven years under Section 304-B, IPC, and rigorou's
imprisonment for two years under Section 498-A, IPC, and to pay a fine of Rs. 5,000/-, in
default of payment of fine, to undergo imprisonment for three months. The amount of
fine, if realised from A-1, has been ordered to be paid to Smt. Pavanamma (PW-1),
mother of the deceased Jagadeshwari. Both the sentences shall run concurrently. The
High Court, however, acquitted A-1 for offence under Sections 3, 4 and 6 of the DP Act,
1961, whereas the judgment of acquittal passed by the learned trial Judge in favour of A-
3 has been upheld.
5. Briefly stated, the case of the prosecution was that on 03-09-1989 the marriage of
Jagadeshwari, daughter of B.V.D. Mani-complainant and Pavanamma (PW-1) was
celebrated with A-1 in DRDO Community Hall, Bangalore. An amount of Rs. 4,000/- in
cash and five sovereign gold ornaments allegedly were given to A-1 in dowry at the time
of the marriage. After the marriage, Jagadeshwari started living with A-1, A-2 and A-3 in
their house at Yellamma Temple Road Cross, Nagarapalya, Bangalore. It was alleged that
after marriage, A-1 to A-3 started harassing Jagadeshwari for not bringing sufficient
dowry and were compelling her to bring more dowry from her parental house.
Jagadeshwari during her pregnancy period stayed at the house of her parents for about
five months. She gave birth to a female child. It was alleged that on the day fixed by the
parents of Jagadeshwari for performing the customary thread changing ceremony of the
child, A-1 refused to participate in the said ceremony and he made demand of a gold ring,
silver plate and silver panchapatre as dowry. Since B.V.D. Mani, father of Jagadeshwari,
was not financially sound to fulfill the demanded articles, he gifted a steel panchapatre
and steel plate to A-1. A-1 expressed his displeasure and went back to his house. After
few days, Ravichandra (PW-2) took his sister Jagadeshwari and her child to the house of
A-1, A-2 and A-3 at Nagarapalya and told them that his parents would try to meet their
demand of dowry articles within a short time, but still they continued to ill-treat and
harass Jagadeshwari.
6. On or about 7-8 days before 11-11-1990, Jagadeshwari had gone to her parents' house
and informed them that she
@page-SC2379
was being harassed and assaulted by her husband, father-in-law and mother-in-law for not
satisfying their dowry demand. The parents of Jagadeshwari persuaded her to go back to
her in-law's house and she, accordingly, returned to her husband. On 11-11-1990 around
2:00 p.m., Jagadeshwari alleged to have bolted the door of the kitchen from inside and
poured kerosene oil on her body and then set herself on fire. Chikkathayappa (PW-15)
and Mariappa (PW-16), neighbours of the accused, having noticed smoke emanating
from the kitchen of the house of the accused, broke open the door and removed dead
body of Jagadeshwari from there. A-1, at the relevant time, was not present at his house.
Parents of the deceased, on receipt of the information of the death of their daughter
through one of the relatives of PW-1, rushed to the house of the accused and on visual
inspection they noticed extensive burn injuries on the dead body of Jagadeshwari. On the
following day, i.e. on 12-11-1990 at 2:30 p.m., B.V.D Mani, father of the deceased,
lodged a complaint (Ex. P-1) with Byappanahalli Police Station, on the basis of which, a
case in Crime No. 263/1990 was registered against accused persons for an offence
punishable under Section 304-B, IPC. Thereafter, on 12-11-1990 after receipt of the
requisition, B. Nagaraj (PW-12), who at the relevant time was working as Tahsildar,
Bangalore South Taluk, visited the place of occurrence and conducted IP on the dead
body of Jagadeshwari in the presence of Panchas and her close relatives. He recorded the
statements of the parents, brother of the deceased and their neighbours who were present
at the spot. He sent original inquest papers to S.D.M., Bangalore and furnished the copy
thereof duly signed by him to the concerned police. S.E.D. D'souza (PW-13), who at the
relevant time was working as PI in COD (ADC), Bangalore, conducted the investigation
of the case and recorded the statements of B.V.D. Mani-complainant, Ravichandra (PW-
2), Rathanamma (PW-4) and Adhilakshmi (PW-6) and visited the place of occurrence
where he drew rough sketch (Ex. P-12). Post-mortem examination on the dead body of
the deceased was conducted by Dr. Thirunavakkarasu (PW-7). On 18-04-1991, the
Investigating Officer collected a copy of the post-mortem report (Ex. P-5) of the
deceased. On 22-04-1991, he recorded the statement of Anthony Mary (PW-5). On 25-
04-1991, the Investigating Officer examined and recorded the statements of PW-1,
mother of the deceased, and Kumar alias Armugam (PW-10).
7. After completion of the investigation and after receipt of the post-mortem report,
charge-sheet was filed against accused persons for the commission of the offences
punishable under Sections 498-A and 304-B of IPC and Sections 3, 4 and 6 of the DP
Act. As already stated above, Kannappa (A-2) died during the pendency of the trial. The
prosecution, in support of its case, examined as many as 16 witnesses. In their statements
recorded under Section 313 of the Code of Criminal Procedure, A-1 and his mother A-3
denied the allegations of the prosecution and pleaded false implication on suspicion and
claimed to be innocent. They, however, led no evidence in defence. After considering the
entire evidence on record, the learned trial Judge held that the prosecution has failed to
prove the alleged offences against A-1 and A-3 beyond reasonable doubt and,
accordingly, acquitted them. On appeal being preferred by the State, the High Court has
convicted and sentenced A-1 as aforesaid. Now, the appellant has filed this appeal by
special leave against the judgment of the High Court.
8. We have heard learned counsel for the parties who have taken us through the material
evidence placed on record.
9. In support of the appeal, Mr. P. Vishwanatha Shetty, learned senior counsel appearing
for A-1, submitted that the prosecution has failed to prove that A-1 at any point of time
has made demand of dowry or the deceased was subjected to cruelty or harassment or
that the harassment was for or in connection with the demand of dowry immediately
before the death of Jagadeshwari and, therefore, in the absence of any believable and
reliable evidence led by the prosecution, the conviction of A-1 by the High Court is
wholly wrong and unjustified. He contended that the interference of the High Court in the
context of reversal of acquittal is against the well-established principles laid down by this
Court in series of decisions, therefore, on this ground as well the judgment of the High
Court has to be set aside.
10. Mr. Sanjay R. Hegde, learned counsel for the respondent-State, on the other hand,
submitted that Section 304-B, IPC,
@page-SC2380
has to be read in the context of Section 113-B of the Evidence Act, 1872. The Court could
presume the death of the deceased to be dowry death and it was open to the Court to
presume further that the appellant, being husband of the deceased, was responsible for the
dowry death of the deceased. He submitted that the High Court has re-appraised the
entire evidence on record and found the appellant guilty of the charged offences and this
Court normally should not be obliged to interfere with the well-merited and well-
reasoned judgment of the High Court, which, in no circumstances, can be termed as
perverse or illegal.
11
. In the backdrop of the above-said contentions of the learned counsel for the parties,
before dealing with the evidence coming on record we may refer to a few decisions of
this Court in regard to the jurisdiction and limitations of the appellate court while
considering appeal against an order of acquittal. In the case of Tota Singh v. State of
Punjab [1987 (2) SCC 529], this Court held (SCC p. 532 para 6) : AIR 1987 SC 1083,
Para 6
"6. ... The jurisdiction of the appellate court in dealing with an appeal against an order of
acquittal is circumscribed by the limitation that no interference is to be made with the
order of acquittal unless the approach made by the lower court to the consideration of the
evidence in the case is vitiated by some manifest illegality or the conclusion recorded by
the court below is such which could not have been possibly arrived at by any court acting
reasonably and judiciously and is, therefore, liable to be characterised as perverse. Where
two views are possible on an appraisal of the evidence adduced in the case and the court
below has taken a view which is a plausible one, the appellate court cannot legally
interfere with an order of acquittal even if it is of the opinion that the view taken by the
court below on its consideration of the evidence is erroneous."
12
. In State of Rajasthan v. Raja Ram ((2003) 8 SCC 180), it was held that the golden
thread which runs through the web of administration of justice in criminal cases is that if
two views are possible on the evidence adduced in the case, one pointing to the guilt of
the accused and the other to his innocence, the view which is favourable to the accused
should be adopted. The paramount consideration of the court is to ensure that miscarriage
of justice is prevented. A miscarriage of justice, which may arise from acquittal of the
guilty, is no less than the conviction of an innocent. Further, it is held that in a case where
admissible evidence is ignored, a duty is cast upon the appellate Court to re-appreciate
the evidence in a case where the accused has been acquitted, for the purpose of
ascertaining as to whether any of the accused committed any offence or not. The principle
to be followed by the appellate Court considering the appeal against the judgment of
acquittal is to interfere only where there are compelling and substantial reasons for doing
so. If the impugned judgment is clearly unreasonable, it is a compelling reason for
interference. These aspects were again highlighted by this Court in Shivaji Sahabrao
Bobade v. State of Maharashtra [(1973) 2 SCC 793]; Ramesh Babulal Doshi v. State of
Gujarat [(1996) 9 SCC 225] and Jaswant Singh v. State of Haryana [(2000) 4 SCC 484]
and same parameters were reiterated in the latest judgment of this Court in State of Goa
v. Sanjay Thakran and Anr. ((2007) 3 SCC 755). 2003 AIR SCW 4097
AIR 1973 SC 2622
1996 AIR SCW 2438
2000 AIR SCW 1430
2007 AIR SCW 2226
13. In Surajpal Singh v. State [AIR 1952 SC 52], a two-Judge Bench observed that it was
well-established that in an appeal under Section 417 of the Cr.P.C. (old), the High Court
had full power to review the evidence upon which the order of acquittal was founded. But
it was equally well-settled that the presumption of innocence of the accusedwas further
reinforced by his acquittal by the trial court, and the findings of the trial court which had
the advantage of seeing thewitnesses and hearing their evidence could be reversed only
for very substantial and compelling reasons.
14. In Aher Raja Khima v. State of Saurashtra [AIR 1956 SC 217], the accused was
prosecuted under Sections 302 and 447, IPC. He was acquitted by the trial court but
convicted by the High Court. Dealing with the power of the High Court against an order
of acquittal, Bose, J. speaking for the majority (2:1) stated (AIR p. 220, para 1) :
"It is, in our opinion, well settled that it is not enough for the High Court to take a
different view of the evidence; there must also be substantial and compelling reasons
@page-SC2381
for holding that the trial court was wrong."
(Emphasis supplied)
15. Section 304-B, IPC, deals with 'dowry death', which reads as follows :-
"304B. Dowry death.- (i) Where the death of a woman is caused by any burns or bodily
injury or occurs otherwise than under normal circumstances within seven years of her
marriage and it is shown that soon before her death she was subjected to cruelty or
harassment by her husband or any relative of her husband for, or in connection with, any
demand for dowry, such death shall be called "dowry death", and such husband or
relative shall be deemed to have caused her death.
Explanation.- For the purpose of this sub-section, "dowry" shall have the same meaning
as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which
shall not be less than seven years but which may extend to imprisonment for life."
16. The legislature has also introduced Section 113-B of the Evidence Act alongside
insertion of Section 304-B, IPC.
"113B. Presumption as to dowry death. - When the question is whether a person has
committed the dowry death of a woman and it is shown that soon before her death such
woman had been subjected by such person to cruelty or harassment for, or in connection
with any demand for dowry, the Court shall presume that such person had caused the
dowry death.
Explanation.- For the purpose of this Section "dowry death" shall have the same meaning
as in Section 304B of the Indian Penal Code (45 of 1860)."
17. The basic ingredients to attract the provisions of Section 304-B, IPC, are as follows :-
"(1) That the death of the woman was caused by any burns or bodily injury or in some
circumstances which were not normal;
(2) such death occurs within 7 years from the date of her marriage;
(3) that the victim was subjected to cruelty or harassment by her husband or any relative
of her husband;
(4) such cruelty or harassment should be for or in connection with the demand of dowry;
and
(5) It is established that such cruelty and harassment was made soon before her death."
18
. In the case of unnatural death of a married woman as in a case of this nature, the
husband could be prosecuted under Sections 302, 304-B and 303 of the Penal Code. The
distinction as regards commission of an offence under one or the other provisions as
mentioned hereinbefore came up for consideration before a Division Bench of this Court
in Satvir Singh v. State of Punjab [(2001) 8 SCC 633] wherein it was held: (SCC p. 643,
paras 21-22) 2001 AIR SCW 3793, Paras 21 and 22
"21. Thus, there are three occasions related to dowry. One is before the marriage, second
is at the time of marriage and the third is 'at any time' after the marriage. The third
occasion may appear to be an unending period. But the crucial words are 'in connection
with the marriage of the said parties'. This means that giving or agreeing to give any
property or valuable security on any of the above three stages should have been in
connection with the marriage of the parties. There can be many other instances for
payment of money or giving property as between the spouses. For example, some
customary payments in connection with birth of a child or other ceremonies are prevalent
in different societies. Such payments are not enveloped within the ambit of 'dowry'.
Hence the dowry mentioned in Section 304-B should be any property or valuable security
given or agreed to be given in connection with the marriage.
22. It is not enough that harassment or cruelty was caused to the woman with a demand
for dowry at some time, if Section 304-B is to be invoked. But it should have happened
'soon before her death'. The said phrase, no doubt, is an elastic expression and can refer to
a period either immediately before her death or within a few days or even a few weeks
before it. But the proximity to her death is the pivot indicated by that expression. The
legislative object in providing such a radius of time by employing the words 'soon before
her death' is to emphasise the idea that her death should, in all probabilities, have been the
aftermath of such cruelty or harassment. In other words, there should be a perceptible
nexus between her death and the dowry-related harassment or cruelty inflicted on her. If
the interval which elapsed between the infliction of such harassment
@page-SC2382
or cruelty and her death is wide the court would be in a position to gauge that in all
probabilities the harassment or cruelty would not have been the immediate cause of her
death. It is hence for the court to decide, on the facts and circumstances of each case,
whether the said interval in that particular case was sufficient to snuff its cord from the
concept 'soon before her death'."
19
. In Hira Lal v. State (Govt. of NCT), Delhi [(2003) 8 SCC 80], this Court observed that:
(SCC pp. 86-87, para 9] 2003 AIR SCW 3570, Para 9
"The expression 'soon before her death' used in the substantive S. 304-B, I.P.C. and S.
113-B of the Evidence Act is present with the idea of proximity test. No definite period
has been indicated and the expression 'soon before' is not defined. A reference to
expression 'soon before' used in S. 114, Illustration (a) of the Evidence Act is relevant. It
lays down that a Court may presume that a man who is in the possession of goods 'soon
after the theft, is either the thief has received the goods knowing them to be stolen, unless
he can account for his possession.' The determination of the period which can come
within the term 'soon before' is left to be determined by the Courts, depending upon facts
and circumstances of each case. Suffice, however, to indicate that the expression 'soon
before' would normally imply that the interval should not be much between the concerned
cruelty or harassment and the death in question. There must be existence of a proximate
and live link between the effect of cruelty based on dowry demand and the concerned
death. If alleged incident of cruelty is remote in time and has become stale enough not to
disturb mental equilibrium of the woman concerned, it would be of no consequence."
20
. The same opinion was expressed by this Court in Kaliyaperumal v. State of T. N.

[(2004) 9 SCC 157] (SCC para 4); Kamesh Panjiyar Alias Kamlesh Panjiyar v. State of
Bihar [(2005) 2 SCC 388] (SCC para 10); State of A. P. v. Raj Gopal Asawa [(2004) 4
SCC 470] (SCC paras 10 and 11); Harjit Singh v. State of Punjab [(2006) 1 SCC 463] and
Biswajit Haider Alias Babu Haider and Ors. v. State of W. B. [(2008) 1 SCC 202]. 2003
2004 AIR SCW 1566, Paras 9 and 10
2005 AIR SCW 6470
2007 AIR SCW 2189
21. In the present case, we have independently analysed and scrutinized the evidence of
the material witnesses and found that there is practically no evidence to show that there
was any cruelty or harassment for or in connection with the demand of dowry.
22. PW-1, mother of the deceased, deposed that after about 11 months of the marriage,
her daughter delivered a female child and after staying in her house for about 5 months,
she sent her daughter and the child along with her son PW-2 to the house of A-1.
Jagadeshwari on 2 or 3 occasions came to her parental house and disclosed that her
husband, parents-in-law and sister-in-law had been quarrelling with her for having not
brought silver plate, cot, almirah and silver panchpathere at the time of thread changing
ceremony of the newly born child. She stated that she gave gold ring to the child of the
deceased. A complaint (Ex. P-1) was lodged by her husband B.V. D. Mani in the Police
Station in regard to the commission of the alleged offences against the husband
Narayanmurthy (A-1), father-in-law Kannappa (A-2) and mother-in-law
Shivabhushanamma (A-3) of the deceased. The complainant-father of the deceased could
not be examined as witness in the Court because by that time he had died. The testimony
of PW-1 does not support the allegations of demand for dowry by A-1 and his parents.
This witness has not deposed that her daughter committed suicide because she was
subjected to cruelty and harassment by A-1 in connection with the demand for dowry.
23. PW-2, the brother of the deceased, stated that his sister delivered a female child at
their house and he along with his sister and her child went to the house of A-1. It is his
testimony that A-1 and his sister used to quarrel with each other on some small and petty
matters and her husband and parent-in-laws were demanding an Almirah, cot, silver plate,
etc. from his parents. The testimony of this witness is totally contrary to the version of
PW-1 and secondly he has not corroborated the allegations made in complaint (Ex. P-1)
lodged at the first point of time by his late father, on the basis of which a case was
registered against A-1 and his parents in the Police Station. The evidence of this witness
does not reveal that the deceased was ever ill-treated or harassed by A-1 for not satisfying
dowry demand or
@page-SC2383
there was any demand of dowry "soon before her death" so as to drive the deceased
Jagadeshwari to take extreme steps of committing suicide.
24. Saradhamma (PW-3) - maternal aunt of deceased Jagadeshwari, deposed that after the
marriage of Jagadeshwari with A-1, she came to her house and informed that she was
being tortured by her parents-in-law as she could not give silver plate to them. This
portion of the statement of the witness is totally inconsistent with and contrary to the
versions of PWs-1 and 2, who have not deposed that after marriage Jagadeshwari had
ever complained to them that she was given beatings by her parents-in-law or was ever
maltreated or harassed by them. This witness admitted in cross-examination that she did
not make statement before the Police Officer; that before her death, Jagadeshwari came to
her house and made complaint that her husband and in-laws had harassed for having not
brought a silver plate from the house of her parents. Thus, PW-3 herself has contradicted
her statement recorded by the Investigating Officer under Section 161, Cr.P.C. therefore,
the evidence of this witness is of no help to the prosecution to hold A-1 responsible for
committing the alleged crime. The learned trial Judge has appreciated the evidence of
PWs.-1, 2 and 3 in its right perspective and concluded that the evidence of these star
witnesses has not established that the deceased Jagadeshwari was being ever harassed or
ill-treated by the accused for bringing inadequate and insufficient dowry at the time of
her marriage with A-1 or that the accused ever demanded dowry articles from the parents
of the deceased before she committed suicide. PW-1 denied having made statement
(Ex.D-1) to the Investigating Officer that her husband gave Rs.4,000/- to A-1 towards
marriage expenses. It is the categorical evidence of PWs-1 and 2 that the accused had
borne the entire expenses of the marriage and paid rent of Kalyanamantap and also
expenses of the food and other items. The complaint (Ex. P-1) does not reveal that the
accused had raised demand of dowry either in cash or in kind at the time of the marriage.
25. Dr. Thirunavakkarasu, (PW-7), Professor of Forensic Medicine, Victoria Hospital,
conducted post mortem on the dead body of Jagadeshwari on 12-11-1990 and found first,
second and third degree burns present all over the body except both feet, cuticle over the
burnt areas blackened, charred and peeled off at places, areas of redness here and there
over chest, on the front and over limbs, scalp hairs burnt and partially singed, burnt cloth
sticking over the arms, chest and abdomen. Eye brows, eye lashes, axicially and pubic
hairs were singed. Doctor deposed that the burns were ante mortem in nature to the extent
of 95% and opined that the death was due to shock as a result of burns sustained. The
record reveals that the original post mortem report was not placed before the court
besides of notices, but true copy thereof was produced and marked as Ext.P-5. It is not in
dispute that the deceased Jagadeshwari had sustained burn injuries to the extent of 95%
and as a result thereof she died.
26. Rathanamma (PW-4) and Mariappa (PW-16), the wife and husband respectively, are
the owners of the house in which the accused and his parents along with deceased
Jagadeshwari were residing. PW-4 deposed that A-1 and his wife during their stay in the
house were living happily and on two occasions, Jagadeshwari disclosed her that as she
(Jagadeshwari) was not keeping good health, therefore, she wanted to go to her parents
house and stay there for some time. She deposed that on the day of occurrence of the
incident, at about 3:00 p.m. while she was in her house, she noticed smoke emanating
from the house in occupation of A-1 and when she went there, she found the door of the
house locked from inside and after breaking open the door, she went inside and saw the
dead body of the wife of A-1 with burn injuries all over her body and the child of A-1
was also lying in the kitchen at a short distance who also sustained minor burns on her
leg. Despite cross-examination by the learned Public Prosecutor, nothing substantial in
support of the prosecution case could be elicited from her statement indicating that
Jagadeshwari committed suicide because of ill-treatment or harassment meted out to her
at the hands of her husband or his parents.
27. Anthony Mary (PW-5), Adhilakshmi (PW-6) and Kumar @ Armugam (PW-10), the
other neighbours, examined by the prosecution in support of the allegations of ill-
treatment or harassment of the deceased by A-1 or his parents for the demand of dowry,
have not supported the prosecution case. The evidence of these witnesses would show
that they have denied having made statements
@page-SC2384
before the Police that the deceased Jagadeshwari committed suicide because of being
maltreatment and harassed by A-1 or his parents.
28. It is proved on record that deceased B.V.D. Mani, father of deceased Jagadeshwari,
gifted a silver Panchapatre and silver plate to A-1 at the time of performing customary
thread changing ceremony in connection with birth of girl child and such ceremony is
prevalent in their society. Such gifts are not enveloped within the ambit of 'dowry'. It is
also to be noticed that the High Court on the same set of evidence has chosen to acquit A-
3 (the mother of A-l), whose case is no better than that of A-1. Even the unproved
allegations of ill-treatment, harassment and demand for dowry and the evidence led by
the prosecution are similar to that led against A-3. We agree with the High Court that the
evidence against mother (A-3) is insufficient and inconsistent to convict her and, in our
view, it is the same against A-1. This deficiency in the evidence proves fatal to the
prosecution case. Even otherwise, mere evidence of cruelty and harassment is not
sufficient to bring in application of Section 304B, IPC. It is to be established that 'soon
before death', deceased was subjected to cruelty or harassment by her husband for, or 'in
connection with demand for dowry'. In the afore-mentioned situation, the provisions of
Section 304B, IPC, and Section 113B of the Evidence Act could not be attracted to hold
A-1 guilty of the offence of dowry death and/or cruelty in terms of Section 498A, IPC.
The prosecution, therefore, must be held to have failed to establish any case against A-1
herein.
29. Having given our careful consideration to the above-stated submissions made by the
learned counsel for the parties and in the backdrop of the evidence discussed hereinabove
and tested in the light of the principles of law highlighted above, it must be held that the
evaluation of the findings recorded by the High Court suffer from manifest error and
improper appreciation of the evidence on record. Therefore, the judgment of the High
Court setting aside the order of acquittal of A-1 cannot be sustained.
30. For the reasons stated above, we are of the considered opinion that the evidence led
by the prosecution in regard to the involvement of A-1 in the death of Jagadeshwari is not
proved beyond reasonable doubts by the prosecution, hence, the High Court was in error
in basing conviction of A-1 on weak and slender evidence appearing against him.
31. In the result, this appeal succeeds and the same is allowed. The judgment of the High
Court dated 05-12-2006 passed in Criminal Appeal No.903/2000 is set aside and the
order of acquittal of A-1 recorded by the learned trial Judge shall stand restored. The
amount of fine imposed by the High Court upon A-1, if paid, shall be remitted to him.
Narayanamurthy shall be set at liberty by the Jail authorities if his detention is not
required in any other case.
Appeal allowed.
AIR 2008 SUPREME COURT 2384 "K. Janardhan v. United India Insurance Co. Ltd."
(From : Karnataka)*
K. Janardhan v. United India Insurance Co. Ltd. and Anr.
Workmen's Compensation Act (8 of 1923), S.2(1)(e) - WORKMEN'S COMPENSATION
- Total disablement - Tanker driver met with accident with tractor - Suffered serious
injuries and also amputation of right leg upto knee joint - Can be said to have suffered
100% disability and incapacity - Would also be disqualified from even getting driving
licence - Computation of compensation on basis of loss of 100% of his earning capacity -
Would be proper.
M. F. A. No. 484 of 2000, D/-06-10-2001 (Kant.), Reversed.
AIR 1976 SC 222, Foll. (Paras 4, 5)
AIR 1976 SC 222 : 1976 Lab IC 222 (Foll.) 3
R.S. Hegde, Chandra Prakash, Ashwani Garg and P.P. Singh, for Appellant.
* M.F.A. No. 484 of 2000, D/-06-10-2001 (Kar)
Judgement
1. HARJIT SINGH BEDI, J. :- This appeal is directed against the judgment and order
dated 6th October, 2001 of the learned Single Judge of the Karnataka High Court
whereby compensation of Rupees 2,49,576/- awarded by the Commissioner for
Workmen's Compensation has been reduced to Rs. 1,62,224.40/-. It arises
@page-SC2385
from the following facts.
2. The claimant- appellant a tanker driver, while driving his vehicle from Ayanoor
towards Shimoga met with an accident with a tractor coming from the opposite side. As a
result of the accident, the appellant suffered serious injuries and also an amputation of the
right leg up to the knee joint. He thereupon moved an application before the
Commissioner for Workmen's Compensation praying that as he was 25 years of age and
earning Rs. 3,000/- per month and had suffered 100% disability, he was entitled to a sum
of Rs. 5 lac by way of compensation. The Commissioner in his order dated 18th
November, 1999 observed that the claimant was 30 years of age and the salary as claimed
by him was on the higher side and accordingly determined the same at Rs. 2000/- per
month. The Commissioner also found that as the claimant had suffered an amputation of
his right leg up to the knee, he was said to have suffered a loss of 100% of his earning
capacity as a drive and accordingly determined the compensation payable to him at Rs.
2,49,576/- and interest @ 12% p.a. thereon from the date of the accident. An appeal was
thereafter taken to the High Court by the Insurance Company-respondent. The High
Court accepted the plea raised in appeal that as per the Schedule to the Workmen's
Compensation Act, the loss of a leg on amputation amounted to a 60% reduction in the
earning capacity and as the doctor had opined to a 65% disability, this figure was to be
accepted and accordingly reduced the compensation as already mentioned above. It is in
this circumstance, that the aggrieved claimant has come up to this court.
3
. The learned counsel for the appellant has raised only one argument during the course of
the hearing. He has submitted that the claimant - appellant being a tanker driver, the loss
of his right leg ipso facto meant a total disablement as understood in terms of Section 2(l)
(e) of the Workmen's Compensation Act and as such the appellant was entitled to have his
compensation computed on that basis. In support of this plea, the learned counsel has
placed reliance on Pratap Narain Singh Deo vs. Srinivas Sabata and Anr. (1976) 1 SCC
289. The cited case pertained to a carpenter who had suffered an amputation of his left
arm from the elbow and this court held that this amounted to a total disability as the
injury was of such a nature that the claimant had been disabled from all work which he
was capable of performing at the time of the accident. It was observed as under : 1976
AIR SCW 222
5. The expression "total disablement" has been defined in Section 2(l)(e) of the Act as
follows :
"(1) 'total disablement' means such disablement whether of a temporary or permanent
nature, as incapacitates workman for all work which he was capable of performing at the
time of the accident resulting in such disablement."
It has not been disputed before us that the injury was of such a nature as to cause
permanent disablement to the respondent, and the question for consideration is whether
the disablement incapacitated the respondent for all work which he was capable of
performing at the time of the accident. The Commissioner has examined the question and
recorded his finding as follows :
"The injured workman in this case is carpenter by profession .... By loss of the left hand
above the elbow, he has evidently been rendered unfit for the work of carpenter as the
work of carpentry cannot be done by one hand only."
This is obviously a reasonable and correct finding. Counsel for the appellant has not been
able to assail it on any ground and it does not require to be corrected in this appeal. There
is also no justification for the other argument which has been advanced with reference to
Item 3 of Part II of Schedule 1, because it was not the appellant's case before the
Commissioner that amputation of the arm was from 8" from tip of acromion to less than 4
below the tip of olecranon. A new case cannot therefore be allowed to be set up on facts
which have not been admitted or established.
4. Applying the ratio of the cited judgment to the facts of the present case we are of the
opinion that the appellant herein has also suffered a 100% disability and incapacity in
earning his keep as a tanker driver as his right leg had been amputated from the knee.
Additionally, a perusal of Sections 8 and 9 of the Motor Vehicles Act 1988 would show
that the appellant would now be disqualified from even getting a driving licence.
5. We therefore allow this appeal, set aside the judgment of the High Court and restore
that of the Commissioner but with
@page-SC2386
Appeal allowed.
AIR 2008 SUPREME COURT 2386 "Cable Corporation of India Ltd., M/s. v. Additional
Commissioner of Labour"
(From : 2005 (106) Fac LR 1011 (Bom))
M/s. Cable Corporation of India Ltd. v. Additional Commissioner of Labour and Ors.
Industrial Disputes Act (14 of 1947), S.25N(b) - INDUSTRIAL DISPUTE -
RETRENCHMENT - WORDS AND PHRASES - Retrenchment - Grant of permission -
Application for review rejected by Govt. - Reference thereafter is not maintainable -
Word 'or' cannot be read as 'and' Words and Phrases - 'Or' and 'and'.
2005 (106) Fac LR 1011 (Bom), Reversed.
A plain reading of the provision of S. 25-N (6) makes the position clear that two courses
are open to appropriate Govt. Power is conferred on the appropriate Government to either
on its own motion or on an application made, review its order granting or refusing
permission to retrench or refer the matter to the Tribunal. Whether one or the other of the
courses could be adopted depends on the fact of each case, the surrounding circumstances
and several other relevant factors. Once the appropriate Govt. rejects the review petition,
a reference to Tribunal thereafter would not be maintainable. 2005 (106) Fac LR 1011
(Bom), Reversed. (Paras 14, 15)
S. 25N (6) uses the word 'or'. It is settled that when the words of a statute are clear, plain
or unambiguous, i.e., they are reasonably susceptible to only one meaning, Courts are
bound to give effect to that meaning irrespective of consequences. (Para 17)
2005 AIR SCW 287 : AIR 2005 SC 648 (Ref.) 17, 20
2004 AIR SCW 6799 : AIR 2005 SC 294 : 2005 AIR - Jhar HCR 369 (Ref.) 17
2002 AIR SCW 333 : AIR 2002 SC 708 : 2002 Lab IC 570 : 2002 All LJ 385 (Disting.)
4, 9
(1995) 2 Cur LR 683 (Guj) 2
AIR 1979 SC 25 : 1978 Lab IC 1537 7
AIR 1976 SC 1455 : 1976 Lab IC 1012 2
(1844) 11 CI and F 85 18
T.R. Andhyarujina, Ranjit Kumar, J.P. Cama, Mukul Rohtagi, L. Nageshwar Rao, P.K.
Rele, Shyam Diwan, U.U. Lalit, Sr. Advocate, Akhil Sibal, R.N. Karanjawala, Ms. Pragya
Singh Baghel, M/s. Manu Aggarwal, Abeer Kumar, Ms. Ruby Singh Ahuja, Mrs. Manik
Karanjawala, P.C. Sen, Pallav Kumar, Ms. Binu Tamta, R.R. Kumar, Bennet D'costa,
Sanjay Singhvi, Arshad Shaikh, Bharat Sangal, Ms. R.N. Shah, Vinay Navare, Ms. Meena
Doshi and Ms. Abha R. Sharma, for the appearing parties.
Judgement
Dr. ARIJIT PASAYAT, J. :- Challenge in this appeal is to the judgment of a Division
Bench of the Bombay High Court upholding the view of a learned Single Judge that once
the review application in terms of Section 25-N(6) of the Industrial Disputes Act, 1947
(in short the 'Act') is rejected, the appropriate Government/specified authority is not
precluded from making a reference for adjudication under the said provision.
The appellant company was established in 1957 for the manufacture of high voltage
electric cables and wires. The company has manufacturing units at Borivli and Nasik. In
the present case we are concerned with the Company's unit at Borivli. The company
made an application in terms of Section 25-N(2) to the Specified Authority on 16-1-2003
to retrench 280 workmen out of 509 workmen working at its Borivli Unit. The Specified
Authority, after giving an opportunity of being heard to the company, workmen and other
interested persons, including workers unions and after conducting an inquiry, by a
reasoned order dated 29-4-2003 partly allowed the application preferred by the company
by granting permission to retrench 276 workmen out of 509 workmen on conditions
mentioned in the order. The correctness of that decision was put in issue by the workers
unions, the respondent Nos. 2 and 3 herein by filing applications under Section 25-N(6)
of the Act for review of the decision or to refer the matter for adjudication. By an order
dated 9-7-2003 the applications preferred by the Unions were rejected on the ground that
such applications
@page-SC2387
could be preferred only by workmen whereas the same have been made by the Unions.
Besides, it was observed that no new point was raised in the review proceedings which
warranted fresh examination. Accordingly, both the applications for review/reference
came to be rejected.
The aforesaid order of the Specified Authority was challenged through Writ Petition No.
1947 of 2003 by the 2nd respondent-union, which came to be partly allowed by the
learned Single Judge, vide order dated 2-8-2004. The learned Single Judge held that
finding of the Specified Authority that unions had no locus as all the aggrieved workmen
were not made parties to the application was contrary to law laid down by this Court in
Mumbai Kamgar Sabha, Bombay v. M/s. Abdulbhai Faizullabhai and Ors. (AIR 1976 SC
1455). The learned Single Judge further held that the right of review is possible only on
limited grounds and since no new points have been raised by the unions, the prayer for
review was rightly rejected. The learned Single Judge relying upon the judgment of a
Division Bench of Gujarat High Court in Rajya General Kamgar Mandal and Ors. v. Vice
President, Packart Press Div. Ambalal Sarabhai Enterprises, Baroda and Ors. (1995 II
CLR 613) further held that merely because review application is rejected, reference
cannot be said to be barred under Section 25-N(6) of the Act and, accordingly, directed
the specified authority to refer the matter for adjudication to the Industrial Tribunal in
accordance with Section 25-N(6) of the Act.
Stand of the appellant both before the learned single Judge and the Division Bench was
that once the review application is disposed of, there is no scope for further making a
reference in view of the clear language of Section 25-N(6) which provides for the
alternatives and does not empower a reference after the review petition is rejected. Both
learned single Judge and the Division Bench held to the contrary.
3. Learned counsel for the appellant submitted that both learned Single Judge and the
Division Bench lost sight of the fact that the language of the provision is very clear and
the determinative expression used is "or". It is submitted that if the view of the learned
Single Judge and the Division Bench is accepted it would mean substitution of the word
'and' for 'or'.
4
. Learned counsel for the respondents on the other hand submitted that the position is no
longer res integra and in view of the decision of this Court in Orissa Textile and Steel
Ltd. v. State of Orissa and Ors. (2002 (2) SCC 578), it is submitted, the view of learned
Single Judge and the Division Bench does not suffer from any infirmity. The reference is
intended as an additional protection. Considering the fact that though the scope for
review is limited, which is evident from the fact that unlike other reference a period of 30
days is provided. This indicates the urgency. 2002 AIR SCW 333
5. The factual position need not be referred to in detail in view of the fact that fate of this
case depends upon interpretation of Section 25-N(6).
6. Section 25-N(6) of the Act reads as follows :
The appropriate government or the specified authority may, either on its own motion or
on the application made by the employer or any workman, review its order granting or
refusing to grant permission under subsection (3) or refer the matter or, as the case may
be, cause it to be referred, to a Tribunal for adjudication.
Provided that where a reference has been made to a Tribunal under this sub-section, it
shall pass an award within a period of thirty days from the date of such reference."
7
. In Excel Wear v. Union of India and Ors. (1978 (4) SCC 224) this Court considered the
legality of Sections 25-O and 25-R as it stood then. It was held that those provisions were
violative of Section 19(1)(g) of the Constitution of India, 1950 (in short the
'Constitution'). It was held that steps under Section 25-N as it stood then cannot be read
into Section 25-O. AIR 1979 SC 25
8
. In Workmen of Meenakshi Mills Ltd. And Ors. v. Meenakshi Mills Ltd. And Anr. (1992
(3) SCC 336) the scope and ambit of Section 25-N as it stood then prior to its substitution
by Industrial Disputes (Amendment) Act, 1984 was considered. Section 25-O was recast
with effect from 21-8-1984 by Act 46 of 1982. Similarly, changes were brought in
Section 25-N by Act 49 of 1984 w.e.f. 18-8-1984. Under Section 25-N(5) finality is given
subject to sub-section (6). A plain reading of the 1992 AIR SCW 1378
@page-SC2388
provision shows that two options are available i.e. to decide itself or refer to the Tribunal.
It cannot be said that the Tribunal is an additional forum for fresh look at the matter.
9
. In Orissa Textile and Steel case (supra) the constitutional validity of Section 25-O of the
Act was under consideration. 2002 AIR SCW 333
10. Learned counsel for the respondents has placed great reliance on paragraphs 16, 17
and 18 of the judgment to contend that this Court had accepted the interpretation given by
the High Court.
11. On a close reading of the judgment it is clear that in the said case the issues presently
under consideration did not fall for consideration. What was stated in essence was that the
provisions for amended Section 25-O relates to review and reference would be in
addition to judicial review under Article 226 or Article 32 of the Constitution. The Court
was really considering the question as to whether provisions for review and reference
were in addition to judicial review. It never said that they are cumulative and not
alternative.
12. The word 'or' is normally disjunctive and 'and' is normally conjunctive. But at times
they are read as vice versa to give effect to the manifest intention of the Legislature as
disclosed from the context. As stated by Scrutton, L.J. : "You do sometimes read 'or' as
'and' in a statute. But you do not do it unless you are obliged because 'or' does not
generally mean 'and' and 'and' does not generally mean 'or'. And as pointed out by Lord
Halsbury the reading of 'or' as 'and' is not to be resorted to, "unless some other part of the
same statute or the clear intention of it required that to be done". But if the literal reading
of the words produces an unintelligible or absurd result 'and' may be read for 'or' and 'or'
for 'and' even though the result of so modifying the words is less favourable to the subject
provided that the intention of the Legislature is otherwise quite clear. Conversely if
reading of 'and' as 'or' produces grammatical distortion and makes no sense of the portion
following 'and', 'or' cannot be read in place of 'and'. The alternatives joined by 'or' need
not always be mutually exclusive.
13
. In Fakir Mohd. (dead) by LRs. v. Sita Ram (2002 (1) SCC 741) it was held that the
word 'or' is normally disjunctive. The use of the word 'or' in a statute manifests the
legislative intent of the alternatives prescribed under law. 2001 AIR SCW 5041
14. Had the Legislature intended that the reference could be made after the Government
or the Specified Authority deals with the review power, it would have said so specifically
by specific words. It could have provided for a direct reference. The parameters of review
are different from a reference.
15. A plain reading of the provision makes the position clear that two courses are open.
Power is conferred on the appropriate Government to either on its own motion or on an
application made, review its order or refer the matter to the Tribunal. Whether one or the
other of the courses could be adopted depends on the fact of each case, the surrounding
circumstances and several other relevant factors.
16. Under sub-section (6) of Section 25-N it is open to the appropriate Government or the
Specified Authority to review its order granting or refusing to grant permission under
sub-section (3).
17
. When the words of a statute are clear, plain or unambiguous, i.e. they are reasonably
susceptible to only one meaning, Courts are bound to give effect to that meaning
irrespective of consequences. [See State of Jharkhand v. Govind Singh (AIR 2005 SC
294), Nathi Devi v. Radha Devi Gupta (2005 (2) SCC 271)]. 2004 AIR SCW 6799
2005 AIR SCW 287
18. In Sussex Peerage case (1844) 11 CIandF 85, at page 143, Tindal C.J. observed as
follows :
"If the words of the statute are in themselves precise and unambiguous, then no more can
be necessary than to expound those words in their natural and ordinary sense. The words
themselves do alone in such cases best declare the intent of the lawgiver."
19. When a language is plain and unambiguous and admits of only one meaning no
question of construction of a statute arises, for the Act speaks for itself.
20. As observed in Nathi Devi's case (supra) if the words used are capable of one
construction, then it would not be open to the Courts to adopt any other hypothetical
construction on the ground that such construction is more consistent with the alleged
object and policy of the Act. The spirit
@page-SC2389
of the law may well be an elusive and unsafe guide and the supposed spirit can certainly
be not given effect to in opposition to the plain language of the sections of the Act.
21. In view of analysis made above, the inevitable result is that the appeal deserves to be
allowed which we direct.
Appeal allowed.
AIR 2008 SUPREME COURT 2389 "Dalbir Singh v. State of Haryana"
-2008.
Dalbir Singh v. State of Haryana.
(A)Evidence Act (1 of 1872), S.9 - IDENTIFICATION PARADE - MURDER -
EVIDENCE - Identification of Accused - Murder case - Appellant and other accused
allegedly assaulted deceased in night - Appellant was closely related to witness, being his
grandson - In dark night, ocular identification may be difficult - But identification is
possible from manner of speech, gait and voice - Evidence of witness that he recognised
appellant from his voice though he did not recognise other assailants cannot be, therefore,
discarded.
AIR 1981 SC 2072, Relied on. (Paras 6, 7)
(B)Penal Code (45 of 1860), S.300 - MURDER - EVIDENCE - MAXIMS - Murder -
Appreciation of evidence - Appellant and his associates allegedly assaulted deceased -
Evidence found to be deficient to prove guilt of co-accused persons - Court can separate
grain from chaff and convict appellant notwithstanding acquittal of co-accused - Maxim
'falsus in uno falsus in omnibus' has no application.
AIR 1954 SC 15; AIR 1975 SC 1962 and AIR 1981 SC 1390, Relied on. (Para 9)
(C)Evidence Act (1 of 1872), S.3 - EVIDENCE - MAXIMS - Falsus in uno falsus in
omnibus i.e., false in one thing, false in every thing - Has not received general acceptance
in different jurisdiction in India - Nor has this maxim come to occupy status of rule of
law.
The maxim "falsus in uno falsus in omnibus" (false in one thing, false in everything) has
not received general acceptance in different Jurisdiction in India, nor has this maxim
come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts
to, is that in such cases testimony may be disregarded, and not that it must be
disregarded. The doctrine merely involves the question of weight of evidence which a
Court may apply in a given set of circumstances, but it is not what may be called "a
mandatory rule of evidence". The doctrine is dangerous one specially in India for if a
whole body of the testimony were to be rejected, because witness was evidently speaking
an untruth in some aspect, it is to be feared that administration of criminal justice would
come to a dead-stop. The witnesses just cannot help in giving embroidery to a story,
however, true in the main. Therefore, it has to be appraised in each case as to what extent
the evidence is worthy of acceptance, and merely because in some respects the Court
considers the same to be insufficient for placing reliance on the testimony of a witness, it
does not necessarily follow as a matter of law that it must be disregarded in all respects as
well. The evidence has to be shifted with care. The aforesaid dictum is not a sound rule
for the reason that one hardly comes across a witness whose evidence does not contain a
grain of untruth or at any rate exaggeration, embroideries or embellishment. AIR 1957
SC 366; AIR 1956 SC 460; AIR 1972 SC 2020 and AIR 1965 SC 277, Relied on. (Para
10)
AIR 1965 SC 277 : 1965 (1) Cri LJ 256 (Rel. on) 10
B.S. Jain, Ajay Vir Singh Jain. Manish
@page-SC2390
Raghav and Dr. (Mrs.) Vipin Gupta, for Appellant; Rajesh Ranjan, Rajeev Gaur 'Naseem',
T.V. George and Ms. Naresh Bakshi, for Respondent.
* Cri. Appeal No. 843 of 1997, D/-28-04-2007 (P and H)
Judgement
2. Challenge in this appeal is to the judgment of the Division Bench of the Punjab and
Haryana High Court dismissing the appeal filed by the appellant who was convicted for
offence punishable under Section 302 of the Indian Penal Code, 1860 (in short the 'IPC'),
and Section 148 of IPC. He was sentenced to undergo RI for life and one year
respectively for the two offences.
3. This is one of the cases of a nature which are increasing by leaps and bounds i.e.
commission of offence for property. In the instant case the key player is the appellant
Dalbir (hereinafter referred to as the 'accused') who killed his uncle Ram Pratap
(hereinafter referred to as the 'deceased') and the key witness is Surja Ram (PW8), the
grandfather of the accused.
4. Flittering out unnecessary details the case of the prosecution is as follows :
On 17-5-1995 on receipt of a ruqa from the doctor, CHC Rania, regarding admission of
injured Ram Partap (since deceased), Sub Inspector Ram Partap, visited the hospital
where the doctor produced before him a ruqa regarding death of Ram Partap, Surja Ram,
complainant, father of the deceased, was found present there near the dead body. He
made a statement to the effect that he had two sons, namely Banwari and Ram Partap.
Banwari had two sons, namely, Dalbir the accused and Om Parkash. Banwari had already
died two years ago. Ram Partap used to reside with him and they also owned landed
property in village Mameran, where family of Ram Partap used to reside and cultivate the
land. His deceased son Ram Partap had come to him three-four days earlier for thrashing
the wheat and when they were thrashing the wheat, at about 9.30 p.m. after stopping the
operation of thrasher, Ram Partap went to nearby canal for taking a bath. After some
time, a jeep came and stopped near the bank of the canal and in the meanwhile, five-six
persons came down from the jeep and went near Ram Partap. Accused Dalbir Singh
raised a lalkara to Ram Partap deceased that he should be taught a lesson for cultivating
the land of his grand father. Complainant recognized the voice of Dalbir and rushed
towards them and saw that Dalbir had a tangli in his hands, whereas other persons were
armed with lathi, jallis and gandasis and were causing injuries on his son Ram Partap. He
raised an alarm as to why they were attacking Ram Partap and on seeing him, all the
assailants ran away with their respective weapons in the said jeep and he did not know
the names of the remaining persons. He further disclosed that the relationship between
them and Dalbir was strained, as he wanted to take share of his land. His son became
unconscious due to the injuries suffered by him. He went to village for making
arrangement of a jeep of one Sukh Ram at about 12.00 during night he shifted Ram
Partap to CHC Rania for medical treatment, where doctor treated Ram Partap and during
treatment he succumbed to his injuries. Dalbir along with his companions caused injuries
to his son without any right. On the basis of this statement, Ex. PD/1 and an endorsement
made by Sub Inspector Amar Singh thereon, a case was registered against the accused.
The Investigating Officer started the investigation, recorded statements of the witnesses
and thereafter sent the dead body for autopsy.
Dr. Dharambir Singh conducted post mortem examination on the dead body of Ram
Partap the deceased and found ten injuries on his person. He disclosed the cause of death
to be due to shock and haemorrhage as a result of injuries to vital organs, which were
ante mortem in nature and sufficient to cause death in the ordinary course of nature. Sub
Inspector Amar Singh went to the place of occurrence and lifted blood stained earth from
there and sealed the same in a parcel and took it into possession after preparing recovery
memo of the same. He also recorded the statements of Kamla, the widow and Durga, the
daughter of Ram Partap deceased on the same day. From their statements, it was revealed
that in the evening on the previous day at about 7 P.M., they were going to the fields to
serve meals to Ram Partap Surja and others, who were thrashing the wheat in the fields.
When they passed near the house of Dalbir accused, they saw a jeep bearing No.HR-44A
0856 standing in his courtyard and there Pala Jani, Sube Singh, Krishan, Kuldeep and
Parkash, all accused, were talking to each other. They were known to these witnesses.
Two persons were sitting in the jeep and
@page-SC2391
when these witnesses were returning from their fields towards home and reached near the
culvert of canal, the same jeep came near them and stopped. From the side of the jeep,
Dalbir asked them about the whereabouts of Ram Partap, and they told him that he was in
the fields. Then Dalbir asked Madan to take the vehicle ahead. In the meantime, one
person got down the jeep for urinating and when the jeep started Sube Singh called him
by the name of Devi Lal to come immediately and then all of them occupied their seats in
the jeep and went. They had seen all the persons in the house of Dalbir in the evening and
these witnesses came to know that during night hours Dalbir and others had caused
injuries to Ram Partap, who died later on. After completion of necessary formalities,
accused were sent up for trial.
Accused were charge sheeted for offences punishable under Sections 302 and 148 read
with Section 149 IPC to which they did not plead guilty and claimed trial.
The Trial Court placed reliance on the evidence led, more particularly, PW8 and directed
conviction and imposed sentences as aforenoted so far as appellant is concerned and
directed acquittal of co-accused. In appeal, before the High Court the main stand taken
was that PW8 had undergone eye operation about two years prior to the date of
occurrence and in dark night there was no scope for identification. The High Court did
not accept the stand and held that identification was possible, particularly, when the
accused was the grandson of the witness. The appeal was dismissed by the impugned
judgment.
5. In support of the appeal learned counsel for the appellant submitted that all other
accused persons have been acquitted except the appellant. The Trial Court and the High
Court should not have accepted the statement of Surja Ram (PW8) that he identified the
accused from his voice in a dark night which was probable. Learned counsel for the State
on the other hand supported the judgment.
6. The first point relates to the acquittal of the co-accused and its effect on prosecution
version. Learned Additional Sessions Judge and the High Court have noted the fact that
the only person named was PW8 who was the grandson of the present appellant. He did
not identify the co-accused person i.e. the other assailants. In the instant proceedings
PW8 had mentioned about 5-6 persons, but only identified by appellant as one of the
assailants. PW8 disclosed before the Court that the deceased went for taking a bath in the
canal and after 10-15 minutes a jeep came on the bank of the canal. He did not see the
other occupants of the jeep and only identified the appellant who raised the lalkara to
teach lesson to the deceased for cultivating the land of his grandfather. The accused
persons carne with the respected weapons and started inflicting injuries on the person of
the deceased. PW8 had categorically stated that he did not recognize other assailants, and
though he knew other assailants, he did not know their names and, therefore, had not
given their names. He had categorically also stated that from the voice of accused who
raised the lalkara he recognized the assailant as his grandson. The stand of the appellant
that in dark night recognition would not have been possible from voice is clearly
untenable. In a dark night ocular identification may be difficult in some cases but if a
person is acquainted and closely related to another, from the manner of speech, gait and
voice identification is possible.
7. In Anwar Hussain v. The State of U.P. and Anr. (AIR 1981 SC 2073) it was observed
that even if there is insufficient light, a witness can identify a person, with whom he is
fairly acquainted or is in intimate terms, from his voice, gaits, features etc. Therefore,
there is nothing to discard the evidence of PW8 so far as his claim to have recognized the
appellant is concerned.
8. It is emphatically urged that the evidence is partisan, lacks cogency and credibility.
Acquittal of other accused persons is the foundation for such plea.
9. Coming to applicability of the principle of falsus in uno falsus in omnibus, even if
major portion of evidence is found to be deficient, residue is sufficient to prove guilt of
an accused, notwithstanding acquittal of large number of other co-accused persons, his
conviction can be maintained. However, where large number of other persons are
accused, the Court has to carefully screen the evidence. It is the duty of Court to separate
grain from chaff. Where chaff can be separated from grain, it would be open to the Court
to convict an accused notwithstanding the fact that evidence has been found to be
deficient to prove guilt of other accused persons. Falsity of particular material witness or
material particular
@page-SC2392
would not ruin it from the beginning to end. The maxim "falsus in uno falsus in omnibus"
has no application in India and the witnesses cannot be branded as liar.
10
. The maxim "falsus in uno falsus in omnibus" (false in one thing/false in everything) has
not received general acceptance in different jurisdiction in India, nor has this maxim
come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts
to, is that in such cases testimony may be disregarded, and not that it must be
disregarded. The doctrine merely involves the question of weight of evidence which a
Court may apply in a given set of circumstances, but it is not what may be called "a
mandatory rule of evidence". (See Nisar Alli v. The State of Uttar Pradesh, AIR 1957 SC
366). Merely because some of the accused persons have been acquitted, though evidence
against all of them, so far as direct testimony went, was the same does not lead as a
necessary corollary that those who have been convicted must also be acquitted. It is
always open to a Court to differentiate the accused who had been acquitted from those
who were convicted. (See Gurucharan Singh and another v. State of Punjab, AIR 1956
SC 460). The doctrine is a dangerous one specially in India for if a whole body of the
testimony were to be rejected, because witness was evidently speaking an untruth in some
aspect, it is to be feared that administration of criminal justice would come to a dead-
stop. The witnesses just cannot help in giving embroidery to a story, however, true in the
main. Therefore, it has to be appraised in each case as to what extent the evidence is
worthy of acceptance, and merely because in some respects the Court considers the same
to be insufficient for placing reliance on the testimony of a witness, it does not
necessarily follow as a matter of law that it must be disregarded in all respects as well.
The evidence has to be shifted with care. The aforesaid dictum is not a sound rule for the
reason that one hardly comes across a witness whose evidence does not contain a grain of
untruth or at any rate exaggeration, embroideries or embellishment. (See Sahrab s/s Belli
Nayata and another v. The State of Madhya Pradesh, (1972) 3 SCC 751, and Umar Ahir
and others v. The State of Bihar, AIR 1965 SC 277). An attempt has to be made to in
terms of felicitous metaphor, separate grain from the chaff, truth from falsehood. Where it
is not feasible to separate truth from falsehood, because grain and chaff are inextricably
mixed up, and in the process of separation an absolutely new case has to be reconstructed
by divorcing essential details presented by the prosecution completely from the context
and the background against which they are made, the only available course to be made is
discard the evidence in toto. (See Zwieolae Ariel v. State of Madhya Pradesh, AIR 1954
SC 15; and Balaka Singh and others v. The State of Punjab, AIR 1975 SC 1962). As
observed by this Court in State of Rajasthan v. Smt. Kalki and another, AIR 1981 SC
1390, normal discrepancies in evidence are those which are due to normal errors of
observations, normal errors of memory due to lapse of time, due to mental disposition
such as shock and horror at the time of occurrence and these are always there however
honest and truthful a witness may be. Material discrepancies are those which are not
normal and not expected of a normal person. Courts have to label the category to which a
discrepancy may be cateogrised. While normal discrepancies do not corrode the
credibility of a party's case, material discrepancies do so. AIR 1972 SCW 2020
11. The appeal is without merit, deserves dismissal which we direct.

Appeal dismissed.
AIR 2008 SUPREME COURT 2392 "Fatma Bibi Ahmed Patel v. State of Gujarat"
(From : 2007 (1) Guj LR 271)
-2008.
Fatma Bibi Ahmed Patel v. State of Gujarat and Anr.
(A) Penal Code (45 of 1860), S.4 - Criminal P.C. (2 of 1974), S.188 - OFFENCE
COMMITTED OUTSIDE INDIA - Order taking cognizance - Accused not citizen of
India - Offence committed outside India (Kuwait) - Order illegal in view of S.4 of Penal
Code and S.188 of Criminal P. C.
2007 (1) Guj LR 271, Reversed. (Para 5)
(B) Criminal P.C. (2 of 1974), S.188 - OFFENCE COMMITTED OUTSIDE INDIA -
DISMISSAL - Application by accused that complaint petition filed without obtaining
requisite sanction u/S.188 was bad in law as offence was committed outside India and
@page-SC2393
she was not citizen of India - Dismissal - Fresh petition raising contention that order
taking cognizance was bad in law - Cannot be dismissed on ground of res judicata -
Principles analogous to res judicata have no application with regard to criminal cases -
Where jurisdictional issue is raised, save and except for certain categories of cases, same
my be permitted to be raised at any stage of proceedings.
Civil P.C. (5 of 1908), S.11.
2007 (1) Guj LR 271, Reversed. (Para 5)
2005 AIR SCW 4645 : AIR 2005 SC 3708 (Foll., Pnt. B) 5
1993 AIR SCW 1866 : AIR 1993 SC 1637 : 1993 Cri LJ 2516 (Ref., Pnt. A) 5
AIR 1979 SC 193 : 1978 Lab IC 1672 (Foll., Pnt. B) 5
AIR 1955 SC 36 : 1955 Cri LJ 152 (Foll., Pnt. A) 4, 5
1901 AC 495 : 85 LT 289 (Ref., Pnt. A) 5
(1868) LR 3 HL 306 (Ref., Pnt. A) 5
(1832) 4 B and 345 : 110 ER 485 (Ref., Pnt. A) 5
Sudershan Rajan, J. Verghese (Ms. Jyoti Mendiratta), for Appellant; Pawn Kumar Bahl,
Raj Pal Singh, Anil Chandulal Chrishan, Goodwill Indeever, Ms. Pinky, Sangeeta Singh,
Ms. Jasal, Ms. Hemantika Wahi, for Respondents.
Judgement
2. Interpretation of Section 4 of the Indian Penal Code and Section 188 of the Code of
Criminal Procedure fall for our consideration in this appeal which arises out of a
judgment and order dated 12-04-2006 passed by the High Court of Gujarat at Ahmedabad
in Criminal Revision Application No. 358 of 2005 dismissing the Criminal Revision filed
by the appellant herein.
3. Son of the appellant Hanif Ahmed Patel was married to the complainant - respondent
on 22-4-2002. Appellant indisputably is a citizen of Mauritius. Her son and daughter-in-
law at all material times were residing at Kuwait.
A Complaint Petition, however, was filed before the Chief Judicial Magistrate, Navsari
by the said respondent alleging physical and mental torture by her husband (the first
accused). Allegations primarily against the appellant therein were that the first accused
used to consult her and she used to instigate him.
As the couple was residing at Kuwait, indisputably the entire cause of action arose at
Kuwait. The learned Chief Judicial Magistrate, Navsari, however, took cognizance of the
aforesaid offences and directed issuance of summons to the appellant by an order dated
30-5-2003.
An application was filed by her stating that the complaint petition filed without obtaining
the requisite sanction under Section 188 of the Code of Criminal Procedure was bad in
law. The same was dismissed.
A joint application with her son was thereafter filed by the appellant for quashing of the
entire complaint petition which was withdrawn.
Appellant, however, filed a fresh application on or about 6-12-2004 raising a contention
that as she is a citizen of Mauritius and as the entire cause of action took place at Kuwait,
the order taking cognizance is bad in law. Whereas the learned trial judge rejected the
said plea, the Revisional Court on a revision application filed by the appellant
thereagainst, allowed the same.
Respondent No. 2 moved the High Court of Gujarat aggrieved thereby which by reason
of the impugned order has been allowed.
4. Mr. Sudarshan Rajan, learned counsel appearing on behalf of the appellant, submitted
that having regard to the provisions contained in Section 4 of the Indian Penal Code and
Section 188 of the Code of Criminal Procedure, the order taking cognizance as against
the appellant was bad in law. Reliance in this behalf has been placed on Central Bank of
India Ltd. vs. Ram Narain [AIR 1955 SC 36].
5. Mr. Pawan Kumar Bahl, learned counsel appearing on behalf of the respondent, on the
other hand, urged that having regard to the fact that the appellant having filed an
application for quashing earlier on the ground of non-compliance of the provisions of
Section 188 of the Code of Criminal Procedure as also having filed a quashing
application which stood withdrawn, the said application was not maintainable.
Offences said to have been committed by the appellant in the complaint petition were
under Sections 498A and 506(2) of the Indian Penal Code. Provisions of the Indian Penal
Code and the Code of Criminal
@page-SC2394
Procedure, would, therefore, indisputably apply.
Section 4 of the Indian Penal Code reads as under :-
"4. Extension of Code to extra-territorial offences. - The provisions of this Code apply
also to any offence committed by -
(1) any citizen of India in any place without and beyond India;
(2) any person on any ship or aircraft registered in India wherever it may be.
Explanation. - In this section the word "offence" includes every act committed outside
India which, if committed in India, would be punishable under this Code.
Illustration
A, who is a citizen of India, commits a murder in Uganda. He can be tried and convicted
of murder in any place in India in which he may be found." Section 188 of the Code of
Criminal Procedure reads as under :
"Section 188 - Offence committed outside India. - When an offence is committed outside
India - (a) by a citizen of India, whether on the high seas or elsewhere; or
(b) by a person, not being such citizen, on any ship or aircraft registered in India, he may
be dealt with in respect of such offence as if it had been committed at any place within
India at which he may be found :
Provided that, notwithstanding anything in any of the preceding sections of this Chapter,
no such offence shall be inquired into or tried in India except with the previous sanction
of the Central Government."
In our constitutional scheme, all laws made by Parliament primarily are applicable only
within the country. Ordinarily, therefore, all persons who commit a crime in India can be
tried in any place where the offence is committed. Section 41 of the Indian Penal Code,
however, extends the scope of applicability of the territorial jurisdiction of the court of
India to try a case, the cause of action of which took place outside the geographical
limits. Parliament indisputably may enact a legislation having extra territorial application
but the same must be applied subject to fulfilment of the requirements contained therein.
There are materials before us to show that the appellant is a citizen of Mauritius. She has
been visiting India on Visas issued by India. She, thus, indisputably is not a citizen of
India. She might have been staying in India with her relatives as has been contended by
the complainant, but it has not been denied and disputed that she is not a citizen of India.
If she is not a citizen of India having regard to the provisions contained in Section 4 of
the Indian Penal Code and Section 188 of the Code of Criminal Procedure, the order
taking cognizance must be held to be illegal.
In terms of Section 4 of the Indian Penal Code, the Indian courts will have jurisdiction to
try an accused only if the accused is a citizen of India even if the offence was committed
outside India or by any person on any ship or aircraft registered in India wherever it may
be. Neither of the aforementioned contingencies is attracted in the instant case. Section
188 of the Code of Criminal Procedure also deals with offences committed outside India.
Clause (a) brings within its sweep a citizen of India, whether on the high seas or
elsewhere, or by a person, although not citizen of India when the offence is committed on
any ship or aircraft registered in India.
In view of the fact that the offence is said to have been committed in Kuwait, the
provisions of the Indian Penal Code or the Code of Criminal Procedure cannot be said to
have any application.
This aspect of the matter has been considered by this Court in Central Bank of India Ltd.
vs. Ram Narain [supra], wherein it was clearly held : AIR 1955 SC 36, Para 5
"The learned Attorney-General contended that Ram Narain was at the time when sanction
for his prosecution was given by the East Punjab Government, a citizen of India residing
in Hodel and that being so, he could be tried in India being a citizen of India at that
moment, and having committed offences outside India, and that the provisions of Section
4, I.P.C. and Section 188, Cr. P.C. were fully attracted to the case.
In our opinion, this contention is not well founded. The language of the sections plainly
means that if at the time of the commission of the offence, the person committing it is a
citizen of India, then even if the offence is committed outside India he is subject to the
jurisdiction of the courts in India. The rule enunciated in the sections is based on the
principle that qua citizens the jurisdiction of courts is not lost by reason of the venue
@page-SC2395
of the offence. If, however, at the time of the commission of the offence the accused
person is not a citizen of India, then the provisions of these sections have no application
whatsoever.
A foreigner was not liable to be dealt with in British India for an offence committed and
completed outside British India under the provisions of the sections as they stood before
the adaptations made in them after the partition of India. Illustration (a) to Section 4,
I.P.C. delimits the scope of the section. It indicates the extent and the ambit of this
section. It runs as follows :
"(a) A, a coolie, who is a Native Indian subject commits a murder in Uganda. He can be
tried and convicted of murder in any place in British India in which he may be found."
In the illustration, if (A) was not a Native Indian subject at the time of the commission of
the murder the provisions of Section 4, I.P.C. could not apply to his case. The
circumstance that after the commission of the offence a person becomes domiciled in
another country, or acquires citizenship of that State, cannot confer jurisdiction on the
courts of that territory retrospectively for trying offences committed and completed at a
time when that person was neither the national of that country nor was he domiciled
there."
Strong reliance has been placed by the learned counsel appearing on behalf of the
respondents on Ajay Agarwal vs. Union of India [AIR 1993 SC 1637). The question
which arose for consideration therein was that as to whether a sanction of Central
Government for prosecution in terms of Section 188 of the Code of Criminal Procedure
was necessary. The said question was answered in the negative stating : 1993 AIR
SCW 1866
"8. The question is whether prior sanction of the Central Govt. is necessary for the
offence of conspiracy under proviso to Section 188 of the Code to take cognizance of an
offence punishable under Section 120-B etc. I.P.C. or to proceed with trial. In Chapter
VA, conspiracy was brought on statute by the Amendment Act, 1913 (8 of 1913). Section
120-A of the I.P.C. defines 'conspiracy' to mean that when two or more persons agree to
do, or cause to be done an illegal act, or an act which is not illegal by illegal means, such
an agreement is designated as "criminal conspiracy." No agreement except an agreement
to commit an offence shall amount to a criminal conspiracy, unless some act besides the
agreement is done by one or more parties to such agreement in furtherance thereof.
Section 120-B of the I.P.C. prescribes punishment for criminal conspiracy. It is not
necessary that each conspirator must know all the details of the scheme nor be a
participant at every stage. It is necessary that they should agree for design or object of the
conspiracy. Conspiracy is conceived as having three elements : (1) agreement (2)
between two or more persons by whom the agreement is effected; and (3) a criminal
object, which may be either the ultimate aim of the agreement, or may constitute the
means, or one of the means by which that aim is to be accomplished. It is immaterial
whether this is found in the ultimate objects. The common law definition of 'criminal
conspiracy' was stated first by Lord Denman in Jones' case (1832 (4) B and AD 345) that
an indictment for conspiracy must "charge a conspiracy to do an unlawful act by unlawful
means" and was elaborated by Willies, J. on behalf of the Judges while referring the
question to the House of Lords in Mulcahy v. Reg (1868) LR 3 HL 306 and the House of
Lords in unanimous decision reiterated in Quinn v. Leathern 1901 AC 495 at 528 as
under :
"A conspiracy consists not merely in the intention of two or more, but in the agreement of
two or more to do an unlawful act, or to do a lawful act by unlawful means. So long as
such a design rests in intention only it is not indictable. When two agree to carry it into
effect, the very plot is an act in itself, and the act of each of the parties, promise against
promise, actus contra actum, capable of being enforced, if lawful, punishable of for a
criminal object or for the use of criminal means.
(Emphasis supplied)"
The court therein was concerned with a charge of conspiracy. It was in the
aforementioned context opined that no sanction would be required.
R. M. Sahai, J. in his concurring judgment stated :
"Language of the section is plain and simple. It operates where an offence is committed
by a citizen of India outside the country. Requirements are, therefore, one - commission
of an offence; second - by an
@page-SC2396
Indian citizen; and third - that it should have been committed outside the country. Out of
the three there is no dispute that the appellant is an Indian citizen. But so far the other two
are that the conspiracy to forge and cheat the bank was hatched by the appellant and
others in India. Whether it was so or not, cannot be gone into at this stage."
The learned counsel submitted that as in the earlier application, the appellant merely
complained of the absence of any sanction, this application should not be entertained. We
do not agree. Principles analogous to res judicata have no application with regard to
criminal cases. An accused has a fundamental right in terms of Article 21 of the
Constitution of India to be proceeded against only in accordance with law. The law which
would apply in India subject of course to the provisions of Section 4 of the Indian Penal
Code and Section 188 of the Code of Criminal Procedure is that the offence must be
committed within the territory of India. If admittedly, the offence has not been committed
within the territorial limits of India, the provisions of the Indian Penal Code as also the
Code of Criminal Procedure would not apply. If the provisions of said Acts have no
application as against the appellant, the order taking cognizance must be held to be
wholly illegal and without jurisdiction. The jurisdictional issue has been raised by the
appellant herein. Only because on a mistaken legal advise, another application was filed,
which was dismissed, the same by itself, in our opinion, will not come in the way of the
appellant to file an appropriate application before the High Court particularly when by
reason thereof her fundamental right has been infringed.
This Court, in a matter like the present one where the jurisdictional issue goes to the root
of the matter, would not allow injustice to be done to a party. The entire proceedings
having been initiated illegally and without jurisdiction, all actions taken by the court were
without jurisdiction, and thus are nullities. In such a case even the principle of res
judicata (wherever applicable) would not apply.
In Chief Justice of Andhra Pradesh And Others v. L. V. A. Dixitulu And Others [AIR
1979 SC 193 at 198], this Court held :
"If the argument holds good, it will make the decision of the Tribunal as having been
given by an authority suffering from inherent lack of jurisdiction. Such a decision cannot
be sustained merely by the doctrine of res judicata or estoppel as urged in this case."
[See also Union of India v. Pramod Gupta (D) by LRs and Ors., (2005) 12 SCC 1]
2005 AIR SCW 4645
Where a jurisdictional issue is raised, save and except for certain categories of the cases,
the same may be permitted to be raised at any stage of the proceedings.
6. For the reasons aforementioned; the impugned judgment cannot be sustained. It is set
aside accordingly. The appeal is allowed with costs. Counsel's fee assessed at Rs.25,000/-
(Rupees twenty five thousand only).
Appeal allowed.
AIR 2008 SUPREME COURT 2396 "Rajesh Kumar v. Yudhvir Singh"
(From : Delhi)*
-2008.
Rajesh Kumar alias Raju v. Yudhvir Singh and Anr.
(A) Motor Vehicles Act (59 of 1988), S.163A, S.166 - MOTOR VEHICLES -
WORKMEN'S COMPENSATION - Reference to Workmen's Compensation Act by
incorporation - Was only for purpose of Sub-s.(1) of S.163A - It was not meant to apply
in case falling u/S.166. (Para 8)
(B) Motor Vehicles Act (59 of 1988), S.166, S.163A - PLEA - WORKMEN'S
COMPENSATION - APPLICABILITY OF AN ACT - APPEAL - Claim for
compensation - Filed u/S.166 - Ground that claimant suffered 60% total disability - Plea
as to applicability of the Workmen's Compensation Act - Not raised before Tribunal or
High Court - Cannot be permitted to be raised for first time before Supreme Court.
Gaurav Goel, Amit Sharma, Mahesh Agarwal and E.C. Agrawala, for Appellant; S.S.
Yadav, S.L. Gupta and Goodwill Indeevar, for Respondents.
* MAC Appeal No. 886 of 2005, D/-18-01-2007 (Delhi)
Judgement
S. B. SINHA, J. : - Leave granted.
2. Claimant before the Motor Accident
@page-SC2397
Claims Tribunal is the appellant before us. On 11-8-2001, he was driving a two wheeler
vehicle being a scooter. It was hit by a bus bearing Registration No.DL-1P-A-0746. He
was a motor mechanic.
In July 2003, he filed a claim in terms of Section 166 of the Motor Vehicles Act, 1988
(for short, 'the Act') claiming a sum of Rs. 10,00,000/- along with interest at the rate of
18% per annum. Allegedly, he suffered 60% total disability. His claim was based on the
premise that he was earning a sum of Rs.4,500/- per month.
3. Before the Tribunal, the appellant relied upon a certificate purported to have been
issued by the Civil Surgeon, Faridabad on 11-11-2003 stating that he had suffered 60%
disability. The learned Motor Vehicle Accident Claims Tribunal awarded a sum of Rs.
1,68,941 by way of compensation opining that his income was Rs. 3,000/- per month and
he was entitled to compensation upon taking 30% of his income at the rate of Rs.900/-
per month being a total sum of Rs.20,000 besides the amount of compensation towards
pain and sufferings and a sum of Rs.5,000/- as general damages including conveyance,
special diet etc. An interest at the rate of 7% per annum was also awarded.
4. He preferred an appeal thereagainst. The High Court awarded a further sum of
Rs.84,800/-, opining :
"Minimum wages notified on 1-1-1980 for skilled workers was Rs.320/- per month. It
rose to Rs.1043/- as on 1-1-1990. It rose to Rs.3,016/- as on 1-1-2001. The trend shows
that minimum wages double every 10 years.
Considering the age of the deceased being 34 years, it would be safe to assume that by
the time he would turn 60, his income would have doubled. I accordingly treat the
average monthly income of the deceased at Rs.4,500/- Applying the disability certificate,
Ex.PW 2/2, being 30% disability, loss on account of disability comes to Rs.1350/- per
month. Since multiplier adopted by the tribunal is 12 and the Respondents have raised no
objection thereto, loss of future income comes to Rs.l350/- x 12 x 12 = 1,94,400/-." It was
further observed :
"Damages on account of compensation for loss of amenities of life, hardship and
discomfort including frustration and stress under general damages awarded in sum of
Rs.5,000/- is inadequate. I increase the same to Rs.25,000/-."
5. Mr. Gaurav Goel, learned counsel appearing on behalf of the appellant, would submit
that having regard to the provisions contained in Section 163A of the Motor Vehicles Act,
for the purpose of awarding compensation on disability, the provisions of the Workmen's
Compensation Act, 1923 would be attracted. According to him, in view of the fact that
there is no dispute in regard to the genuineness of the said disability certificate, the High
Court committed a serious error in assessing the total disability at 30% only. It was
pointed out that the appellant was an indoor patient in the Lady Harding Hospital for a
month. The injury suffered by him was considered to be a grievous one and allegedly
one-third of his lower limb had been amputated. In view of the fact that no evidence,
contrary thereto, has been produced by the respondents, it was urged that the learned
Tribunal as also the High Court committed a serious illegality in arriving at the
aforementioned finding.
6. Learned counsel appearing on behalf of the respondent-insurance company, however,
supported the impugned judgment.
7. The claim petition was filed under Section 166 of the Act and not under Section 163A
thereof. It was contended by the claimant-appellant that the driver of the bus in question
was rash and negligent as a result whereof, the accident took place. By reason of Section
167 of the Act, an injured person had the option either to file a claim under the Motor
Vehicles Act or the Workmen's Compensation Act, if both the Acts apply. It is, therefore,
a case where the claimant could have filed at his option an application under the
Workmen's Compensation Act.
Section 163A provides for filing of a claim petition where an accident took place by
reason of use of the motor vehicle. It is not necessary to prove any fault on the part of the
driver or the vehicle. The Tribunal in a proceeding arising under Section 166 of the Act is
required to hold a full-fledged trial. It is required to collect datas on the basis whereof, the
amount of compensation can be determined. Under Section 163A of the Act, however, the
question of liability and extent of proof thereof are not justiciable. The Tribunal can
determine the amount on the basis of the basic datas provided therefor.
@page-SC2398
Explanation appended to Section 163A of the Act, reads, thus :
Explanation. - For the purposes of this sub-section, 'permanent disability' shall have the
same meaning and extent as in the Workmen's Compensation Act, 1923."
8. The reference to Workmen's Compensation Act by incorporation was only for the
purpose of sub-section (1) of Section 163A. It was not meant to apply in a case falling
under Section 166 of the Act. Had the provisions of the Workmen's Compensation Act
were applicable, the procedure laid down therein would also apply. For the purpose of the
definition of total disablement as also person who can grant a certificate therefor, namely,
a qualified medical practitioner, Sections 2(e) and 2(i) would be attracted. In terms of the
1923 Act, the amount of compensation is required to be determined as specified in
Section 4. The Rules made in terms of Section 32 of the Act known as Workmen's
Compensation Rules, 1924, would also be applicable.
9. The certificate in question in this case was obtained after two years. It is not known as
to whether the Civil Surgeon of the hospital treated the appellant. On what basis, such a
certificate was issued two years after the accident took place is not known. The author of
the said certificate had not been examined. Unless the author of the certificate examined
himself, it was not admissible in evidence. Whether the disability at 60% was calculated
on the basis of the provisions of the Workmen's Compensation Act or otherwise is not
known. It is also not known as to whether he was competent to issue such a certificate. It
even does not appear that the contentions raised before us had either been raised before
the Tribunal or the High Court. The Tribunal as also the High Court, therefore, proceeded
on the materials brought on record by the parties. In absence of any contention having
been raised in regard to the applicability of the Workmen's Compensation Act which, in
our opinion, ex facie has no application, the same, in our opinion, cannot be permitted to
be raised for the first time.
10. We are of the opinion, that it is not a case where we should interfere in the impugned
judgment of the High Court as also the award of the Tribunal. The appeal is dismissed
with no order as to costs.
Appeal dismissed.
AIR 2008 SUPREME COURT 2398 "United India Insurance Co. Ltd. v. Ajay Sinha"
(From : AIR 2006 Jharkhand 113)
-2008.
United India Insurance Co. Ltd. v. Ajay Sinha and Anr.
Legal Services Authorities Act (39 of 1987), S.22C - LEGAL SERVICES
AUTHORITIES - LOK ADALAT - WORDS AND PHRASES - Cognizance of cases by
Permanent Lok Adalat - Provisos to S.22-C(1) must be interpreted in expansive manner -
Terms "relating to an offence" - Should be given wider meaning - Claim against
Insurance Company for loss of goods in burglary - Determination before Permanent Lok
Adalat involving question as to whether or not offence, which is non-compoundable in
nature, has indeed been committed - Case falls outside jurisdiction of Permanent Lok
Adalat.
AIR 2006 Jharkhand 113, Reversed. (Paras 36, 37, 39)
2008 AIR SCW 1196 : AIR 2008 SC 1209 (Ref.) 35
2007 AIR SCW 7772 : AIR 2008 SC 663 (Ref.) 24
2007 (5) Scale 357 (Ref.) 32
2005 AIR SCW 2548 : AIR 2005 SC 2392 (Ref.) 34
2003 AIR SCW 3328 : AIR 2003 SC 2696 (Ref.) 32
AIR 1969 SC 78 (Ref.) 31
AIR 1964 SC 444 (Ref.) 33
AIR 1964 SC 1268 (Ref.) 33
AIR 1963 SC 217 (Ref.) 33
AIR 1958 SC 507 (Ref.) 33
Raju Ramachandran, Sr. Advocate, M.K. Dua and Kishore Rawat, for Appellant; Nitish
Massey, Ajit Kumar Sinha, Amit Kumar and Ritesh Ratnam, for Respondents.
Judgement
1. Legal Services Authorities Act, 1987 (the Act) was enacted to constitute Legal Services
Authorities to provide for free and competent legal service to the weaker sections of the
society, to ensure that opportunities for securing justice are not denied to any citizen by
reason of economic or other disabilities, and to organize Lok Adalats to secure that the
operation of the legal system promotes justice on a basis of equal opportunity.
2. The Act was enacted with a view to
@page-SC2399
give effect to the provisions of Article 39A of the Constitution of India which mandates
that State shall secure that the operation of the legal system promotes justice on a basis of
equal opportunity, and shall in particular, provide free legal aid, by suitable legislation or
schemes or in any other way, to ensure that opportunities for securing justice are not
denied to any citizen by reason of economic or other disability.
3. If we are to look at the history of grant of legal aid, it may be noticed that the Law
Commission of India in its 14th report on 'reform of Judicial Administration' published in
1958, strongly advocated the need for rendering legal aid to poor litigants and
categorically stated that 'the rendering of legal aid to the poor litigants is not a minor
problem of procedural law but a question of fundamental character'.
4. The committee under the Chairmanship of Hon'ble Mr. Justice V.R. Krishna Iyer, then
a Member of the Law Commission, constituted by the Government of India Order dated
27th October, 1972 to consider the question of making available to the weaker sections of
the community and persons of limited means in general and citizens belonging to the
socially and educationally backward class in particular, facilities for
(a) legal advice so as to make them aware of their constitutional and legal rights and
obligations; and
(b) legal aid in proceedings before Civil, Criminal and Revenue Courts so as to make
justice more easily available to all sections of the community.
With a view to implement the report of the Bhagwati Committee and in fulfillment of its
constitutional obligations under Article 39-A of the Constitution, a committee known as
the "Committee for Implementing Legal Aid Schemes (CILAS) was being constituted by
the Government of India at the very beginning under the Chairmanship of Hon'ble Mr.
Justice P.N. Bhagwati. This Committee formulated a broad pattern of the legal aid
programme to be set up in the country. It gave stress on preventive legal aid programme
with a view to creating legal awareness amongst the people. It also suggested dynamic
and activist programmes to carry legal services to the doorsteps of the rural population, to
promote community mobilization and rights enforcement through public interest
litigations and other statutes.
The Committee also framed a model scheme for establishment of State Legal Aid and
Advice Boards, as also, Committees at the High Court, District and Tahasil levels to cater
legal services to the people at large.
5. In the year 1987 the Legal Services Authorities Act was enacted by the parliament with
a view to provide free and competent legal services and to ensure opportunity for
securing justice to the downtrodden class of the society. The Statement of Objects and
Reasons for enacting the Amendment Act is as under :-
"The Legal Services Authorities Act, 1987 was enacted to constitute legal services
authorities for providing free and competent legal services to the weaker sections of the
society to ensure that opportunities for securing justice were not denied to any citizen by
reason of economic or other disabilities and to organize Lok Adalats to ensure that the
operation of the legal system promoted Justice on a basis of equal opportunity. The
system of Lok Adalat, which is an Innovative mechanism for alternate dispute resolution,
has proved effective for resolving disputes in a spirit of conciliation outside the courts."
6. We may have a look to the relevant statutory provisions for the purpose of this case.
7. Section 22-A of the Act defines "Permanent Lok Adalat" to mean a Permanent Lok
Adalat established under sub-section (1) of Section 22-B. "Public utility service" inter
alia means insurance service, and includes any service which the Central Government or
the State Government, as the case may be, may, in the public interest, by notification,
declare to be a public utility service for the purposes of this Chapter. Section 22-B
provides for establishment of Permanent Lok Adalats. Section 22-C delineates the
jurisdiction of Permanent Lok Adalat to take cognizance of cases filed before it, the
relevant provisions whereof are as under :-
"22-C. - Cognizance of cases by Permanent Lok Adalat :- 1. Any party to a dispute may,
before the dispute is brought before any court, make an application to the Permanent Lok
Adalat for the settlement of dispute :
Provided that the Permanent Lok Adalat shall not have jurisdiction in respect of any
matter relating to an offence not
@page-SC2400
compoundable under any law :
Provided further that the Permanent Lok Adalat shall also not have jurisdiction in the
matter where the value of the property in dispute exceeds ten lakh rupees :
Provided also that the Central Government, may, by notification, increase the limit of ten
lakh rupees specified in the second proviso in consultation with the Central Authority.
(2) After an application is made under sub-section (1) to the Permanent Lok Adalat, no
party to that application shall invoke jurisdiction of any court in the same dispute.
(3) ... .... ....
(4) ... .... ....
(5) The Permanent Lok Adalat shall, during conduct of conciliation proceedings under
sub-section (4), assist the parties in their attempt to reach an amicable settlement of the
dispute in an independent and impartial manner.
(6) It shall be the duty of every party to the application to co-operate in good faith with
the Permanent Lok Adalat in conciliation of the dispute relating to the application and to
comply with the direction of the Permanent Lok Adalat to produce evidence and other
related documents before it.
(7) When a Permanent Lok Adalat, in the aforesaid conciliation proceedings, is of opinion
that there exist elements of settlement in such proceedings which may be acceptable to
the parties, it may formulate the terms of a possible settlement of the dispute and give to
the parties concerned for their observations and in case the parties reach at an agreement
on the settlement of the dispute, they shall sign the settlement agreement and the
Permanent Lok Adalat shall pass an award in terms thereof and furnish a copy of the
same to each of the parties concerned.
(8) Where the parties fail to reach at an agreement under sub-section (7), the Permanent
Lok Adalat shall, if the dispute does not relate to any offence, decide the dispute."
8. The Permanent Lok Adalat, in terms of Section 22-D of the Act, while conducting
conciliation proceedings or deciding a dispute on merit is not bound by the provisions of
the Code of Civil Procedure, 1908 and the Indian Evidence Act. 1872 but guided by the
principles of natural justice, objectivity, fair play, equity and other principles of justice.
9. Section 22-E of the Act makes an Award of Permanent Lok Adalat to be final and
binding on all the parties, which would be deemed to be a decree of a civil court.
Jurisdiction of the civil court to call in question any Award made by the Permanent Lok
Adalat is barred. It has the jurisdiction to transfer any Award to a civil court and such
civil court is mandated to execute the order as if it were the decree by the court.
10. Interpretation of the aforesaid provisions in the light of the Statement of Objects and
Reasons for which they have been enacted calls for our consideration.
11. Before, however, we embark thereupon we may briefly notice the factual matrix
involved herein.
12. First respondent carries on business in electrical goods. He is an authorized
distributor of Sony products. He entered into a contract of insurance with the appellant-
company; the period covered thereunder being 29th August, 2001 to 31st August, 2002.
Allegedly, a burglary took place in his godown in the night of 18th /19th August, 2002.
He lodged a First Information Report with Doranda Police Station, Ranchi. He also
submitted a claim with the appellant alleging that in the said burglary, goods worth
Rs.l1,14,597/- had been stolen away.
13. Appellant denied and disputed the said claim which refuted the claims by a letter
dated 12th August, 2004 inter alia stating :-
a) The surveyor has observed that the loss cannot be assessed since the quantity claimed
by you is not verifiable especially as the authenticity of the documents provided by you
creates doubt.
b) The surveyor has noticed that there is movement of stock from the godown without
proper billing and proper entry which was found by the surveyor on their random
inspection of the godown on 27-7-2003.
c)... .... .... .....
d)... .... ..... .....
e) The Chartered Accountant who accompanied the surveyor had made an inspection of
the financial statements as provided by you and found various discrepancies in your
accounts. For these reasons the accounts provided by you cannot be relied upon. It was
found by the said Chartered Accountant that there was difference in closing stock,
Opening Balance of Sundry Debtors
@page-SC2401
etc. and such the credibility of the accounts submitted by you is doubtful.
f) The Dy. Superintendent of Police in his supervision note has recorded that the alleged
crime has been done by people who are closely associated with the Company under a
high hatched conspiracy and also having the capacity to sell the alleged stolen products in
the market.
g) It is also observed that neither the FIR nor during investigation by the police you ever
disclosed that there was a common watchman in that area where the godown is located
which creates doubt about the genuineness of the incident. Furthermore not providing any
security/watchman with respect to the said godown also amounts to violation of the terms
of the Policy coupled with misrepresentation."
(Emphasis supplied)
14. The Investigating Officer in the criminal case filed a final report. It was, however,
opposed by the insurance company. We have not been informed as to whether the
cognizance of the alleged offence has been taken by a competent court or not.
15. We may, however, notice that respondent being aggrieved by and dissatisfied with the
purported repudiation of his claim filed an application before the District Consumer
Forum claiming a sum of Rs. 18,45,697.50 from the appellant. It was not entertained on
the premise that deficiency in service had occurred in connection with a commercial
contract.
16. First respondent, thereafter, filed an application for the Permanent Lok Adalat
claiming a sum of Rs. 9,80,000/-. Appellant filed an objection raising the question of
jurisdiction of the Permanent Lok Adalat. By reason of an order dated 4th January, 2005,
the said objection was overruled stating that it had the pecuniary jurisdiction over the
matter and only because a criminal case is pending in the Court of Chief Judicial
Magistrate, Ranchi, the same was not relevant stating :-
"However, the finding of criminal court is not binding on this court and this court has to
decide as to whether burglary had taken place or not, After taking independent evidences
of the parties, so far finding of Surveyor is concerned, it is regarding merit of the claim
which this P.L.A. has to decide after taking evidence. If the claim cannot be refused on
the basis of surveyor report at this stage."
17. Appellant filed a writ application challenging the validity of the said order before the
Jharkhand High Court. A learned Single Judge of the High Court allowed the said writ
application opining that as Sections 479/461 of the Indian Penal Code being not
compoundable, the Permanent Lok Adalat had no jurisdiction to entertain the claim
opining :-
"9 In my considered opinion, the Permanent Lok Adalat has committed great error of law
in holding that it has jurisdiction in spite of the fact that the matter relates to an offence
not compoundable under any law. The Permanent Lok Adalat has further committed
serious error in holding that the finding of the criminal Court in non-compoundable
offence is not binding on it.
10. No doubt Chapter VI-A has been inserted in the Legal Services Authority Act, 1987
by Amendment Act of 2002 for constitution of Permanent Lok Adalat for the purpose of
prelitigation, conciliation and settlement, but the whole object of the Act is to provide
free legal and competent legal services to the weaker section of the Society to ensure that
opportunities for securing justice are not denied to any citizen by reason of economic or
other disability. The amended provision of the Act does not confer power to the
Permanent Lok Adalat even to entertain the disputes which related to a criminal offence
non compoundable in law."
18. An intra court appeal was preferred thereagainst. The Division Bench of the High
Court by reason of the impugned judgment and order dated 29th March, 2006 allowed the
appeal of the first respondent holding that the pendency of a criminal case has nothing to
do with the exercise of jurisdiction by the Permanent Lok Adalat as it was not concerned
as to who had committed the burglary but was only concerned with the fact as to whether
burglary had taken place or not stating :-
"So far as the case before the Permanent Lok Adalat is concerned, the Adalat is to
determine whether burglary had taken place or not, after taking into consideration the
independent evidence of the parties. It is not required to determine as to who has
committed burglary nor it is required to determine whether an accused is guilty for the
charges or not. Therefore, for the purpose of determination of the issue and claim in
@page-SC2402
question, the Permanent Lok Adalat is not required to determine whether offence
committed by an accused is 'compoundable' or not. Thus, as in this case such issue is not
required to be determined by the Permanent Lok Adalat, we hold that the Permanent Lok
Adalat has jurisdiction to decide the claim as made by the appellant, on merit, after
hearing the parties and on appreciation of evidence on record. Learned Single Judge has
failed to notice the aforesaid facts while determining the issue in question."
19. Mr. Raju Ramachandran, learned Senior counsel appearing on behalf of the appellant
would submit :-
(i) Chapter VI-A of the Act will have no application in a case of this nature which
involves complicated questions of fact and law.
(ii) The question as to whether the burglary has been committed or not being pending
before the criminal court, Permanent Lok Adalat had no jurisdiction in relation thereto.
(iii) As the contract of insurance had been repudiated, it was not a case which was fit for
settlement within the meaning of Section 22-B of the Act.
(iv) Claim of first respondent is mala fide as he had artificially reduced the claim to bring
the same within the jurisdiction of the Permanent Lok Adalat, although initially he
claimed a sum higher than Rs. 10 lakhs.
20. Mr. Amit Kumar, learned counsel appearing on behalf of the respondent, on the other
hand, would urge :-
(i) That the value of the property being less than Rs.10 lakhs, the Permanent Lok Adalat
had jurisdiction in regard to the dispute in question.
(ii) The restrictions imposed in regard to the offences cannot be applied to civil dispute
between the parties arising out of any offence as the same relates to the claim of the
respondent against the appellant.
(iii) Jurisdiction of the Permanent Lok Adalat being confined to determination of the
amount of loss caused to the first respondent on account of burglary, Permanent Lok
Adalat is not required to decide the case between the accused of burglary and the State.
(iv) For invoking the jurisdiction of Permanent Lok Adalat, the question as to whether the
offence is compoundable or not is not relevant.
(v) Proviso appended to sub-section (5) of Section 22 of the Act should be construed in a
manner which would widen the scope and ambit of the Act, rather accentuate the same.
(vi) The object of the legislation is to promote resolution of the dispute by conciliation
and, therefore, it is for the welfare of the general public that construction which would
achieve the object of the beneficial legislation should be preferred.
21. The term "conciliation" is not defined under the Act. It should, therefore, be
considered from the perspective of Arbitration and Conciliation Act, 1996. In order to
understand what Parliament meant by 'Conciliation', we have necessarily to refer to the
functions of a 'Conciliator' as visualized by Part III of the 1996 Act. Section 67 describes
the role of a conciliator. Sub-section (1) states that he shall assist parties in an
independent and impartial manner. Sub-section (2) states that he shall be guided by
principles of objectivity, fairness and justice, giving consideration, among other things, to
the rights and obligations of the parties, the usages of the trade concerned and the
circumstances surrounding the dispute, including any previous business practices
between the parties. Sub-section (3) states that he shall take into account "the
circumstances of the case, the wishes the parties may express, including a request for oral
statements". Sub-section (4) is important and permits the 'conciliator' to make proposals
for a settlement. This section is based on Article 7 of UNCITRAL Conciliation Rules.
Section 73, which is important, states that the conciliator can formulate terms of a
possible settlement if he feels that there exists elements of settlement. He is also entitled
to 'reformulate the terms' after receiving the observations of the parties. The above
provisions in the 1996 Act make it clear that the 'Conciliator' under the said Act, apart
from assisting the parties to arrive at a settlement, is also permitted to make "proposals
for a settlement" and "formulate the terms of a possible settlement" or "reformulate the
terms". This is indeed the UNCITRAL concept.
22. Section 89 of the Code of Civil Procedure inter alia was enacted to promote
resolution of disputes through mutual settlement.
@page-SC2403
Chapter VI-A of the Act seeks to achieve a different purpose. It not only speaks of
conciliation qua conciliation but conciliation qua determination. Jurisdiction of
Permanent Lok Adalat, although is limited but they are of wide amplitude. The two
provisos appended to Section 22-C (1) of the Act curtail the jurisdiction of the Permanent
Lok Adalat which are as under :-
Provided that the Permanent Lok Adalat shall not have jurisdiction in respect of any
matter relating to an offence not compoundable under any law :
Provided further that the Permanent Lok Adalat shall also not have jurisdiction in the
matter where the value of the property in dispute exceeds ten lakh rupees :
23. Chapter VI-A stands independently. Whereas, the heading of the Chapter talks of
prelitigation, conciliation and settlement, Section 22-C (8) of the Act speaks of
determination. It creates another adjudicatory authority, the decision of which by a legal
fiction would be a decision of a civil court. It has the right to decide a case. The term
'decide' means to determine; to form a definite opinion; to render judgment. (See
Advanced Law Lexicon 3rd Edition 2005 at 1253). Any award made by the Permanent
Lok Adalat is executable as a decree. No appeal thereagainst shall lie. The decision of the
Permanent Lok Adalat is final and binding on parties. Whereas on the one hand, keeping
in view the Parliamentary intent, settlement of all disputes through negotiation,
conciliation, mediation, Lok Adalat and Judicial Settlement are required to be
encouraged, it is equally well settled that where the jurisdiction of a court is sought to be
taken away, the statutory provisions deserve strict construction. A balance is thus required
to be struck. A court of law can be created under a statute. It must have the requisite
infrastructure therefor. Independence and impartiality of Tribunal being a part of human
right is required to be taken into consideration for construction of such a provision. When
a court is created, the incumbents must be eligible to determine the lis.
24
. An option is given to any party to a dispute. It may be a public utility service provider or
a public utility service recipient. The service must have some relation with public utility.
Ordinarily insurance service would not come within the public utility service. But having
regard to the statutory scheme, it must be held to be included thereunder. It is one thing to
say that an authority is created under a statute to bring about a settlement through
Alternate Dispute Resolution mechanism but it is other thing to say that an adjudicatory
power is conferred on it. Chapter VI-A, therefore, in our opinion, deserves a closure
scrutiny. In a case of this nature, the level of scrutiny must also be high. (See Anuj Garg
and ors. vs. Hotel Association of India and Ors. [(2008) 3 SCC 1]}.2007 AIR SCW 7772
25. Sub-section (1) of Section 22-C speaks of settlement of disputes. The authority has to
take recourse to conciliation mechanism. One of the essential ingredients of the
conciliation proceeding is that nobody shall be forced to take part therein. It has to be
voluntary in nature. The proceedings are akin to one of the recognized ADR mechanism
which is made of Medola. It may be treated at par with Conciliation and Arbitration. In
such a case the parties agree for settlement of dispute by negotiation, conciliation or
mediation. The proceedings adopted are not bending ones, whereas the arbitration is a
binding procedure. Even in relation to arbitration, an award can be the subject matter of
challenge. The provisions of the Arbitration and Conciliation Act, 1996 shall apply
thereto. The jurisdiction in terms of Section 34 of the Arbitration and Conciliation Act,
1996 is wide. The court in exercise of the said jurisdiction may not enter into the merit of
the case but would be entitled to consider as to whether the arbitrator was guilty of
misconduct. If he is found to be biased, his award would be set aside. The scope of
voluntary settlement through the mechanism of conciliation is also limited. If the parties
in such a case can agree to come to settlement in relation to the principal issues, no
exception can be taken thereto as the parties have a right of self determination of the
forum, which shall help them to resolve the conflict, but when it comes to some formal
differences between the parties, they may leave the matter to the jurisdiction of the
conciliator. The conciliation only at the final stage of the proceedings would adopt the
role of an arbitrator.
26. Here, however, the Permanent Lok Adalat does not simply adopt the role of an
Arbitrator whose award could be the subject matter of challenge but the role of an
adjudicator. The Parliament has given the authority to the Permanent Lok Adalat to
@page-SC2404
decide the matter. It has an adjudicating role to play.
27. The validity of the said provision is not in question. But then construction of such a
provision must be given in such a manner so as make it prima facie reasonable. With that
end in view let us consider the meaning of the word "relating to an offence". We will
assume that in a given case the dispute between the service provider and the service
recipient may not have anything to do with the ultimate result of the criminal case but
there are cases and cases.
28. In this case, as noticed above, the genuineness of the claim itself is in dispute. Where
the parties have taken extreme positions, the same prima facie may not be the subject
matter of conciliation which provides for a non binding settlement.
29. For the said purpose, the dispute under the criminal procedure and/or the nature
thereof would also play an important role. Whereas Respondent states that the burglary
has taken place, the appellant denies and disputes the same. In a criminal case, the
accused shall be entitled to raise a contention that no offence has taken place. If the
criminal court form an opinion that an offence had taken place, which otherwise is a non-
compoundable one, the term "relating to an offence" should be given wider meaning. The
first proviso appended to section 22-B of the Act may not be of much relevance.
30. This aspect of the matter had not been argued before the Division Bench of the High
Court. The counsel appearing were remiss in bringing the same to the notice of the Court
the binding precedents, as regards the jurisdictional aspect of the Civil Court in the light
of Section 9 of the Code of Civil Procedure.
31. In Dhulabhai and Ors. vs. The State of Madhya Pradesh and Anr., AIR 1969 SC 78,
the Court discussed the ambit of S. 9 of the CPC and laid down the following principles :
"...(1) Where the statute gives a finality to the orders of the special tribunals the Civil
Court's jurisdiction must be held to be excluded if there is adequate remedy to do what
the Civil Courts would normally do in a suit. Such provision, however, does not exclude
those cases where the provisions of the particular Act have not been complied with or the
statutory tribunal has not acted in conformity with the fundamental principles of judicial
procedure.
(2) Where there is an express bar of the jurisdiction of the court, an examination of the
scheme of the particular Act to find the adequacy or the sufficiency of the remedies
provided may be relevant but is not decisive to sustain the jurisdiction of the civil court.
Where there is no express exclusion the examination of the remedies and the scheme of
the particular Act to find out the intendment becomes necessary and the result of the
inquiry may be decisive. In the latter case it is necessary to see if the statute creates a
special right or a liability and provides for the determination of the right or liability and
further lays down that all questions about the said right and liability shall be determined
by the tribunals so constituted, and whether remedies normally associated with actions in
Civil Courts are prescribed by the said statute or not..."
32
. In Dwarka Prasad Agarwal (D) by LRs. and Anr. vs. Ramesh Chander Agarwal and Ors.
: (2003) 6 SCC 220 , this Court held : 2003 AIR SCW 338, Para 22
"...The dispute between the parties was eminently a civil dispute and not a dispute under
the provisions of the Companies Act. Section 9 of the Code of Civil Procedure confers
jurisdiction upon the civil courts to determine all disputes of civil nature unless the same
is barred under a statute either expressly or by necessary implication. Bar of jurisdiction
of a civil court is not to be readily inferred. A provision seeking to bar jurisdiction of a
civil court requires strict interpretation. The court, it is well settled, would normally lean
in favour of construction, which would uphold retention of jurisdiction of the civil
court..."
This case was cited with approval in Bhagubhai Dhanabhai Khalasi and Anr. vs. The
State of Gujarat and Ors., 2007 (5) SCALE 357.
33. Therefore, it is a fundamental presumption in statutory interpretation that ordinary
civil courts have jurisdiction to decide all matters of a civil nature. As a corollary,
(i) provisions excluding jurisdiction of civil courts should receive strict construction. (See
Bhagwat Singh vs. State of Rajasthan, AIR 1964 SC 444; Raichand vs. Union of
@page-SC2405
India : AIR 1964 SC 1268), and
(ii) provisions conferring jurisdiction on authorities and tribunals other than civil courts
(See Kasturi and Sons vs. Salivateswaran, AIR 1958 SC 507; Upper Doab Sugar Mills vs.
Shahdara (Delhi) Saharanpur Light Railway : AIR 1963 SC 217).
have to be strictly construed.
34
. This principle, taken from Principles of Statutory Interpretation by G.P. Singh, Ninth
Edition, page 630, was cited with approval in Swamy Atmananda and Ors. vs. Sri
Ramakrishna Tapovanam and Ors., AIR 2005 SC 2392. 2005 AIR SCW 2548
35
. We must also take notice of a recent decision of this Court in State of Punjab and
another vs. Jalour Singh and others : JT 2008 (2) SC 83 where this Court expressed its
dismay with the manner in which the Lok-Adalat matters are dealt with. Chief Justice of
India speaking for the Bench, upon noticing the provisions of the Legal Services
Authority Act, 1987, observed that whereas Lok Adalat had to arrive at a just settlement
in their conciliatory role guided by the principles of justice, equity, fair play and other
legal principles, but in that case it assumed a judicial role, heard parties, ignored the
absence of consensus, and increased the compensation to an extent it considered just and
reasonable, by a reasoned order which is adjudicatory in nature. It arrogated to itself the
appellate powers of the High Court and 'allowed' the appeal and 'directed' the respondents
in the appeal to pay the enhanced compensation within a period fixed by it. It was held
that such an order is not an Award. 2008 AIR SCW 1196
36. Section 22-C (1) read with Section 22-C (2), Section 22-C (8) and Section 22-E of the
Act, exclude the jurisdiction of the civil courts by providing that when an application is
made by either party to the Permanent Lok Adalat to settle a dispute at the pre-litigation
stage, the PLA shall do so, and the other party is precluded from approaching the civil
court in such a case.
37. Section 22-C (1) contains certain Provisos which limit the jurisdiction of the PLA.
Given the principle of statutory interpretation stated earlier; these Provisos, as a corollary,
must be interpreted in an expansive manner.
38. What is important to note is that with respect of public utility services, the main
purpose behind Section 22-C (8) seems to be that "most of the petty cases which ought
not to go in the regular Courts would be settled in the pre-litigation stage itself."
39. Therefore, in the instant case, the terms "relating to" an "offence" appearing in
Proviso 1 must be interpreted broadly, and as the determination before the Permanent Lok
Adalat will involve the question as to whether or not an offence, which is non-
compoundable in nature, has indeed been committed, this case falls outside the
jurisdiction of the Permanent Lok Adalat.
40. We must guard against construction of a statute which would confer such a wide
power in the Permanent Lok Adalat having regard to sub-section (8) of Section 22-C of
the Act. The Permanent Lok Adalat must at the outset formulate the questions. We
however, do not intend to lay down a law, as at present advised, that Permanent Lok
Adalat would refuse to exercise its jurisdiction to entertain such cases but emphasise that
it must exercise its power with due care and caution. It must not give an impression to
any of the disputants that it from the very beginning has an adjudicatory role to play in
relation to its jurisdiction without going into the statutory provisions and restrictions
imposed thereunder.
41. For the reasons abovementioned the order of the High Court cannot be sustained and
is set aside accordingly. The appeal is allowed. In the facts and circumstances of the case,
there shall be no order as to costs.
Appeal allowed.
AIR 2008 SUPREME COURT 2405 "Sudhir Kumar Rana v. Surinder Singh"
(From : Delhi)*
Civil Appeal No.3321 of 2008 (arising out of SLP (C) No.8262 of 2007), D/- 6 -5 -2008.
Sudhir Kumar Rana v. Surinder Singh and Ors.
(A) Motor Vehicles Act (59 of 1988), S.168 - MOTOR VEHICLES - DOCTRINES -
NEGLIGENCE - Accident - Claim for compensation - Doctrine of contributory
negligence - Ordinarily not applicable in case of children with same force as in case of
adults - Ordinarily same is question of fact.
@page-SC2406
1990 (2) ACJ 974 (Mad), Followed. (Paras 4, 5)

(B) Motor Vehicles Act (59 of 1988), S.168 - MOTOR VEHICLES - NEGLIGENCE -
Accident - Claim for compensation - Negligence - Person driving vehicle without licence
- Same by itself may not lead to finding of negligence as regards accidents - No finding
of fact arrived at that claimant was driving two-wheeler rashly and negligently when met
with accident with mini-truck - Thus only because he was not having a licence, he could
not be held to be guilty of contributory negligence.
M.A.C. App. No.928 of 2006, D/-24-11-2006 (Delhi), Reversed. (Paras 8, 10)
2008 AIR SCW 2045 (Ref.) 7
1990 (2) ACJ 974 (Mad) (Foll.) 5
1989 Lab IC 1523 (Raj) 7
Manish Maini, Tushar Bakshi and Naresh Bakshi, for Appellant; M.J. Paul, for
Respondents.
* M.A.C. App. No.928 of 2006, D/-24-11-2006 (Delhi).
Judgement
2. Appellant was driving a two-wheeler bearing registration No. DL-45 AQ 0731 on 30-
10-2003. He was aged about 17Â½ years. He met with an accident, as allegedly
respondent No. 1 was driving a mini-truck rashly and negligently. He suffered the
following injuries in the said accident :
" 1. Crush injury over right root.
2. Fracture fifth M.T. bone and joint.
3. Fracture P.P. little toe. (Total 3 fractures)
4. Abrasions over left side trunk, right-foot, right-leg, right-hand and left-knee
5. Profusely Bleeding.
6. Abrasions and blunt injuries all over body."
3. Appellant filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 (for
short "the Act"). The Tribunal opined that as the appellant did not possess a driving
licence, he must be held to have contributed to the accident. Although a sum of Rs.
30,000/- was awarded by way of compensation, in view of the finding that he was guilty
of contributory negligence on his part, found to be entitled to a sum of Rs. 12,000/-only.
The High Court by reason of the impugned judgment has dismissed the appeal preferred
by him under Section 173 of the Act.
4. The question which arises for consideration is as to whether the appellant can be said
to have guilty of contributory negligence.
Ordinarily, the doctrine of contributory negligence is not applicable in case of children
with the same force as in the case of adults.
5. We do not intend to lay down a law that a child can never be guilty of contributory
negligence but ordinarily the same is a question of fact. [See Muthuswamy and another v.
S.A.R. Annamalai and others [1990 ACJ 974].
6. A contributory negligence may be defined as negligence in not avoiding the
consequences arising from the negligence of some other person, when means and
opportunity are afforded to do so. The question of contributory negligence would arise
only when both parties are found to be negligent.
7
. The question is, negligence for what? If the complainant must be guilty of an act or
omission which materially contributed to the accident and resulted in injury and damage,
the concept of contributory negligence would apply. [See New India Assurance Company
Ltd. v. Avinash 1988 ACJ 322 (Raj.)] 1989 Lab IC 1523
In T.O. Anthony v. Kavarnan and Ors. [(2008) 3 SCC 748], it was held 2008 AIR
SCW 2045
"6. 'Composite negligence' refers to the negligence on the part of two or more persons.
Where a person is injured as a result of negligence on the part of two or more wrong
doers, it is said that the person was injured on account of the composite negligence of
those wrong-doers. In such a case, each wrong doer, is jointly and severally liable to the
injured for payment of the entire damages and the injured person has the choice of
proceeding against all or any of them. In such a case, the injured need not establish the
extent of responsibility of each wrong-doer separately, nor is it necessary for the court to
determine the extent of liability of each wrong-doer separately. On the other hand where
a person suffers injury, partly due to the negligence on the part of another person or
persons, and partly as a result of his own negligence, then the negligence on the part of
the injured which contributed to the accident is referred to as his
@page-SC2407
contributory negligence. Where the injured is guilty of some negligence, his claim for
damages is not defeated merely by reason of the negligence on his part but the damages
recoverable by him in respect of the injuries stands reduced in proportion to his
contributory negligence.
7. Therefore, when two vehicles are involved in an accident, and one of the drivers claims
compensation from the other driver alleging negligence, and the other driver denies
negligence or claims that the injured claimant himself was negligent, then it becomes
necessary to consider whether the injured claimant was negligent and if so, whether he
was solely or partly responsible for the accident and the extent of his responsibility, that
is his contributory negligence. Therefore where the injured is himself partly liable, the
principle of 'composite negligence' will not apply nor can there be an automatic inference
that the negligence was 50:50 as has been assumed in this case. The Tribunal ought to
have examined the extent of contributory negligence of the appellant and thereby avoided
confusion between composite negligence and contributory negligence. The High Court
has failed to correct the said error."
8. If a person drives a vehicle without a licence, he commits an offence. The same, by
itself, in our opinion, may not lead to a finding of negligence as regards the accident. It
has been held by the courts below that it was the driver of the mini-truck which was
being driven rashly and negligently. It is one thing to say that the appellant was not
possessing any licence but no finding of fact has been arrived at that he was driving the
two-wheeler rashly and negligently. If he was not driving rashly and negligently which
contributed to the accident, we fail to see as to how, only because he was not having a
licence, he would be held to be guilty of contributory negligence.
9. The matter might have been different if by reason of his rash and negligent driving, the
accident had taken place.
10. We, therefore, are of the opinion that the impugned judgment cannot be sustained
which is set aside accordingly. Appellant is entitled to the said sum of Rs. 30,000/- by
way of compensation with interest at the rate of 7Â½% per annum from the date of the
award till making of the payment. Even otherwise there is no reason as to why in view of
the nature of the injuries he has suffered, he should be deprived of even the petty sum of
Rs. 30,000/- by way of compensation. The appeal is allowed with the aforementioned
direction. No costs.
Appeal allowed.
AIR 2008 SUPREME COURT 2407 "Sudhir Kumar Bhalla v. Jagdish Chand"
Criminal Appeal No. 776 with 780, 781, 779, 782, 777 and 778 of 2008 (arising out of
SLP (Cri.) No. 2541 with 2545, 2546, 2548, 2550, 2988 and 2990 of 2007), D/- 1 -5
-2008.
Sudhir Kumar Bhalla v. Jagdish Chand and etc. etc.
Negotiable Instruments Act (26 of 1881), S.138 - DISHONOUR OF CHEQUE - PLEA -
Dishonour of cheque - Cheque issued by way of security - Plea that dishonour of such
cheque does not attract criminal liability - Accused also alleging interpolation in amount
written in numbers - Fact of interpolation corroborated by expert evidence - Conviction
recorded without considering legal plea and without giving satisfactory reasons for
disbelieving fact of interpolation - Liable to be set aside.
Cri. Appeal No.1413-SBA of 2002, D/-25-01-2007 and 19-02-2007 (P And H), Reversed.
(Paras 21, 22)
P.S. Patwalia, Sr. Advocate, Aman Preet Singh Rani, D. Tripathi and Ashok K. Mahajan,
for Appellant; Ankit Singhal, T.V. S. Raghavendra Sreyas, Nikhil Nayyar, Ajay Pal and
Kuldip Singh (N.P.), for Respondents.
Judgement
1. JUDGMENT :- Leave granted in all the above-said Special Leave Petitions.
2. We have seven appeals before us in which the parties are similar. Since all these
appeals arise out of common judgments and orders dated 25-01-2007 and 19-02-2007
passed by a learned Single Judge of the High Court of Punjab and Haryana in Criminal
Appeal No. 1410-SBA of 2002, Criminal Appeal No. 1411-SBA of 2002, Criminal
Appeal No. 1412-SBA of 2002, Criminal Appeal No. 1413-SBA of 2002, Criminal
Appeal No. 1433-SBA of 2002, Criminal Misc. Petition No.29090-M of 2001 and
Criminal Misc. Petition No.36987-M of 2001. As similar questions of facts and law are
@page-SC2408
involved, therefore, for the sake of convenience they are being heard together and
disposed of by this common judgment.
3. Brief facts, which led to the trial of the appellant, are as follows :-
Jagdish Chand-respondent herein and his wife Smt. Ramesh Rani are the proprietors of
M/s. Mehra Export Corporation and M/s. Mehra International, Katra Hari Singh,
Amritsar. The firms deal in saffron, herbs and other like goods. M/s. Sudhir Kumar
Bhalla and Brothers, 25, Green Park, Ludhiana, of which Sudhir Kumar Bhalla-appellant
herein is one of the partners, has been purchasing various goods from the firms of Jagdish
Chand and Ramesh Rani. The sale price was being paid in cash and at times, through
cheques.
4. In the month of May, 1997, the appellant on behalf of his firm issued six cheques Nos.
442344, 442345, 442346, 442347, 442348 and 442349 dated 01-05-1997, 03-05-1997
and 05-05-1997 in favour of M/ s. Mehra Export Corporation and M/s. Mehra
International. Out of those six cheques, two cheques were in the sums of Rs. 30,000/-
each and four cheques were in the sums of Rs. 40,000/- each. All those cheques were
drawn in favour of the Indian Overseas Bank, Ludhiana.
5. One of the cheques, in the sum of Rs. 30,000/-, was stated to have been encashed,
whereas the other five cheques have been dishonoured on the ground of 'Exceed
Arrangement'. On 20-05-1997, the respondent sent statutory notices under Section 138(5)
of the Negotiable Instruments Act, 1881 [for short 'the Act'] to the appellant, which were
despatched through registered post on 24-05-1997. However, the same were received
back on 28/29-5-1997 with a report that the addressee was 'not met'. The respondent
again sent another notice on 04-06-1997 through courier, which again was not accepted
by the appellant and the same was received back on 05-06-1997 with the report of
refusal.
6. It was on 13-06-1997 that the respondent, on his behalf and on behalf of his wife as her
attorney, filed five criminal complaints under Section 138 of the Act read with Section
420 of the Indian Penal Code [for short 'the IPC'] in the Court of Chief Judicial
Magistrate, Amritsar, against the appellant. On 09-07-1997, the respondent-complainant
made a statement that he wanted to withdraw the said complaint with permission to file
the fresh complaint. The learned Chief Judicial Magistrate vide his order dated 09-07-
1997 passed the following order :-
"In view of the statement given by the complainant, recorded separately, the present
complaint is hereby dismissed as withdrawn."
7. On 12-07-1997, the respondent filed second complaint on similar and practically the
same points purported to have accrued on identical causes of action. The second
complaint was entrusted to the Court of Judicial Magistrate, 1st Class, Amritsar, who
recorded the statement/evidence of the respondent on 12-07-1997. Thereafter, the Judicial
Magistrate, 1st Class, vide order dated 23-08-1997 issued summon to the appellant. The
appellant appeared on 06-04-1998 before the Judicial Magistrate and filed an application
for discharging him in the case. However, on 01-06-1998 the Judicial Magistrate
dismissed the said application. After following and adopting the due procedure as
prescribed under the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.'), the trial court
dismissed the complaint on 06-02-2002 and acquitted the appellant.
8. Being aggrieved by the order of acquittal of the appellant by the trial court, the
respondent filed five criminal appeals, two as an attorney of his wife and three on his
behalf, in the High Court.
9. In April 1998, the appellant approached the Court of Judicial Magistrate, 1st Class,
Ludhiana, under Section 156 of Cr.P.C. by way of two separate applications alleging
fraud, cheating, tampering of the cheques by the respondent and his wife and prayed that
the police be directed to register criminal cases against them. On the directions of the
learned Magistrate, FIR No. 93 of 1998 was registered against the respondent under
Sections 420, 463, 465, 468 and 471 of the IPC, whereas second FIR No. 94 of 1998 was
lodged against Jagdish Chand and Smt. Ramesh Rani under Sections 420, 463, 465, 468,
471 and 120-B of the IPC at Police Station, Sarabha Nagar, Ludhiana. After investigation,
the police filed challans in both the cases in the court. The trial court charge sheeted the
respondent and his wife vide two separate orders dated 15-01-2000. They filed two
revision
@page-SC2409
petitions against the orders of framing charges against them, which were dismissed by the
learned Sessions Judge, Ludhiana, vide separate orders dated 04-06-2001. The respondent
and his wife filed two Criminal Miscellaneous Petition Nos. 29090 and 36987-M of 2001
in the High Court challenging the validity and correctness of the orders of the learned
Trial Magistrate as also of the learned Sessions Judge.
10. The High Court vide its judgment dated 25-01-2007 allowed the above-said five
appeals and convicted the appellant under Section 138 of the Act. By the same order,
Criminal Misc. Petitions Nos. 29090 and 36987-M of 2001 were allowed and FIR Nos.
93 and 94 of 1998 lodged by the respondent and his wife were quashed. By order dated
19-02-2007, the appellant was sentenced to undergo R.I. for one year and to pay a fine of
Rs. 8 lacs and in default thereof, the appellant shall undergo further R.I. of one year.
Hence, the appellant has preferred these appeals.
11. We have heard the learned counsel for the parties and with their assistance, examined
the entire material placed on record.
12. Mr. P.S. Patwalia, learned senior counsel appearing on behalf of the appellant,
assailed the judgment of the High Court inter alia contending :-
(i) that the learned Single Judge erred in not appreciating the statement of the respondent-
complainant in which he admitted that all the cheques were filled by him, the date and
figures of the amounts were also in his handwriting and the appellant simply had signed
the cheques. According to the learned counsel, the cheques in question have been forged
and fabricated by the respondent by making material alteration by changing figure in
digit from Rs. 30,000/-to Rs. 3,00,000/- by adding 'zero' at the end of Rs. 30,000/- and
Rs. 40,000/- to Rs. 4,00,000/- by adding 'zero' at the end of Rs. 40,000/-; and
(ii) that the learned Single Judge erred in not addressing the legal arguments raised on
behalf of the appellant that the provisions of Section 138 of the Act are only attracted if
the cheques issued in discharge of liability or debt are dishonoured, but not on account of
security cheques.
13. Mr. Ankit Singhal, learned counsel for the respondent, on the other hand, contended
that the reasons given by the High Court recording the order of conviction of the
appellant are based upon proper appreciation of evidence led by the respondent in the
case. He submitted that this Court should be slow to interfere in the well-reasoned and
well-merited judgment of the High Court.
14. We have given our anxious consideration to the rival contentions of the learned
counsel for the parties. The arguments put forward by Mr. Patwalia deserve to be
accepted.
15. We have gone through the record of the trial Magistrate placed before us. In support
of the complaint filed under Section 138 of the Act, the trial Magistrate examined the
respondent on 27-04-1999. On 05-05-2000, the respondent in his cross-examination
admitted as under :-
"I have brought the account books for the year 1995-96 and 1996-97. I have seen the
ledger for the year 1995-96 where there is a payment of rupees one lac dated 26-10-1995
having been made by the accused to me but the remaining amounts are for an amount of
Rs. 35,000/- each and at one time it was for an amount of Rs. 40,000/-. Once a payment
of Rs. 25,000/- was also made in the said year. This ledger relates to the firm M/s. Mehra
Exports. The payments of Rs. 35,000/- each have been made either through cheques or
through drafts. I have also seen the ledger book of M/s. Mehra International for the year
1995-96. Except Rs. 10,000/- all the payments made in this account are either through
draft or through cheque. The lowest payment in this account in this year is Rs. 10,000/-
the maximum payment made by the accused to this firm in this account is Rs. 50,000/-.
The notices were sent only to the firm M/s. Sudhir Kumar Bhalla and Brothers before
filing the complaint and not to the partners individually. We did not receive any cheque
from the accused bearing No. 442344. We never received any advance payment from the
accused. As per account books of firm M/s. Mehra International for the year 1997-98 a
sum of Rs. 7,16,672.50 ps. on account of principal amount is due from the accused."
The respondent again stated as under :-
"The cheque No. 442347 is in my hands which is dated 5-5-1997 but the same is signed
by accused Sudhir Kumar Bhalla. All the cheques which are subject-matter of other
complaints are filled in by me and are
@page-SC2410
signed by Sudhir Kumar Bhalla accused. The dates on the cheques are also in my hands.
The amount of the cheques in words and figures are also in my hands. I can read the
contents of the cheques clearly."
16. On 05-05-2000, the trial court on the basis of the statement of the respondent-
complainant in his cross-examination made the following observations :-
"At this stage, counsel for accused had made a request for giving note regarding the
demeanour of the witness as well as to give note on the aforesaid fact so that the
document may not be tampered with subsequent. Heard, without commenting upon the
demeanour of the witness at this stage. I have observed from cheque No. 442349 dated 3-
5-1997 the last zero of the figure written in the column of rupees is separate from the
remaining four zeros which are attached with each other in the same flow."
17. Thereafter, on 21-05-2001 the cheques were sent to Mr. Sardara Singh Parmar,
Document Expert, for examination, who in his report dated 21-05-2001 submitted to the
Court, opined as under :-
"In view of the reasons stated above, I am of the opinion that the last figure (0) in above
mentioned cheque has not been written in the continuous process by the same person with
the same pen and ink, but it has been subsequently changed into by adding figure (0) in
the original amount Rs. 40,000/- and it is free hand forgery."
18. Mr. Sardara Singh Parmar was examined as DW-3 before the trial court on 13-08-
2001 and deposed as under :-
"I am of the opinion that the last figure zero in above mentioned cheque has not been
written in the continuous process by the same person with the same pen and ink, but it
has been subsequently changed into by adding figure zero in the original amount Rs.
30,000/- and it is free hand forgery. The reasons have already been given in my report
dated 21-5-2001. It consists of 6 pages and it is Ex.DW3/1. It has been prepared by me
signed by me and is correct. One photograph chart bearing the photograph cheque No.
442345 dt. 5-5-97 is Ex.DW3/ 2, one negative is Ex.DW/3."
19. As noticed above, the Judicial Magistrate vide his judgment dated 06-02-2002
acquitted the appellant of the charge under Section 138 of the Act and consequently
dismissed the complaint of the respondent.
20. The learned Single Judge of the High Court, after hearing the learned counsel for the
parties, recorded the conviction of the appellant vide order dated 25-01-2007 for an
offence under Section 138 of the Act. which reads as under :-
"Lastly, it was contended by the learned counsel for Sudhir Kumar Bhalla that the figures
of Rs. 30,000/- and Rs. 40,000/-mentioned in the cheques were interpolated by adding
'zero' to make the same Rs. 3,00,000/- and Rs. 4,00,000/-. He contended that there is
evidence of the handwriting expert to establish the afore-stated fact and the trial court had
rightly disbelieved the claim of Jagdish Chand on this count.
The contention of the learned counsel for Sudhir Kumar Bhalla is misplaced. The trial
court had clearly fallen in error by ignoring the fact that the cheques were not only filled
in figures, but in words as well, according to which Rs.3 lacs and Rs.4 lacs were written
thereon. Even though, the handwriting expert opined that the zero has been added in the
cheques subsequently, but it was clearly in consonance with the wishes of Sudhir Kumar
Bhalla, who had issued the cheques by depicting the amounts in words also.
That apart, there is cogent evidence on record in the shape of original bills and the
complete details of the prices of the goods supplied and the registers of account, which
could not be countered by Sudhir Kumar Bhalla during the course of evidence. In view of
the overwhelming evidence in favour of Jagdish Chand, the findings of the trial court
awarding an acquittal to Sudhir Kumar Bhalla are unsustainable.
On the basis of the above discussion, it is held that Sudhir Kumar Bhalla, who was one of
the partners of M/s. Sudhir Kumar Bhalla and Brothers, Ludhiana, issued the cheques in
question to discharge the liability of his firm and on presentation thereof by Jagdish
Chand and Ramesh Rani, the same were dishonoured. Thus, he had committed an offence
punishable under Section 138 of the Act. This court holds him accordingly guilty for the
same in each of the appeals.
For the reason that the findings qua interpolation in the cheques in question have been
categorically set aside, the proceedings against Jagdish Chand and Ramesh Rani
@page-SC2411
initiated in the court of Judicial Magistrate, 1st Class, Ludhiana, pursuant to FIR Nos. 93
and 94 of 1998 registered at Police Station Sarabha Nagar, Ludhiana, which have been
assailed in Criminal Miscellaneous Petitions Nos. 29090-M and 36987-M of 2001, must,
as a logical consequence, fail. In view of the above, the criminal appeals and the criminal
miscellaneous petitions filed by Jagdish Chand and Ramesh Rani are accepted. The
proceedings taken against Jagdish Chand and Ramesh Rani in pursuance to FIR Nos. 93
and 94 of 1998 registered at Police Station Sarabha Nagar, Ludhiana, are also quashed."
21. On examination of the above-stated findings of the learned Single Judge in the
judgment impugned before us, we find that the learned Single Judge has not addressed
himself on the legal question raised before him by the appellant that the criminal liability
of the appellant under the provisions of Section 138 of the Act are attracted only on
account of the dishonour of the cheques issued in discharge of liability or debt, but not on
account of issuance of security cheques. The learned Single Judge has also not given
cogent, satisfactory and convincing reasons for disbelieving and discarding the pre-
charge evidence of the appellant corroborated by the evidence of the expert opinion in
regard to the interpolation in and fabrication of the cheques by adding one more figure '0'
to make Rs. 30,000/- to Rs. 3,00,000/- and similarly adding one more figure '0' to make
Rs. 40,000/- to Rs. 4,00,000/-.
22. In the backdrop of the facts of these cases, we are of the opinion that the judgments
and orders of the High Court cannot be sustained on the premise that the High Court has
not addressed itself on the above-said two legal questions raised by the appellant and,
therefore, the impugned judgments and orders dated 25-01-2007 and 19-02-2007 are set
aside. The interest of justice should be subserved if the matters are remitted to the High
Court to decide the appeals filed by the respondent against the appellant and criminal
miscellaneous petitions seeking for quashing the first information reports registered
against the respondent and his wife by the police for commission of the offences stated in
FIR Nos.93 and 94 of 1998. Needless to say that any observation made by us in this
judgment shall not be construed as an expression of opinion on the merits of the cases,
which shall be decided by the High Court on their own merits in accordance with law.
The appeals shall stand disposed of in the aforesaid terms.
Appeal allowed.
AIR 2008 SUPREME COURT 2411 "Haryana State Agricultural Marketing Board v.
Sadhu Ram"
Civil Appeal No.2549 with 2550 to 2557 of 2008 (arising out of SLP (C) No.17473 with
17594, 17552, 17675, 17686, 17693, 17712, 17840 of 2006 and 3347 of 2007), D/- 8 -4
-2008.
Haryana State Agricultural Marketing Board and Ors. v. Sadhu Ram and etc. etc.
Constitution of India, Art.14 - Punjab Agricultural Produce Markets Act (23 of 1961),
S.18 - EQUALITY - AGRICULTURAL PRODUCE - ALLOTMENT OF PREMISES -
Allotment of plots - Cancellation of - Non disclosure of reserve price to bidders at time of
auction - Cannot be ground to hold cancellation of allotment to highest bidder as arbitrary
- Final authority to approve or disapprove best offer being Chief Administrator of Board,
empowered to reject offer without assigning any reason - Moreover when fresh auction
had fetched higher price.
1994 AIR SCW 3344, 2006 AIR SCW 5968, Rel. on.
Civil W. P. No.816 of 2005, D/-27-04-2006 (P And H), Reversed. (Paras 9, 11, 12, 15)
2006 AIR SCW 5968 (Rel. on) 11, 12
Neeraj Kumar Jain, Bharat Singh, Sanjay, Sandeep Chaturvedi, Umang Shankar, Ugra
Shankar Prasad, for Appellants; P.S. Patwalia, Sr. Advocate, A.P. Bhandari, S.C. Patel,
Tejas Patel, Subash Bhommick, Sanjeev K. Pabbi, Ms. Shikha Roy, S.K. Sabharwal, J.S.
Puri, Yash Pal Dhingra, Senthil Jagadeesan, for Respondents.
* C. W. P. No.816 of 2005, D/-27-04-2006 (P and H).
Judgement
TARUN CHATTERJEE, J. :- Leave granted.
2. These bunch of appeals have arisen from a common judgment and order dated
@page-SC2412
27th of April, 2006 of the High Court of Punjab and Haryana at Chandigarh whereby the
High Court had allowed a bunch of writ petitions filed by the respondents challenging an
order dated 17th of December, 2004 cancelling the allotments of Plots in their favour in
an open auction. Since common questions of law and fact arise in the disposal of these
bunch of appeals and the High Court has disposed of the entire bunch of writ petitions
following the judgment passed in Mangat Ram and Ors. Vs. State of Haryana and Ors.
[CWP No. 213 of 2005 decided on 27th of April, 2006], we take up the facts leading to
the filing of these appeals from the judgment dated 27th of April, 2006 passed in CWP
No. 213 of 2005 of the High Court of Punjab and Haryana at Chandigarh, which are as
under :-
3. The appellants are statutory authorities under the Punjab Agricultural Produce Markets
Act, 1961 (in short "the Act"). A public notice was issued by the office of Market
Committee, Panchkula, Haryana, appellant No. 2 inviting traders and general public to
purchase commercial sites in an open auction to be held on 8th of July, 2004 in the New
Grain and Vegetable Market, Panchkula. By this auction, Shop plots (62 Nos.) and Booth
plots measuring 20' X 50' were to be auctioned. On 16th of May, 2003, the High Powered
Committee constituted by an office order recommended that the reserve price for a plot
measuring 20' X 50' be fixed at Rs. 33,91,391/- which was approved at the level of the
Chief Administrator of the Board. However, the reserve price so fixed was neither
mentioned in the public notice nor was the same announced before the start of the
auction. The auction of the plots was held as per schedule. The respondents were declared
to be the highest bidders for the plots who deposited 25% of the bid money as per the
requirement of law. On 24th of July, 2004, the auction committee report of the aforesaid
auction held on 8th of July, 2004 was put up before the Market Committee, Panchkula,
which by a resolution dated 24th of July, 2004 recommended the confirmation of the
auction bids and resolved that the approval of the Chief Administrator, Haryana State
Agricultural Marketing Board be taken under Section 18 of the Act. On 30th of
November, 2004, a letter was sent on behalf of the Chief administrator to the Executive
Officer-cum-Secretary, Market Committee, Panchkula by which some discrepancies were
conveyed. On 6th of December, 2004, the Executive Officer addressed a letter to the
Chief Administrator informing him that the discrepancies pointed out have been attended
to and requested for approval. The Chief Administrator, on 15th of December, 2004
conveyed his approval in respect of the bids given for plot No. 1 measuring 20' X 50' and
three booths bearing Nos. 149, 150, 152 measuring 12' X 27Â½'. The auction of all the
other plots was rejected and it was directed to refund the amounts to the respondents and
to put the plots in open auction on 20th of December, 2004. On 17th of December, 2004,
the respondents received a communication from the Market Committee that since the
auction in their favour had not been approved by the Chief Administrator, 25% of the bid
money deposited by them was being refunded. The second public auction, as scheduled,
was held on 20th of December, 2004, and a price higher than that of the earlier price was
fetched from the auction purchasers.
4. On 4th of January, 2005, the respondents filed a batch of writ petitions seeking
quashing of the order dated 17th of December, 2004 cancelling the allotments of plots in
their favour. The batch of writ petitions filed by the respondents before the High Court
were taken up for hearing and the main judgment that was passed was in the case of
Mangat Ram and Ors. Vs. State of Haryana and Ors., CWP No. 213 of 2005 decided on
27th of April, 2006 and thereafter, following the same judgment, all the remaining writ
petitions were disposed of by holding that the respondents were entitled to be allotted
alternative plots. It is against these judgments of the High Court that separate appeals
have now been filed by the respondents, in respect of which leave has already been
granted. As noted herein earlier, the High Court, while deciding the bunch of writ
petitions, had taken into consideration the facts from one of the writ petitions bearing
CWP No. 213 of 2005 on the ground that the writ petitions involved common questions
of law and fact. That being the stand taken by the High Court, we also, therefore, at this
stage look at the findings of the High Court in CWP No. 213 of 2005, which are as
under :-
i) In view of non-disclosure of the reserve price to the auction purchasers, the auction
proceedings in their favour could neither
@page-SC2413
be cancelled nor the approval be denied on the ground that the bid price offered by them
was lower than the reserve price;
ii) The non-disclosure of the reserve price amounted to an unfair practice;
iii) The auction in favour of the highest bidders was subject to final approval by the Chief
Administrator but the approval could be declined only for reasons which were relevant
and could justify the non-acceptance of highest bids of the auction purchasers but the
same could not be arbitrary or absolute;
iv) The order dated 17th of December, 2004 would be quashed but it would be open to
the Chief Administrator to exercise his powers in compliance with the terms and
conditions of auction so as to consider the question of approval of the auction in
accordance with law.
v) Mere encashing of cheques, refunding the amount, by the auction purchasers could not
be taken to be a fact against them.
5. The learned counsel for the appellants argued that the auction in favour of the
respondents was subject to final approval of the Chief Administrator of the Board and
since the Chief Administrator had rejected the said auction in their favour, the action of
the appellants was wholly justified. He further argued that the bids offered by the
respondents were lower than the reserve price, which resulted in the rejection of the bids
by the Chief Administrator who under Section 18 of the Act had the prerogative to accept
or to reject the bids without assigning any reason. The learned counsel for the appellants
also submitted before us that in the subsequent auction conducted on 20th of December,
2004, a higher price was fetched in respect of the same plots. He accordingly argued that
the High Court was not justified in invalidating the action of the appellants on the ground
of non-disclosure of the reserve price and even if the non-disclosure of the reserve price
at the time of auction was to be treated as an irregularity or illegality, the High Court
could at the most quash the entire auction but could not confirm the auction in favour of
the respondents and in fact, the respondents had already received back the cheques from
the Market Committee and encashed them and therefore, had no subsisting right qua their
claim.
6. These submissions of the learned counsel for the appellants were hotly contested by the
learned senior counsel for the respondents. Mr. Patwalia, the learned senior counsel for
the respondents argued that since the reserve price was not disclosed either in the Public
notice or at the time of the auction to the persons participating in the same, the offers
made by the respondents in the auction held on 8th of July, 2004 could not be rejected by
the Chief Administrator of the Board as such rejection mush be treated as unfair,
unreasonable and illegal. The learned senior counsel for the respondents Mr. Patwalia
further submitted that the respondents were not informed the reason for rejection of their
bids even in the letter dated 17th of December, 2004 and that the bids offered by them
were rejected by the appellants after 6 months without affording them any opportunity of
being heard.
7. We have examined the aforesaid submissions of the learned counsel for the parties. We
have also examined the judgment of the High Court allowing the writ petitions and
holding that since the reserve price was not disclosed before the auction, which was
mandatory, and the respondents proceeded to participate in the auction without knowing
such reserve price, it could not be said that since the offer of the respondents was less
than the reserve price, the same was liable to be rejected. Having heard the learned
counsel for the parties and after carefully examining the impugned judgment of the High
Court and also the order dated 17th of December, 2004 and other materials on record
including the terms and conditions of the auction held on 8th of July, 2004, we are of the
view that this appeal must succeed for the reasons stated hereinafter.
8. Before we proceed to consider the submissions made on behalf of the parties, at the
risk of repetition, we may keep it on record that it is not in dispute that the reserve price
for holding the auction of the plots in question was neither shown in the Public Notice of
the appellants nor was it known to the respondents. It is also an admitted position that the
money that was deposited by the respondents was refunded by the appellants by account
payee cheques, which were duly encashed by the respondents. As mentioned herein
earlier, the High Court had practically allowed the writ petition on a finding that since the
reserve price was not shown in the Public Notice, the
@page-SC2414
authorities had no jurisdiction to cancel the auction in favour of the respondents on the
ground that their offers were less than the reserve price and therefore, the auction held on
8th of July, 2004 could not be cancelled by the order of the Chief Administrator of the
Board.
9. We are unable to agree with this view expressed by the High Court in the impugned
judgment. It is true that the reserve price was neither known to the respondents nor was it
advertised for the purpose of allotting the plots to the respondents but that could not, in
our view, permit the High Court to direct allotment of alternative plots to the respondents.
Even assuming that there was error on the part of the authorities in not mentioning the
reserve price in the Public Notice, then also, it was not proper for the High Court to direct
allotment of alternative plots to the respondents on the basis of the auction held on 8th of
July, 2004.
10. It is also not in dispute that the final authority to approve the auction bids was the
Chief Administrator of the Board. Before proceeding further, we may refer to Section 18
of the Act which runs as under :-
"Under Section 18 of the Act all the sales of plots whether by open auction or draw of
lots, are subject to approval by the CA of the Board. However, he may or may not accord
such approval without assigning any reason. In case of offer is rejected, the amount
deposited as 1/4th of the total price would be refunded without interest by the M.C."
(Emphasis supplied)
11
. A perusal of the provisions under Section 18 of the Act, as quoted hereinabove, would
show that the auction would be final only after the same is approved by the Chief
Administrator of the Board. In case the Chief Administrator of the Board rejects the
auction, he may not be required to assign any reason for such rejection. If such rejection
is made, Section 18 only provides that the amount deposited by the bidder must be
refunded without interest by the Market Committee of the Board. Keeping this provision
in mind, it is clear that since the Chief Administrator of the Board was the final authority
to approve the auction bids, which in his own discretion, were not approved, it could not
be said that since the reserve price was not mentioned in the Public Notice and was not
known to the respondents, the High Court could have directed allotment of alternative
plots in the exercise of its power under Article 226 of the Constitution. The scope of
judicial review/interference under Article 226 in contractual matters including
Government contracts and auction of plots by State Government has been extensively
dealt with by this Court in a catena of decisions. In Tata Cellular Vs. UOI [1994 (6) SCC
651], the principle that ought to be applied in judicial review of decisions especially those
relating to acceptance of tender and award of contract was considered in detail and it was
held that the principle of judicial review would apply to the exercise of contractual
powers by Government bodies in order to prevent arbitrariness or favouritism. But it must
also be kept in mind that there are inherent limitations in exercise of the power of judicial
review. In that decision, it was held that the right to refuse the lowest or any tender is also
available to the Government but the principles laid down in Article 14 of the Constitution
must be kept in mind while accepting or refusing a tender. There can be no question of
infringement of Article 14 if the Government tries to get the best quotation and also to
cancel the best quotation if it was of the view that the best quotation also was not to the
satisfaction of the Government to get a better market price of the plots in question.
Therefore, it was held in that decision that the State Government and its instrumentalities
cannot be said to have exercised an arbitrary power when they found that the best offer
made by the respondents could not be accepted because the market value of the plots in
question would fetch better than the amount offered by the respondents. It was further
held in that decision that since the power of judicial review is not an appeal from the
decision, the court cannot substitute its own decision. In the present case, it is not in
dispute that the plots auctioned by the appellants belonged to the instrumentalities of the
State Government, which must be expected to protect the financial interests of the State.
In the decision reported in [2007(1) SCC 477] Rajasthan Housing Board and Another Vs.
J.S. Investments and Another, this Court, after thoroughly considering the earlier
decisions of this Court including the decision in Tata Cellular Vs. Union of India [supra],
considered the contours of power which the High Court would exercise in a writ petition
1994 AIR SCW 3344
2006 AIR SCW 5968
@page-SC2415
filed under Article 226 of the Constitution when the challenge was to cancellation of
auction held by a public body where the prime consideration was fairness and generation
of public revenue and held that even if some defect was found in the ultimate decision
resulting in cancellation of the auction, the court should exercise its discretionary power
under Article 226 with great care and caution and should exercise it only in furtherance of
public interest. It was also held in that decision that when the Chairman of the Housing
Board had the final authority regarding acceptance of the bid, a person who had made the
highest bid in the auction did not acquire any right to have the auction concluded in his
favour until the Chairman had passed an order to that effect.
12
. Keeping the principles laid down in the aforesaid decisions of this Court in mind, let us,
therefore, consider whether non-disclosure of the reserve price in the Public Notice is a
ground on which the High Court could direct the authorities to allot alternative plots in
favour of the respondents in exercise of its powers under Article 226 of the Constitution.
At the risk of repetition, we may note that one of the conditions in the Public Notice was
that the final authority to approve or disapprove the best offer in the auction was that of
the Chief Administrator of the Board. It is true that the Chief Administrator of the Board
rejected the offers without assigning any reason but Section 18 of the Act clearly provides
that such rejection could be made without assigning any reason. Let us now consider
whether the action on the part of the Chief Administrator of the Board cancelling the
auction was unfair, arbitrary and invalid. In our view, considering the facts and
circumstances of the case, the action of the Chief Administrator of the Board was fair and
the cancellation was not arbitrary. The second 'auction was held in respect of the plots in
question on 20th of December, 2004 and from the said auction, although the reserve price
was not mentioned, much higher offers were received by the appellants. Apart from that,
we should not keep this fact out of mind that the amounts deposited by the respondents
with the appellants were refunded to the respondents by account payee cheques, which
were duly encashed by them. Such being the position, we neither find any mala fide,
unfairness or arbitrariness on the part of the Chief Administrator of the Board in rejecting
the offers of the respondents nor do we find it a colourable exercise of power. That apart,
in view of the decision of this court in Rajasthan Housing Board and another Vs. G.S.
Investments and another [supra], since the final authority to approve the bids was with
the Chief Administrator, it is obvious that a person who had made the highest bid in the
auction did not acquire any right to have the auction concluded in his favour until the
Chief Administrator had passed an order to that effect and the auction proceedings could
always be cancelled. It is on record that the offers made by the respondents in the auction
dated 8th of July, 2004 could not fetch the amount expected from the said plots and that is
the reason a fresh Public Notice was issued by the appellants for a subsequent auction.
The said auction was held and as noted herein earlier, from the said auction, the price
fetched was much higher than the offers made by the respondents. That being the position
and considering the fact that a subsequent auction was held and concluded, it was not
open to the High Court to direct the allotment of alternative plots at the rate offered by
the respondents treating the auction held on 8th of July, 2004 to be valid. 2006 AIR
SCW 5968
13. Mr. Patwalia, the learned senior counsel appearing for the respondents submitted that
his clients were ready to pay the enhanced amounts which were offered by the bidders in
the second auction and therefore, in view of this, the decision of the High Court should be
upheld with such modification. We are unable to accept this submission of Mr. Patwalia
because at the present moment, third party interests have also been created in the matter
and the bidders in the second auction were not made parties to the writ petitions.
14
. Let us now take up the other aspect of the matter. As noted herein earlier, the reserve
price was not shown in the Public Notice and therefore, the respondents had no
knowledge of the reserve price. Even assuming that the reserve price had to be given in
the Public Notice, then also, we are of the view that the best course for the High Court
would be to cancel the entire auction in view of the decision of this court in Tata Cellular
Vs. Union of India [supra] rather than substituting its own opinion by directing allotment
of 1994 AIR SCW 3344
@page-SC2416
alternative plots. It is, therefore, difficult to accept the views expressed by the High Court
that since reserve price was not known to the respondents and they were found to be the
highest bidders in the said auction, they have acquired a right to get the allotment of
alternative plots and the appellants had no authority to reject the highest offers given by
the respondents or to cancel the auction itself. Since the entire auction was cancelled, we
do not find any justification how the High Court could pass an order directing allotment
of the alternative plots on the same terms and conditions when, after cancellation, the
second auction was held in which the price fetched was much higher than the offers made
by the respondents. That apart, we do not find anything unfair in not disclosing the
reserve price. It is common knowledge that when reserve price is disclosed, the bidders
often form cartels and bid at or around the disclosed price, though the market price is
much higher. We, therefore, do not agree with the High Court that the appellants had
acted in an unfair manner in not disclosing the reserve price at the time of inviting tenders
or even at the time of holding the auction.
15. In view of the admitted fact that the money deposited by the respondents with the
appellants was refunded to the respondents by account payee cheques which were duly
encashed by them and in view of the admitted fact that subsequently, a second auction
was held on 20th of December, 2004 in respect of the same plots which were put up for
auction on 8th of July, 2004 and in the second auction, some other parties have now
acquired interest in the said plots, it was not open to the High Court to direct the
appellants, in the exercise of its writ jurisdiction, to allot alternative plots to the
respondents only on the ground that the auction dated 8th of July, 2004 could not be
cancelled by the Chief Administrator of the Board without assigning any reason and also
on the ground that the reserve price was not disclosed in the Public Notice issued by the
appellants.
16. In this view of the matter, we are, therefore, unable to sustain the decision of the High
Court and accordingly, the judgment of the High Court is liable to be set aside.
17. For the foregoing reasons, the impugned judgment of the High Court is set aside and
the appeals are allowed and the writ petitions stand rejected. There will be no order as to
costs.
Appeals allowed.
AIR 2008 SUPREME COURT 2416 "Sita Ram Gupta v. Punjab National Bank"
(From : Delhi)
-2008.
Sita Ram Gupta v. Punjab National Bank and Ors.
Contract Act (9 of 1872), S.130 - CONTRACT - AGREEMENT - ESTOPPEL -
Revocation of guarantee - Agreement of continuing guarantee with bank - Revocation of
guarantee before loan was advanced to debtor - Guarantor appellant however, cannot
invoke benefit of S.130 because he had waived that benefit by entering into agreement of
guarantee with bank - Held that, he was not entitled to deny liability to pay debt amount
to bank.
Evidence Act (1 of 1872), S.115. (Paras 7, 8)
AIR 1988 SC 293 (Foll.) 7
AIR 1971 SC 2213 (Foll.) 7
Rishi Maheshwari, R.K. Maheshwari, Raj Kumar Kaushik, for Appellant; Dhruv Mehta,
Yashraj Singh Deora, Harshvardhan Jha (M/s. K.L. Mehta and Co.), for Respondents.
Judgement
TARUN CHATTERJEE, J. :- Leave granted.
2. This appeal arises out of the final judgment and decree dated 11th of May, 2006 passed
by the High Court of Delhi at New Delhi in RFA No.71 of 1985 whereby the High Court
had set aside the judgment and de cree dated 12th of November, 1984 passed by the
Additional District and Sessions Judge dismissing the suit filed against the appellant who
was a guarantor in respect of loans advanced by the Punjab National Bank [ in short 'the
Bank'] respondent No. 1 to M/s. Rangaa Trades and Exports Pvt. Ltd. respondent No.2 in
this appeal. By the impugned judgment, the High Court affirmed the decision of the
Additional District and Sessions Judge and held that the suit filed by the Bank be decreed
against the original
@page-SC2417
defendant Nos.1 to 4 for a sum of Rs. 42,874/- including interest at the rate of 19.5 per
cent per annum with quarterly rests from the date of filing of the suit till realization. At
this stage, we may note that the said decree against the defendant Nos. 1 to 4 has now
become final as no appeal was preferred by the said defendant Nos. 1 to 4 against the said
decree. Feeling agg rieved by the aforesaid judgment of the High Court, this special leave
petition has been filed by the guarantor appellant in respect of which leave has already
been granted.
3. The only question that was raised on behalf of the appellant was that in view of the
statutory provision under section 130 of the Indian Contract Act, 1872 (in short "the
Act"), whether the High Court was justified in holding that the appellant who was a
guarantor of the loan advanced to the defendant nos. 1 to 4 was liable to pay the decretal
amount on the ground that the appellant had revoked the guarantee before such loan was
actually paid to the defendant Nos. 1 to 4 and long before the suit was filed by the bank
against the defendants for recovery of such loan.
4. In order to decide the question raised by the learned counsel for the appellant, we may
look into the agreement of guarantee entered into by the bank with the appellant as
guarantor, which reads as under:
"The guarantors hereby guarantee jointly and severally to pay the bank on demand all
principal, interest, costs, charges and expenses due and which may at any time become
due to the Bank from the borrower, on the accounts opened in respect of the said limits
(hereinafter called the 'said accounts') down to the date of payment and also all loss or
damages, costs, charges and expenses and in the case of legal costs, costs as between
attorney and client occasioned to the Bank by reason of omission, failure or default
temporary or otherwise in such payment by the Borrower or by the Guarantors or any of
them including costs (as aforesaid) of enforcement or attempted enforcement of payment
by suit or otherwise or by a sale or realization or attempted sale or realization of any
security for the said indebtedness or otherwise howsoever or any costs (which costs to be
as aforesaid) charges or expenses which the Bank may incur by being joined in any
proceeding to which the Bank may be made or may make itself party either with or
without others in connection with any such securities or any proceeds thereof.
The Guarantors hereby declare that this guarantee shall be a continuing guarantee and
shall not be considered as cancelled or in any way affected by the fact that at any time the
said accounts may show no liability against the Borrower or may even show a credit in
his favour but shall continue to be guarantee and remain in operation in respect of all
subsequent transactions."
(Emphasis supplied)
Keeping the agreement of guarantee, as noted hereinabove, in mind, let us now look into
the facts of the present case. It is an admitted position that the guarantee issued by the
appellant to the Bank was subsequently cancelled by his letter dated 31st of July, 1980
written to the Manager of the Bank and in that view of the matter, the appellant sought to
substantiate his case that since his guarantee had stood revoked before the loan was in
fact taken by the defendants from the bank, in view of Section 130 of the Act, he was not
liable to pay the loan taken by the defendants in respect of which the appellant was a
guarantor. The trial court, as noted hereinabove, dismissed the suit against the appellant
and in appeal by the Bank, the High Court had reversed the decree passed by the trial
court and granted decree in favour of the Bank and against the appellant. Subsequent to
the revocation of guarantee by the appellant, there were transactions in respect of the loan
between the defendant Nos. 1 to 4 and 6 and the bank. The suit was filed for recovery of
loan by the Bank against the appellant as well as the other defendant Nos. 1 to 4 and 6.
5. The learned counsel appearing for the appellant, relying on Section 130 of the Act,
sought to argue that in view of the fact that Section 130 clearly provides for revocation of
a continuing guarantee as to future transactions by notice to the creditor and as in the
present case, the guarantee was revoked long before the loan was given and the suit filed,
the appellant was not liable to pay the decretal amount to the Bank. Accordingly, he
submitted that the High Court was not Justified in reversing the Judgment of the trial
court and in decreeing the suit against the appellant. This submission of the learned
counsel for the appellant was seriously contested by Mr. Dhruv Mehta, the learned
counsel appearing on behalf of the Bank. According to Mr. Mehta, the submission of
@page-SC2418
the learned counsel for the appellant cannot be accepted in view of the clause in the
agreement of guarantee itself, as noted herein- earlier. Before we proceed further and in
order to decide the submissions made on behalf of the parties before us, it would be
appropriate to reproduce Section 130 of the Act, which reads as under: -
"Revocation of continuing guarantee - A continuing guarantee may at any time be
revoked by the surety, as to future transactions, by notice to the creditor."
6. We have carefully examined the submissions made on behalf of the parties and also the
relevant clauses in the agreement of guarantee. In our view, the High Court was perfectly
justified in holding that the appellant was liable to pay the decretal amount to the Bank in
view of the clause, as mentioned herein earlier, in the agreement of guarantee itself. The
agreement of guarantee clearly provides that the guarantee shall be a continuing
guarantee and shall not be considered as cancelled or in any way affected by the fact that
at any time, the said accounts may show no liability against the borrower or may even
show a credit in his favour but shall continue to be a guarantee and remain in operation in
respect of all subsequent transactions. This was an agreement entered into by the
appellant with the Bank, which is binding on him. Therefore, the question arises whether
the statutory provision under Section 130 of the Act shall override the agreement of
guarantee. In our view, the agreement cannot be said to be unlawful nor the parties have
alleged that it was unlawful either before the Trial Court or before the High Court. Let us,
therefore, keep in mind that the agreement of guarantee entered into by the appellant with
the Bank was lawful.
7
. The question is whether the appellant, having entered into such an agreement of
guarantee with the Bank, had waived his right under the Act. In our view, the High Court
has rightly held and we too are of the view that the appellant cannot claim the benefit
under Section 130 of the Act because he had waived the benefit by entering into the
agreement of guarantee with the Bank. In Shri Lachoo Mal vs. Shri Radhey Shyam,
[(1971) 1 SCC 619], this Court observed that the general principle is that everyone has a
right to waive and to agree to waive the advantage of a law or rule made solely for the
benefit and protection of the individual in his private capacity which may be dispensed
with without infringing any public right or public principle. In Halsbury's Laws of
England, Vol. 8, 3rd Edn., it has been stated in para 248 at page 143 as under: - AIR
1971 SC 2213
"As a general rule, any person can enter into a binding contract to waive the benefits
conferred upon him by an Act of Parliament, or, as it is said, can contract himself out of
the Act, unless it can be shown that such an agreement is in the circumstances of the
particular case contrary to public policy. Statutory conditions may, however, be imposed
in such terms that they cannot be waived by agreement, and, in certain circumstances, the
legislature has expressly provided that any such agreement shall be void." (Emphasis
supplied)
In Brijendra Nath Bhargava and Ann Vs. Harsh Wardhan and Ors. [(1988) 1 SCC 454], it
has been observed at page 461 in para 10 that if a party had given up the advantage he
could take of a position of law, it was not open to him to change and say that he could
avail of that ground. The same principle has been followed in Bank of India and Ors. vs.
O. P. Swarnakar and Ors. [(2003) 2 SCC 721]. AIR 1988 SC 293
2003 AIR SCW 313
8. Keeping this principle in mind, we now look at the clause in the agreement of
guarantee, as noted herein-earlier. There cannot be any dispute that the appellant had
clearly agreed that the guarantee that he had entered into with the Bank was a continuing
guarantee and the same was to continue and remain in operation for all subsequent
transactions. Having entered into the agreement in the manner indicated above, in our
view, it was, therefore, not open to the appellant to turn around and say that in view of
Section 130 of the Act, since the guarantee was revoked before the loan was advanced to
defendant Nos. 1 to 4 and 6, he was not liable to pay the decretal amount as a guarantor
to the Bank as his guarantee had already stood revoked. In this view of the matter, we are
not in a position to accept the submissions of the learned counsel for the appellant and we
hold that in view of the nature of guarantee entered into by the appellant with the Bank,
the statutory provision under Section 130 of the Act shall not come to his help. The
findings arrived at by the High Court while deciding the first appeal were that the amount
shown due in
@page-SC2419
the accounts of the Bank against the appellant and the defendants was neither cleared by
the defendants nor by the appellant. Therefore, even if a letter was written to the Bank by
the appellant on 31st of July, 1980 withdrawing the guarantee given by him, it was
contrary to the clause in the agreement of guarantee, as noted herein- earlier. Therefore, it
was not open to the appellant to revoke the guarantee as the appellant had agreed to treat
the guarantee as a continuing one and was bound by the terms and conditions of the said
guarantee. For this reason, it is difficult to accept the submissions of the learned counsel
for the appellant that in view of the statutory provision under Section 130 of the Act, after
the revocation of the guarantee by the appellant, he was not liable to pay the decretal
amount to the Bank. No other point was raised by the learned counsel for the appellant.
Accordingly, there is no merit in this appeal. The appeal is thus dismissed. There will be
Appeal dismissed.
AIR 2008 SUPREME COURT 2419 "Shaukat Hussain Guru v. State (NCT) Delhi"
Coram : 2 PRAKASH PRABHAKAR NAOLEKAR AND V. S. SIRPURKAR, JJ.
Writ Petition (Cri.) No. 106 of 2007, D/- 14 -5 -2008.
Shaukat Hussain Guru v. State (NCT) Delhi and Anr.
(A) Constitution of India, Art.32 - WRITS - SUPREME COURT - Writ petition - Scope -
Final judgment of S. C. - Cannot be assailed in writ petition.
(B) Criminal P.C. (2 of 1974), S.222, S.39 - Penal Code (45 of 1860), S.121, S.123 -
CHARGE - CRIMINAL PROCEDURE - STATE - Conviction without charge for minor
offence - Accused charged u/S. 121, IPC of offence of waging, attempting or abetting war
against State - Offence of concealment of such fact, in circumstances is a minor offence -
Accused can be convicted u/S.123, IPC even in absence of charge - Plea of loss of
opportunity to raise defence of reasonable excuse - Not tenable as such defence could
also be raised in trial u/S.121, IPC of which he was charged - Writ petition to quash
conviction - Filed after dismissal of review and curative petitions - Not tenable. (Paras
14, 16, 21)
AIR 1989 SC 1335 : 1990 Cri LJ 1810 (Ref.) 11
AIR 1988 SC 1531 : 1988 Cri LJ 1661 (Ref.) 11
AIR 1980 SC 674 : 1980 Tax LR 1657 (Rel. on) 19
AIR 1975 SC 1500 19
AIR 1971 SC 107 19
AIR 1971 SC 2162 19
AIR 1967 SC 1 (Ref.) 11
AIR 1965 SC 845 19
Shanti Bhushan, Sr. Advocate, Nitya Ramakrishnan, Sanjay Pathak and Ms. Anitha
Shenoy, for Appellant; Gopal Subrmonium, ASG, Mukta Gupta, Mannu Sharma, Vibhor
Garg, Vikas Sharma and D. S. Mahra for Respondents.
Judgement
1. P. P. NAOLEKAR, J. :- Close to noon on 13.12.2001, five heavily armed persons
entered the Parliament House Complex and inflicted heavy casualties on the security men
on duty. In the gun battle which took place in the Parliament House Complex, the five
terrorists who stormed the Complex were killed. Nine persons including eight security
personnel and one gardener succumbed to the bullets of the terrorists and 16 persons
including 13 security men received injuries. The Investigating Agency took up
investigation which revealed possible involvement of the four accused persons, namely,
Mohd. Afzal, Shaukat Hussain Guru, S.A.R. Gilani and Navjot Sandhu alias Afsan Guru
along with some other proclaimed offenders said to be the leaders of the banned
organization known as Jaish-e-Mohammed. The four accused persons were charged of
different offences.
2. The petitioner was charged under the following sections of the Prevention of Terrorism
Act (POTA), the Indian Penal Code (IPC) and the Explosive Substances Act:
i) Section 3(2) of POTA
ii) Section 3(3) of POTA
iii) Section 3(4) of POTA
@page-SC2420
iv) Section 3(5) of POTA
v) Section 4(b) of POTA
vi) Section 121 of IPC
vii) Section 121A of IPC
viii) Section 122 of IPC
ix) Section 302 read with 120B of IPC
x) Section 307 read with 120B of IPC
xi) Section 3 of Explosive Substances Act.
3. The accused persons were tried by the Designated Special Court on the charges
framed. After the conclusion of the trial, the Designated Court convicted three accused,
namely, Mohd. Afzal, Shaukat Hussain Guru and S.A.R. Gilani for the offences under
Sections 121, 121A, 122, Section 120B read with Sections 302 and 307 read with Section
120B, IPC, sub-sections (2), (3) and (5) of Section 3 and Section 4(b), POTA and
Sections 3 and 4 of the Explosive Substances Act. Accused Nos. 1 and 2 were also
convicted under Section 3(4), POTA. The other accused Navjot Sandhu alias Afsan Guru
was acquitted of all the charges except the one under Section 123, IPC. The other three
accused were awarded the death sentence under Section 302 read with Section 120B, IPC
and Section 3(2), POTA. They were also sentenced to life imprisonment on as many as
eight counts under the provisions of IPC, POTA and the Explosive Substances Act in
addition to varying amounts of fine.
4. The Designated Judge submitted the record of the case to the High Court of Delhi for
confirmation of death sentence imposed on the three accused. Each of the four accused
filed appeals against the verdict of the Designated Judge. The State also filed an appeal.
The High Court dismissed the appeals of Mohd. Afzal and Shaukat Hussain Guru and
confirmed the death sentence imposed on them, and allowed the appeal of the State in
regard to sentence under Section 121, IPC and awarded them death sentence under that
Section also. The High Court allowed the appeals of S.A.R. Gilani and Navjot Sandhu
alias Afsan Guru and acquitted them of all the charges. The judgment of the High Court
gave rise to seven appeals - two appeals preferred by Shaukat Hussain Guru and one
appeal by Mohd. Afzal and four appeals preferred by the State/Government of National
Capital Territory of Delhi against the acquittal of S.A.R. Gilani and Navjot Sandhu alias
Afsan Guru. The matter was heard by this Court and by its judgment dated 4th August,
2005 this Court dismissed the appeal filed by Mohd. Afzal and death sentence imposed
upon him was confirmed. Appeal of the petitioner Shaukat Hussain Guru was partly
allowed. He was convicted under Section 123, IPC and sentenced to undergo rigorous
imprisonment of 10 years and to pay a fine of Rs. 25,000/- and in default of payment of
fine he was to undergo rigorous imprisonment for a further period of one year. His
conviction on the other charges was set aside. The appeals filed by the State against the
acquittal of S.A.R. Gilani and Afsan Guru were dismissed.
5. Aggrieved by the order of this Court convicting the petitioner under Section 123, IPC,
a review petition was filed by the petitioner under Article 137 of the Constitution. The
petitioner in the review petition filed before this Court mainly took the ground that the
petitioner had not been charged under Section 123, IPC but has been convicted by this
Court for the offence under that Section. In para 2 of the review petition, it was stated
thus :
"Section 123, IPC was not a charge that the prosecution ever pressed against the
petitioner, at any stage, not even in arguments before this Court. This Hon'ble Court had
during the course of the appeal hearings not indicated that this was a charge considered
against the accused. Thus counsel for the petitioner had no occasion to address any
argument on the point. The petitioner had no opportunity of being heard with regard to
this charge, and nothing in the charge-sheet or in the evidence put him on notice that he
would have to defend a charge under Section 123, IPC. The petitioner had no opportunity
of being heard in this Hon'ble Court on the question of whether, upon acquittal on all
charges of conspiracy to commit terrorist offences and waging war, a conviction could
have been recorded under Section 123 of IPC which is of concealment of a design to
wage war. It is the petitioner's respectful case that neither the charge-sheet nor the
evidence revealed the ingredients of an offence under Section 123, IPC, aside of the fact
that even taken at face value the facts said to be proved do not establish the offence. In
the circumstances, the petitioner's conviction for an offence under Section 123, IPC is an
error apparent on the face of record and a grave miscarriage of justice. It has been
occasioned
@page-SC2421
by a complete denial of natural justice, for he had neither notice of, nor opportunity to
defend the charge or represent against it. Section 123, IPC is not a minor offence with
respect to Section 121 or 121A, in fact or in law."
The review petition was dismissed by this Court on 22nd September, 2005.
6. Aggrieved by dismissal of review petition, the petitioner filed a curative petition
contending therein that this Court had acquitted the petitioner on all charges framed
against him but convicted him under Section 123, IPC, an offence with which he was not
charged and in respect of which even the Public Prosecutor did not advance any argument
in this Court. It was alleged in the curative petition that since the petitioner was not
charged under Section 123, IPC, his conviction for that offence is not only without
jurisdiction but also in total contravention of the principles of natural justice and is liable
to be set aside in exercise of this Court's jurisdiction in a curative petition on the ground
of contravention of the principles of natural justice. It was further contended that the
charge under Section 123, IPC having not been framed, he had no opportunity to raise
and prove the defence available to him. under Section 39(1) of the Code of Criminal
Procedure. The curative petition was also dismissed by a Bench of four Judges of this
Court on 12th January, 2007.
7. In the present petition filed by Shaukat Hussain Guru under Article 32 of the
Constitution of India, prayers are made for a writ of habeas corpus requiring the
petitioner to be brought before the court and to release him after recording a finding that
his continued detention is in violation of his fundamental right guaranteed by Article 21
8
. The Division Bench of this Court in the judgment delivered on 4th August, 2005 has
considered the case of the petitioner from para 297 of State (NCT of Delhi) v. Navjot
Sandhu alias Afsan Guru, (2005) 11 SCC 600 and found that the confessional statement
of the petitioner would be excluded from the consideration of the circumstances found
against him. This Court has taken into consideration the various circumstances against the
petitioner and has held in paras 320 and 321 of SCC as under : , 2005 AIR SCW 4148,
Para 19
"320. In the light of the above discussion, can it be said that the circumstances established
by satisfactory evidence are so clinching and unerring so as to lead to a conclusion,
unaffected by reasonable doubt, that the appellant Shaukat was a party to the conspiracy
along with his cousin Afzal? We find that there is no sufficient evidence to hold him
guilty of criminal conspiracy to attack Parliament. The gaps are many, once the
confession is excluded. To recapitulate, the important circumstances against him are:
1. Taking a room on rent along with Afzal at Christian Colony hostel into which Afzal
inducted the terrorist Mohammed about a month prior to the incident. Shaukat used to go
there.
2. The motorcycle of Shaukat being found at Indira Vihar, one of the hideouts of the
terrorists which was hired by Afzal in the 1st week of December, 2001.
3. His visits to Gandhi Vihar house which was also taken on rent by Afzal in December,
2001 to accommodate the terrorists and meeting Afzal there quite often, as spoken to by
PW34.
4. Accompanying Afzal and Mohammed for the purchase of motorcycle by Afzal.
5. His frequent calls to Afzal especially on the date of attack.
6. His leaving Delhi to Srinagar on the date of attack itself in his truck with Afzal who
carried a mobile phone, laptop used by the terrorists and cash of Rs.10 lakhs.
7. The fear and anxiety with which he and his wife conversed over the phone on the night
of following day.
These circumstances, without anything more, do not lead to the conclusion that Shaukat
was also a party to the conspiracy in association with the deceased terrorists. The
important missing link is that there was no occasion on which Shaukat ever contacted any
of the deceased terrorists on phone. Shaukat was not shown to be moving with the
deceased terrorists at any time excepting that he used to go with Afzal to the boys' hostel
where Mohammed was staying initially and he once accompanied Afzal and Mohammed
to the second hand Motorcycle shop. He did not accompany Afzal at the time of purchase
of chemicals, etc. used for preparation of explosives and motor car used by the terrorists
to go to the Parliament House. In the absence of any evidence
@page-SC2422
is regards the identity of the satellite phone number, the court cannot presume that the
calls were received from a militant leader who is said to be the kingpin behind the
operations. The frequent calls and meetings between Shaukat and Afzal should be viewed
in the context of the fact that they were cousins. Though his inclination and willingness to
lend a helping hand to Afzal even to the extent of facilitating him to flee away from Delhi
to a safer place soon after the incident is evident from his various acts and conduct, are
not sufficient to establish his complicity in the conspiracy as such. Certain false answers
given by him in the course of examination under Section 313 are not adequate enough to
make up the deficiency in the evidence relating to conspiracy as far as Shaukat is
concerned. At the same time, the reasonable and irresistible inference that has to be
drawn from the circumstances established is that the appellant Shaukat had the
knowledge of conspiracy and the plans to attack the Parliament House. His close
association with Afzal during the crucial period, his visits to the hideouts to meet Afzal,
which implies awareness of the activities of Afzal, the last minute contacts between him
and Afzal and their immediate departure to Srinagar in Shaukat's truck with the
incriminating laptop and phone held by Afzal would certainly give rise to a high degree
of probability of knowledge on the part of Shaukat that his cousin had conspired with
others to attack Parliament and to indulge in the terrorist acts. He was aware of what was
going on and he used to extend help to Afzal whenever necessary. Having known about
the plans of Afzal in collaborating with terrorists, he refrained from informing the police
or Magistrate intending thereby or knowing it to be likely that such concealment on his
part will facilitate the waging of war. In this context, it is relevant to refer to Section 39,
CrPC:
"39. Public to give information of certain offences.- (1) Every person, aware of the
commission of, or of the intention of any other person to commit, any offence punishable
under any of the following sections of the Indian Penal Code (45 of 1860), namely:-
(i) Sections 121 to 126, both inclusive, and Section 130 (that is to say, offences against
the State specified in Chapter VI of the said Code); shall, in the absence of any
reasonable excuse, the burden of proving which excuse shall lie upon the person so
aware, forthwith give information to the nearest Magistrate or police officer of such
commission or intention."
321. Thus, by his illegal omission to apprise the police or Magistrate of the design of
Afzal and other conspirators to attack Parliament which is an act of waging war, the
appellant Shaukat has made himself liable for punishment for the lesser offence under
Section 123, IPC. If he had given the timely information, the entire conspiracy would
have been nipped in the bud. The fact that there was no charge against him under this
particular section, does not, in any way, result in prejudice to him because the charge of
waging war and other allied offences are the subject matter of charges. We are of the view
that the accused Shaukat is not in any way handicapped by the absence of charge under
Section 123. IPC. The case which he had to meet under Section 123 is no different from
the case relating to the major charges which he was confronted with. In the face of the
stand he had taken and his conduct even after the attack, he could not have pleaded
reasonable excuse for not passing on the information. Viewed from any angle, the
evidence on record justifies his conviction under Section 123. IPC."
(Emphasis supplied)
9. It is contended by Shri Shanti Bhushan, learned senior counsel for the petitioner that
no charge under Section 123, IPC having been framed, the petitioner was not given an
opportunity to prove the fact that he had a reasonable excuse for not informing the
nearest Magistrate or police officer of the commission of the offence of which the
accused were charged of or their intention to commit an offence, nor the petitioner was
given an opportunity to prove the fact that in fact he gave information to the nearest
Magistrate or police officer of the commission of the offence or intention to commit an
offence of conspiracy they were charged of. It is submitted by the learned senior counsel
that the offence under Section 123, IPC is not a minor offence of the charged offences,
for the court to exercise the powers under Section 222 of the Cr.P.C. The submission of
the learned senior counsel further proceeded with that the petitioner has not been heard
nor was given an opportunity to meet the charge under Section
@page-SC2423
123, FPC at the trial nor in the appeal stage or at the stage of the review petition or when
the curative petition was decided in chambers, which tantamounts to judgment being
delivered against the accused without following the principles of natural justice. It was
submitted by the learned senior counsel that the judgment delivered without following the
principles of natural justice would be nullity and thus this Court should exercise
jurisdiction under Article 32 of the Constitution to remedy the wrong and to set at liberty
the accused petitioner who is in illegal detention and serving the sentence under Section
123, IPC under which he was not charged.
10. On the contrary, it is submitted by Shri Gopal Subramanium, learned Additional
Solicitor General that the charges which had been framed against the petitioner under
Sections 121, 121A and 122, IPC and the offence under Section 123, IPC for which he
was found guilty and sentenced, are cognate offences having the main ingredients in
common. The main ingredients consist of several particulars and combination of some of
them constitute a complete offence under Section 123, IPC, which is a minor offence, and
such combination having been proved the Court has rightly convicted the accused
petitioner under Section 123, IPC for which neither separate charge was required to be
framed nor the Court was required to hear him again after framing of the charge. The
learned Additional Solicitor General further urged that this Court having found that
Section 123 is a minor offence of the Sections for which the accused petitioner faced trial
after framing of the charges and his review petition and curative petition being dismissed,
writ petition under Article 32 of the Constitution of India would not be maintainable, the
relief under which could only be given by setting aside the judgment of the Court.
11
. In Rupa Ashok Hurra v. Ashok Hurra and Another, (2002) 4 SCC 388, a Constitution
Bench of this Court has considered whether an aggrieved person is entitled to any relief
against the final judgment/order of this Court after dismissal of the review petition either
under Article 32 of the Constitution or otherwise. After considering in threadbare the
judgments of this Court in Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967
SC 1 : (1966) 3 SCR 744 (judgment by 9 learned Judges), A.R. Antulay v. R.S. Nayak,
(1988) 2 SCC 602 (judgment by 7 learned Judges) and Triveniben v. State of Gujarat,
(1989) 1 SCC 678 (judgment by Constitution Bench), the Constitution Bench has held in
Rupa Ashok Hurra (supra) that a final judgment/order passed by this Court cannot be
assailed in an application under Article 32 of the Constitution of India by an aggrieved
person, whether he was a party to the case or not. Thus, it is settled law now that
judgment of this Court cannot be assailed invoking Article 32 of the Constitution of
India. In Rupa Ashok Hurra (supra), the Court has considered the arguments advanced by
the senior counsels that the principle of finality of the order of this Court had to be given
a go-by and a case is required to be re-examined when the orders were passed without
jurisdiction or in violation of the principles of natural justice and that the Court has
inherent jurisdiction to examine the case under that jurisdiction of this Court. It was also
contended that oral hearing on such an application should be given and it should be heard
by a Bench of Judges other than those who passed the order on the ground that it would
inspire confidence in the litigant public. It was submitted that Article 129 of the
Constitution declared this Court to be court of record, so it would have inherent powers to
pass appropriate orders to undo injustice to any party resulting from the judgments of this
Court. It was urged that in case of gross miscarriage of justice, this Court ought to have
exercised its inherent powers by entertairiing an application to examine the final order of
this Court, even when review was rejected, in the rarest of the rare cases. Where the order
was passed without jurisdiction or in violation of the principles of natural justice, the case
would fall in the rarest of the rare cases. It was contended that the corrective power must
be exercised so as to correct injustice in a case of patent lack of jurisdiction. It was urged
that in case of manifest illegality and palpable injustice, this Court under its inherent
powers could reconsider its final judgment/order. On the submissions of the counsel, the
Court was faced with the question whether an order passed by this Court can be corrected
under its inherent powers after dismissal of the review petition on the grounds that it was
passed either without jurisdiction or in 2002 AIR SCW 1730
AIR 1988 SC 1531
AIR 1989 SC 1335
@page-SC2424
violation of the principles of natural justice or due to unfair procedure giving scope for
bias which resulted in abuse of the process of the court or miscarriage of justice to an
aggrieved person. The Constitution Bench after considering various cases on the topic
and the arguments of the senior counsels appearing in the case, laid down mechanism to
deal with the matters where the question of inherent lack of jurisdiction, violation of the
principles of natural justice, manifest illegality or palpable injustice has been brought to
the notice of the Court. This Court has held that to prevent abuse of its process and to
cure gross miscarriage of justice, it may reconsider its judgment in exercise of its inherent
powers and then laid down tests and the requirements for exercising such jurisdiction by
the Court and the mechanism therefor in paras 50 to 53 as under:
"50. The next step is to specify the requirements to entertain such a curative petition
under the inherent power of this Court so that floodgates are not opened for filing a
second review petition as a matter of course in the guise of a curative petition under
inherent power. It is common ground that except when very strong reasons exist, the
Court should not entertain an application seeking reconsideration of an order of this
Court which has become final on dismissal of a review petition. It is neither advisable nor
possible to enumerate all the grounds on which such a petition may be entertained.
51. Nevertheless, we think that a petitioner is entitled to relief ex debito justitiae if he
establishes (1) violation of principles of natural justice in that he was not a party to the lis
but the judgment adversely affected his interests or, if he was a party to the lis, he was not
served with notice of the proceedings and the matter proceeded as if he had notice and (2)
where in the proceedings a learned Judge failed to disclose his connection with the
subject-matter or the parties giving scope for an apprehension of bias and the judgment
adversely affects the petitioner.
52. The petitioner, in the curative petition, shall aver specifically that the grounds
mentioned therein had been taken in the review petition and that it was dismissed by
circulation. The curative petition shall contain a certification by a Senior Advocate with
regard to the fulfillment of the above requirements.
53. We are of the view that since the matter relates to re examination of a final judgment
of this Court, though on limited ground, the curative petition has to be first circulated to a
Bench of the three senior-most Judges and the Judges who passed the judgment
complained of, if available. It is only when a majority of the learned Judges on this Bench
conclude that the matter needs hearing that it should be listed before the same Bench (as
far as possible) which may pass appropriate orders. It shall be open to the Bench at any
stage of consideration of the curative petition to ask a Senior Counsel to assist it as
amicus curiae. In the event of the Bench holding at any stage that the petition is without
any merit and vexatious, it may impose exemplary costs on the petitioner."
12. In the present case, the Court has specifically dealt with the question whether the
offence under Section 123, IPC of which the accused was not charged, is a minor offence
falling under the charges framed, and held that the fact that there was no charge against
the accused under this particular Section, does not, in any way, result in prejudice to him
because the charge of waging war and other allied offences are the subject matter of
charges. It was held that the accused Shaukat is not in any way handicapped by the
absence of charge under Section 123, IPC. The case which he had to meet under Section
123 is no different from the case relating to the major charges which he was confronted
with. In the face of the stand he had taken and his conduct even after the attack, he could
not have pleaded reasonable excuse for not passing on the information. It was held that
viewed from any angle, the evidence on record justifies his conviction under Section 123,
IPC.
13
. Section 222 of the Code of Criminal Procedure, 1973 (Cr.P.C.) authorizes and gives
jurisdiction to the court to convict an accused of the charge which has not been framed, if
he is found guilty of a minor offence. The court need not frame a separate charge before
the conviction is rendered on a minor offence. In Shamnsaheb M. Multtani v. State of
Karnataka, (2001) 2 SCC 577, this Court has held in paras 15 and 16 as under : 2001
AIR SCW 532
"15. Section 222(1) of the Code deals with a case "when a person is charged with an
offence consisting of several particulars". The section permits the court to convict the
@page-SC2425
accused "of the minor offence, though he was not charged with it". Sub-section (2) deals
with a similar, but slightly different situation.
xxx xxx xxx
16. What is meant by "a minor offence" for the purpose of Section 222 of the Code?
Although the said expression is not defined in the Code it can be discerned from the
context that the test of minor offence is not merely that the prescribed punishment is less
than the major offence. The two illustrations provided in the section would bring the
above point home well. Only if the two offences are cognate offences, wherein the main
ingredients are common, the one punishable among them with a lesser sentence can be
regarded as minor offence vis-a-vis the other offence."
In another case of Suman Sood @ Kamal Jeet Kaur v. State of Rajasthan, (2007) 5 SCC
634 (in para 29), a 2-Judge Bench of this Court was of the view that : 2007 AIR
SCW 5013
"... Now, it is well settled that if the accused is charged for a higher offence and on the
evidence led by the prosecution, the court finds that the accused has not committed that
offence but is equally satisfied that he has committed a lesser offence, then he can be
convicted for such lesser offence. Thus, if A is charged with an offence of committing
murder of B, and the court finds that A has not committed murder as defined in Section
300, IPC but is convinced that A has committed an offence of culpable homicide not
amounting to murder (as defined in Section 299, IPC), there is no bar on the court in
convicting A for the said offence and no grievance can be made by A against such
conviction".
14. To prove an offence under Section 121, IPC, the prosecution is required to prove that
the accused is guilty of waging war against the Government of India or attempts to wage
such war, or abets the waging of such war, whereas for proving the offence under Section
123, IPC against the accused the prosecution is required to prove that there was a
concealment by an act or by illegal omission of existence of a design to wage war against
the Government of India and he intended by such concealment to facilitate, or he knew
that such concealment will facilitate, the waging of war. In the present case, the accused
was charged under Section 121, IPC for waging war against the Government of India or
attempting to wage such war or abetting the waging of such war. The concealment of
such fact by an act or illegal omission with an intention to facilitate, or knowing that such
concealment will facilitate, waging of war, even in the absence of proof of his
involvement in waging of war against the Government of India, will constitute an offence
and an accused can always be convicted for the concealment of such fact under Section
123, IPC. The prosecution having been successful in proving the necessary ingredients of
Section 123, IPC, it would constitute a minor offence of a major offence and, therefore,
the petitioner was convicted under Section 123, IPC which is a minor offence of the
offences he faced trial.
15. It is contended by the learned senior counsel for the petitioner that the charge having
not been framed under Section 123, IPC the petitioner had lost opportunity of raising
defence provided under Section 39, Cr.P.C. The relevant portion of Section 39 reads as
under :
"39. Public to give information of certain offences. - (1) Every person, aware of the
commission of, or of the intention of any other person to commit, any offence punishable
under any of the following sections of the Indian Penal Code (45 of 1860), namely :-
(i) Sections 121 to 126, both inclusive, and section 130 (that is to say offences against the
State specified in Chapter VI of the said Code);
......
shall, in the absence of any reasonable excuse, the burden of proving which excuse shall
lie upon the person so aware, forthwith give information to the nearest Magistrate or
police officer of such commission or intention;
xxx xxx xxx
16. Section 39, Cr.P.C. puts a burden on every person aware of the commission of, or of
the intention of any other person to commit, any offence punishable under Sections 121
to 126 IPC, to forthwith inform to the nearest Magistrate or police officer of such
commission or intention. The exception being if there is a reasonable excuse for not
informing that fact to the nearest Magistrate or police officer of such commission or
intention, the burden of proof lies upon the
@page-SC2426
person so aware of the commission or intention to commit, or that he has in fact given
such information to the nearest Magistrate or police officer. On such proof, the accused
would be exonerated of the duty cast upon him under Section 39, Cr.P.C. The submission
of the learned senior counsel is that because the charge was not framed under Section
123, IPC, the petitioner lost an opportunity of raising a defence and prove that there was a
reasonable excuse for not informing the commission or intended commission of the
offence under Section 123, IPC, to the nearest Magistrate or police officer or that he had
really in fact informed the commission or intention to commit an offence under Section
123, IPC to the nearest Magistrate or police officer. We are not impressed by the
submission of the learned senior counsel for the petitioner. This defence was available to
the petitioner even under Sections 121, 121A and 122 of which he had been expressly
charged with. Thus, it cannot be said that because a specific charge under Section 123,
IPC was not framed, he had lost an opportunity of raising the defence available to him
and thus has been directly and prejudicially affected.
17. After the judgment was delivered by this Court, the petitioner filed a review petition
raising therein the contention that he was denied an opportunity of being heard against
the charge under Section 123, IPC. Neither the charge nor the evidence revealed the
ingredients of an offence under Section 123, IPC and thus his conviction for an offence
under Section 123, IPC is an error apparent on the face of the record and grave
miscarriage of justice. It has resulted in a complete denial of natural justice.
18. Order XL in Part VIII of the Supreme Court Rules, 1966 deals with 'review', under
which an application for review shall be by a petition and shall be filed within 30 days
from the date of the judgment or order sought to be reviewed. It shall set out clearly the
grounds for review. Unless otherwise directed by the court, the review petition so filed
shall be disposed of by circulation without any oral arguments. The petitioner may
supplement his petition by additional written arguments. The court may either dismiss the
petition or direct notice to the opposite party. An application for review was as far as
practicable be circulated to the same Judge or Bench of Judges that delivered the
judgment or order sought to be reviewed. Thus under the rules, a review petition is to be
disposed of by circulation in chambers without any oral arguments. Unless there is a
specific order of the court for placing the review petition in the open court, the matter
shall be decided by circulation without there being any oral arguments, on the basis of the
submissions made in the petition, but the petitioner may supplement his case by
additional written arguments.
19. The scope and ambit of a review petition filed in this Court has been dealt with by a
3-Judge Bench of this Court in M/s. Northern India Caterers (India) Ltd. v. Lt. Governor
of Delhi, AIR 1980 SC 674, as under in para 8 :
"It is well settled that a party is not entitled to seek a review of a judgment delivered by
this Court merely for the purpose of a rehearing and a fresh decision of the case. The
normal principle is that a judgment pronounced by the Court is final, and departure from
that principle is justified only when circumstances of a substantial and compelling
character make it necessary to do so. Sajjan Singh v. State of Rajasthan, (1965) 1 SCR
933 at p. 948. For instance, if the attention of the Court is not drawn to a material
statutory provision during the original hearing, the Court will revise its judgment. G.L.
Gupta v. D.N. Mehta, (1971) 3 SCR 748 at p. 760. The Court may also reopen its
judgment if a manifest wrong has been done and it is necessary to pass an order to do full
and effective justice. O.N. Mohindroo v. Distt. Judge, Delhi, (1971) 2 SCR 11 at p. 27.
Power to review its judgments has been conferred on the Supreme Court by Article 137
of the Constitution, and that power is subject to the provisions of any law made by
Parliament or the rules made under Article 145. In a civil proceeding, an application for
review is entertained only on a ground mentioned in O. XLVII Rule 1 of the Code of
Civil Procedure and in a criminal proceeding on the ground of an error apparent on the
face of the record. (Order XL R. 1, Supreme Court Rules, 1966). But whatever the nature
of the proceeding, it is beyond dispute that a review proceeding cannot be equated with
the original hearing of the case, and the finality of the judgment delivered by the Court
will not be reconsidered except 'where a glaring omission or patent mistake or like grave
AIR 1965 SC 845
AIR 1971 SC 2162
AIR 1971 SC 107
AIR 1975 SC 1500
@page-SC2427
error has crept in earlier by judicial fallibility. 'Chandra Kanta v. Sheikh Habib, (1975) 3
SCR 933."
20
. The review petition of the petitioner raising the ground as mentioned hereinabove was
dismissed by the Court by its order dated 22nd September, 2005. Thus, the contention
raised by the petitioner that his conviction under Section 123, IPC without there being
any charge framed tantamounts to grave miscarriage of justice and is contrary to the
principles of natural justice, has been rejected by the Court. Thereafter, a curative petition
was filed by the petitioner as provided and under the procedure laid down in Rupa Ashok
Hurra (supra). The curative petition was placed in chambers by circulation before the
three seniormost Judges and one Judge who was a member of the Bench which initially
delivered judgment (the other Judge of the Bench Hon. P.V. Reddi, J. being retired) and
after due consideration the curative petition was also rejected by this Court on 12th
January, 2007. In the curative petition also, a specific ground had been raised by the
petitioner that there was violation of the principles of natural justice and manifest
injustice was caused to him because he had not been given opportunity to defend himself
for an offence under Section 123, IPC for which the charge had not been framed. By
rejection of his curative petition, the contention so raised by the petitioner has been
rejected. 2002 AIR SCW 1730
21. In the facts and circumstances of the case, we do not find any ground to entertain the
petition under Article 32 of the Constitution of India. Moreover, for granting the relief
prayed for by the petitioner for entertaining the present writ petition it is necessary to set
aside the judgment delivered by a Division Bench of this Court confirmed by dismissal of
the review petition as also of the curative petition, which cannot be granted as not being
permissible in exercise of the powers under Article 32 of the Constitution of India.
22. That being the case, we do not find any reason to entertain the present petition and
grant relief as prayed for by the petitioner. The writ petition is, accordingly, dismissed.
Petition dismissed.
AIR 2008 SUPREME COURT 2427 "Heena Kausar v. Competent Authority"
(From : Bombay)*
Smt. Heena Kausar v. Competent Authority.
(A) Narcotic Drugs and Psychotropic Substances Act (61 of 1985), S.68C, Proviso -
LIMITATION - CONFISCATION - APPELLATE TRIBUNAL - RES JUDICATA -
Forfeiture of property - Limitation - Confiscation of flats and Bank accounts in name of
wife of detenu - Petition against - Dismissed in regard to confiscation of flats but matter
in relation to Bank accounts remanded to Appellate Tribunal - During pendency whereof,
proviso to S.68C providing period of limitation for initiation of proceedings for
confiscation was amended - Same by itself would not give rise to another cause of action
to enable appellant to raise contentions which he could and ought to have raised in earlier
proceedings.
Civil P.C. (5 of 1908), S.11. (Para 10)
(B) Narcotic Drugs and Psychotropic Substances Act (61 of 1985), S.68C, Proviso -
NARCOTIC DRUGS - EQUALITY - Forfeiture of properties - Proceedings against wife
of detenu - During its pendency Proviso to S.68-C amended to provide period of
limitation for initiation of forfeiture proceedings - Same by itself would not attract wrath
of Art.14 of Constitution - Proviso would not be applicable to said proceedings.
(C) Constitution of India, Art.14 - EQUALITY - AMENDMENT - Constitutionality of
Provision - Amendment' of provision of Act by Parliament - Is matter of legislative policy
- Mere inequality cannot be sole factor for determining constitutionality of amended
provision.
A law is amended by the Parliament having regard to its experience. It is a matter of
legislative policy and for that purpose mere inequality cannot be the sole factor for
determining the constitutionality of the impugned provision. A law may be constitutional
even though it affects an individual. There exists a presumption in favour of the
@page-SC2428
constitutionality of an enactment. The burden of proof that the legislation is
unconstitutional is upon the person who attacks it, save and except the cases where, inter
alia, arbitrariness appears on the face of the statute and the burden of proof in regard to
constitutionality of the statute is on the State. The principle of equality would not mean
that every law must have universal application for all persons who, by nature, attainment
or circumstances, are in the same position. (Paras 14, 15)
2007 AIR SCW 3529 : AIR 2007 SC 1948 : 2007 Lab IC 2537 : 2007 (3) AIR Jhar R 620
(Ref.) 16
AIR 1979 SC 478 (Ref.) 21
AIR 1975 SC 1030 : 1975 Cri LJ 874 (Ref.) 18
AIR 1974 SC 1300 : 1974 Lab IC 841 (Ref.) 18
AIR 1960 SC 457 21
AIR 1958 SC 538 (Ref.) 17
AIR 1952 SC 75 : 1952 Cri LJ 510 (Ref.) 17
Raju Ramchandran, Sr. Advocate, G.S. Pikale, F.C. Agrawala, Rishi Agrawala, Amit
Sharma and Saurabh S. Sinha, for Appellant; Ms. Sushma Suri, for Respondent.
* Cri. W. P. No. 1283 of 2002, D/- 27-11-2002 (Bom).
Judgement
S. B. SINHA, J. :- Validity of the proviso appended to Section 68C of the Narcotic Drugs
and Psychotropic Substances Act, 1985 (NDPS Act) is in question in this appeal which
arises out of a judgment and order dated 27-11-2002 passed by a Division Bench of the
High Court of Judicature at Bombay.
2. The basic fact of the matter is not in dispute.
3. Appellant herein is wife of one Iqbal Mohammed Memon. An order of detention was
passed against him under the provisions of the Prevention of Illicit Traffic in Narcotic
Drugs and Psychotropic Substances Act, 1988 (PINDPS Act) by the State of
Marharashtra. Allegedly, both the appellant and her husband left India in or about the
year 1991. Appellant has not yet come back to India. Her husband admittedly had not
been taken in custody pursuant to the order of detention. Admittedly again, Appellant has
several properties in her name. A proceeding was initiated against her in terms of Chapter
V-A of the Act, wherefor, she was served with a show cause notice dated 9-5-1995 asking
her to furnish the proof and/or source of income and/or the channels from which the
assets being Flat Nos. 501 and 502A along with stilt parking No. 19 in Milton Apartments
at Juhu Tara Road, Santacruz (W) had been acquired as also to show cause why the said
properties should not be held to be "illegally acquired properties" and forfeited by the
Central Government under the Act.
4. An appeal thereagainst was preferred before the Appellate Tribunal. By an order dated
10-2-1999, the properties were directed to be confiscated.
A writ petition was filed by her before the Bombay High Court which was marked as
Writ Petition No. 1867 of 1999. The said writ petition was dismissed by a judgment and
order dated 15-12-1999 insofar as the order of confiscation of flat No. 501 and 502 and
stilt parking in Milton Apartments were concerned. However, in regard to the
confiscation of three bank accounts, the matter was remitted to the Appellate Tribunal for
its decision.
5. Proviso appended to Section 68-C prior to its amendment stood as follows :
"Provided that no property shall be forfeited under this Chapter, if such property was
acquired by a person to whom this Act applies before a period of six years from the date
on which he was charged for an offence relating to illicit traffic."
Section 68-C, after the amendment, reads as under :
"Section 68C - Prohibition of holding illegally acquired property - (1) As from the
commencement of this Chapter, it shall not be lawful for any person to whom this
Chapter applies to hold any illegally acquired property either by himself or through any
other person on his behalf.
(2) Where any person holds any illegally acquired property in contravention of the
provisions of sub-section (1), such property shall be liable to be forfeited to the Central
Government in accordance with the provisions of this Chapter :
Provided that no property shall be forfeited under this Chapter if such property was
acquired, by a person to whom this Act applies, before a period of six years from the date
he was arrested or against whom a warrant or authorisation of arrest has been
@page-SC2429
issued for the commission of an offence punishable under this Act or from the date the
order or detention was issued, as the case may be."
Indisputably, the Act was amended by Act No.9 of 2001 with effect from 2-10-2001.
6. An application purported to be for rectification having regard to the said amendment,
was filed by the appellant before the Appellate Tribunal, inter alia, praying therein for
setting aside its order dated 15-2-1999 as also the order of the competent authority dated
20-10-1997.
7. In the said purported application for rectification, the appellant raised the following
contentions :
1. That prior to coming into force of the said Act, the Competent Authority had no
jurisdiction to initiate any proceeding under the said Act against a citizen of India who
had been residing out of the country.
2. That the proviso, as it stood prior to amendment, was ultra vires Article 14 of the
The said application was dismissed by the Appellate Tribunal by an order dated 20-6-
2002. A writ petition was filed there against before the Bombay High Court which was
marked as writ petition No. 1283 of 2002.
By reason of the impugned judgment, the said writ petition has been dismissed.
8. Mr. Raju Ramachandran, learned senior counsel appearing on behalf of the appellant,
at the outset, did not press the first contention raised before the Appellate Authority as
also before the High Court.
The learned counsel, however, would submit that a classification made in a statute by
way of under inclusion would not validate the proviso to Section 68E of the Act as it
stood prior to 2001 insofar as there did not exist any valid or cogent reason for not
providing the period of limitation of six years in respect of a person who was charged for
commission of an offence relating to illicit traffic vis-a-vis a person who is sought to be
detained under a preventive detention.
9. The learned counsel would submit that the show cause notice did not contain any
reason which was required to be recorded in terms of Section 68E read with Section 68H
of the NDPS Act, and, thus, the impugned judgment cannot be sustained.
Admittedly, the order of the Appellate Authority was the subject matter of the writ
petition. The contentions raised herein were not raised before the said Authority or before
the High Court. The order of the High Court dated 15-12-1999 attained finality. The flats
in question stood forfeited to the State Government. The said proceedings cannot be
permitted to be reopened.
10. Only because in relation to the bank accounts, the matter was remanded, during
pendency whereof, the proviso appended to Section 68C was inserted, the same by itself,
in our opinion, would not give rise to another cause of action so as to enable the appellant
to raise the contentions which he could and ought to have raised in the earlier
proceedings.
The principle of 'Constructive Res Judicata', it is trite, applies also to a writ proceeding.
Furthermore, admittedly such a contention has not been raised even in the second writ
application. The documents which were necessary to be taken into consideration for
determining the said question are also not before us. We, therefore, are of the opinion that
it is not possible for us to go into the said question.
11. The 'Proviso' appended to Section 68C was in the statute book since 1989. Appellant's
husband was served with an order of detention as far back as in the year 1994. The notice
under Section 68D of the Act was issued in the year 1995.
12. Only because at a later stage, a period of limitation was prescribed for initiation of
proceedings for forfeiture of the properties, the same, in our opinion, by itself would not
be sufficient to arrive at a conclusion that the same attracts the wrath of Article 14 of the
13. It is now well settled that validity of a statute can be upheld if there exists a valid and
reasonable classification therefor, being based upon the substantial distinction bearing a
reasonable and just relation with the object sought to be attained.
14. In this regard, we may notice some well settled legal principles. A law may be
constitutional even though it affects an individual. There exists a presumption in favour
of the constitutionality of an enactment. The burden of proof that the legislation is
unconstitutional is upon the person who attacks it, save and except the cases where, Inter
alia, arbitrariness appears on the face of the statute and the burden of
@page-SC2430
proof in regard to constitutionality of the statute is on the State. The principle of equality
would not mean that every law must have universal application for all persons who, by
nature, attainment or circumstances, are in the same position.
15. A law is amended by the Parliament having regard to its experience. It is a matter of
legislative policy and for that purpose mere inequality cannot be the sole factor for
determining the constitutionality of the impugned provision.
16
. Whereas Article 14 forbids classification, it is trite, it does not forbid reasonable

classification. {See M.P. Rural Agriculture Extension Officers Association v. State of
M.P. and Anr. [(2004) 4 SCC 646]; and State of Bihar and Ors. v. Bihar State +2
Lecturers Associations and Ors. [(2007) 7 SCALE 697]}. 2004 AIR SCW 2180
2007 AIR SCW 3529
17
. This court in State of West Bengal v. Anwar All Sarkar [AIR 1952 SC 75] as also Ram
Krishna Dalmia v. Shri Justice S.R. Tendolkar and Ors. [1959 SCR 279], categorically
laid down the twin test of classification. The classification, however, should be based on
reasonable and rational differentia and should not be arbitrary. AIR 1958 SC 538
18
. It is not a case where validity of the statute itself is in question. Ordinarily, a statute
providing for 'under inclusion' would not be held to be attracting the wrath of Article 14.
A Constitution Bench of this Court held so in State of Gujarat and Anr. v. Shri Ambika
Mills Ltd. and Anr. [(1974) 4 SCC 656], in the following words : AIR 1974 SC 1300,
(Paras 53 to 55)
"54. A reasonable classification is one which includes all who are similarly situated and
none who are not. The question then is : what does the phrase "similarly situated" mean?
The answer to the question is that we must look beyond the classification to the purpose
of the law. A reasonable classification is one which includes all persons who are similarly
situated with respect to the purpose of the law. The purpose of a law may be either the
elimination of a public mischief or the achievement of some positive public good.
55. A classification is under-inclusive when all who are included in the class are tainted
with the mischief but there are others also tainted whom the classification does not
include. In other words, a classification is bad as under-inclusive when a State benefits or
burdens persons in a manner that furthers a legitimate purpose but does not confer the
same benefit or place the same burden on others who are similarly situated. A
classification is over-inclusive when it includes not only those who are similarly situated
with respect to the purpose but others who are not so situated as well. In other words, this
type of classification imposes a burden upon a wider range of individuals than are
included in the class of those attended with mischief at which the law aims. Herod
ordering the death of all male children born on a particular day because one of them
would some day bring about his downfall employed such a classification.
56. The first question, therefore, is, whether the exclusion of establishments carrying on
business or trade and employing less than 50 persons makes the classification under-
inclusive, when it is seen that all factories employing 10 or 20 persons, as the case may
be, have been included and that the purpose of the law is to get in unpaid accumulations
for the welfare of the labour. Since the classification does not include all who are
similarly situated with respect to the purpose of the law, the classification might appear,
at first blush, to be unreasonable. But the Court has recognised the very real difficulties
under which legislatures operate difficulties arising out of both the nature of the
legislative process and of the society which legislation attempts perennially to re-shape -
and it has refused to strike down indiscriminately all legislation embodying classificatory
inequality here under consideration. Mr. Justice Holmes, in urging tolerance of under-
inclusive classifications, stated that such legislation should not be disturbed by the Court
unless it can clearly see that there is no fair reason for the law which would not require
with equal force its extension to those whom it leaves untouched. What, then, are the fair
reasons for non-extension? What should a court do when it is faced with a law making an
under-inclusive classification in areas relating to economic and tax matters? Should it, by
its judgment, force the legislature to choose between inaction or perfection?"
The said ratio was followed by this Court in The Superintendent and Remembrancer
AIR 1975 SC 1030, Paras 9 and 11
@page-SC2431
of Legal Affairs, West Bengal v. Girish Kumar Navalakha and Ors. [(1975) 4 SCC 754,
holding :
"8. Oftentimes the courts hold that under-inclusion does not deny the equal protection of
laws under Article 14. In strict theory, this involves an abandonment of the principle that
classification must include all who are similarly situated with respect to the purpose. This
under-inclusion is often explained by saying that the legislature is free to remedy parts of
a mischief or to recognize degrees of evil and strike at the harm where it thinks it most
acute."
It was furthermore held :
"10. There are two main considerations to Justify an under-inclusive classification. First,
administrative necessity. Second, the legislature might not be fully convinced that the
particular policy which it adopts will be fully successful or wise. Thus to demand
application of the policy to all whom it might logically encompass would restrict the
opportunity of a State to make experiment. These techniques would show that some
sacrifice of absolute equality may be required in order that the legal system may preserve
the flexibility to evolve new solutions to social and economic problems. The gradual and
piecemeal change is often regarded as desirable and legitimate though in principle it is
achieved at the cost of some equality. It would seem that in fiscal and regulatory matters
the court not only entertains a greater presumption of constitutionality but also places the
burden on the party challenging its validity to show that it has no reasonable basis for
making the classification."
19. The statute deals with an economic aspect of the matter. The purported object for
which such a statute has been enacted must be noticed in interpreting the provisions
thereof. The nexus of huge amount of money generated by drug trafficking and the
purpose for which they are spent is well known. Harsh laws, not only for punishing the
drug traffickers but also for preventive detention, if the conditions therefor are satisfied,
were made. Necessity was felt for introduction of strict measures so that money earned
from the drug trafficking by the persons concerned may not continue to be invested, inter
alia, by purchasing moveable or immoveable properties not only in his own name but
also in the names of his near relatives.
This case, itself throws sufficient light as to why the Parliament thought it fit to exclude
the applicability of the provisions of the period of limitation in the matter of initiation of
proceedings for forfeiture of properties.
20. The Union of India and the State of Maharashtra have not been able to serve even the
order of detention upon the husband of the appellant. There may be a large number of
other cases of that nature. A person might have committed only one time offence, another
not only may be an offender but also might have been indulging in drug trafficking for a
long time. Whereas in the former an order of preventive detention may not be necessary,
in case of the latter, it may be found to be necessary. The distinction although appears to
be fine, but real.
21
. This Court in Re : The Special Courts Bill, 1978 [(1979) 1 SCC 380, held that the
offences which were emergency related form a class of offences, stating : AIR 1979 SC
478, (Paras 73)
"72. As long back as in 1960, it was said by this Court in Kangsari Haldar that the
propositions applicable to cases arising under Article 14 "have been repeated so many
times during the past few years that they now sound almost platitudinous". What was
considered to be platitudinous some 18 years ago has, in the natural course of events,
become even more platitudinous today, especially in view of the avalanche of cases
which have flooded this Court. Many a learned Judge of this Court has said that it is not
in the formulation of principles under Article 14 but in their application to concrete cases
that difficulties generally arise. But, considering that we are sitting in a larger Bench than
some which decided similar cases under Article 14, and in view of the peculiar
importance of the questions arising in this reference, though the questions themselves are
not without a precedent, we propose, thoughundoubtedly at the cost of some repetition, to
state the propositions which emerge from the judgments of this Court insofar as they are
relevant to the decision of the points which arise for our consideration. Those
propositions may be stated thus : AIR 1960 SC 457
The Court noticed as many as thirteen propositions, some of which are :

"(2) The State, in the exercise of its
@page-SC2432
governmental power, has of necessity to make laws operating differently on different
groups or classes of persons within its territory to attain particular ends in giving effect to
its policies, and it must possess for that purpose large powers of distinguishing and
classifying persons or things to be subjected to such laws.
(3) The constitutional command to the State to afford equal protection of its laws sets a
goal not attainable by the invention and application of a precise formula. Therefore,
classification need not be constituted by an exact or scientific exclusion or inclusion of
persons or things. The courts should not insist on delusive exactness or apply doctrinaire
tests for determining the validity of classification in any given case. Classification is
justified if it is not palpably arbitrary.
(4) The principle underlying the guarantee of Article 14 is not that the same rules of law
should be applicable to all persons within the Indian territory or that the same remedies
should be made available to them irrespective of differences of circumstances. It only
means that all persons similarly circumstanced shall be treated alike both in privileges
conferred and liabilities imposed. Equal laws would have to be applied to all in the same
situation, and there should be no discrimination between one person and another if as
regards the subject-matter of the legislation their position is substantially the same.
(5) By the process of classification, the State has the power of determining who should be
regarded as a class for purposes of legislation and in relation to a law enacted on a
particular subject. This power, no doubt, in some degree is likely to produce some
inequality; but if a law deals with the liberties of a number of well defined classes, it is
not open to the charge of denial of equal protection on the ground that it has no
application to other persons. Classification thus means segregation in classes which have
a systematic relation, usually found in common properties and characteristics. It
postulates a rational basis and does not mean herding together of certain persons and
classes arbitrarily.
XXX XXX XXX
(11) Classification necessarily implies the making of a distinction or discrimination
between persons classified and those who are not members of that class. It is the essence
of a classification that upon the class are cast duties and burdens different from those
resting upon the general public. Indeed, the very idea of classification is that of
inequality, so that it goes without saying that the mere fact of inequality in no manner
determines the matter of constitutionality."
22. In view of the settled legal position as noticed above, we are of the opinion that no
case has been made out for us to invoke Article 14 of the Constitution of India so as to
hold that the proviso amended in the year 2001 shall also apply to the present category of
cases. Accordingly, the appeal is dismissed with costs. Counsel's fee assessed to
Rs.50,000/- (Rupees fifty thousand only).
Appeal dismissed.
AIR 2008 SUPREME COURT 2432 "Suresh v. Yeotmal Dist. Central Co-op. Bank Ltd."
(From : Bombay)*
Suresh v. Yeotmal Dist. Central Co-op. Bank Ltd. and Anr.
(A) Civil P.C. (5 of 1908), O.1, R.9 - CIVIL PROCEDURE - Non-joinder of necessary
parties - Petition challenging promotion - Petitioner not impleading candidates higher up
in seniority - Petition cannot be adjudicated in their absence.
(2006) 12 SCC 724, Rel. on. (Para 12)
(B) Maharashtra Co-operative Societies Act (24 of 1961), S.74(1) - Bombay Industrial
Relation Act (11 of 1947), S.42(1) - CO-OPERATIVE SOCIETIES - INDUSTRIAL
DISPUTE - Notice of change - Necessity - Registrar of Societies, laying down fresh
qualifications for managerial post, in exercise of statutory powers under 1961 Act 2 -
Notice of change not necessary since post was in supervisory cadre. (Paras 16, 17)
(C) Maharashtra Co-operative Societies Act (24 of 1961), S.74 - CO-OPERATIVE
SOCIETIES - PROMOTION - Promotion - Post of Manager - Not exclusively
promotional post - Respondent appointed as Agriculture Development Officer - Fulfilling
requisite educational qualification - Promotion of respondent as
@page-SC2433
Manager - Cannot be challenged on ground that post of Agricultural Development Officer
is not feeder post for promotion to post of Senior Manager. (Paras 10, 19)
2006 AIR SCW 2582 : AIR 2006 SC 2432 : 2006 Lab IC 2237 : 2006 (4) ALJ 24512
(2006) 12 SCC 724 (Rel. on) 12
AIR 1985 SC 167 : 1985 Lab IC 1196 12
I. Venkatnarayan, Sr. Advocate, Satyajit A. Desai, Amol N. Suryawanshi, Ms. Anagha S.
Desai, for Appellant; R.S. Kurekar, Venkateswara Rao Anumolu, Sudhanshu S.
Choudhari, Sunil Kumar Verma, for Respondents.
* W. P. No. 3286 of 2006, D/-12-03-2007 (Bom).
Judgement
S. B. SINHA, J :- Leave granted.
2. Application of a purported circular letter dated 6-08-1996 issued by the Registrar of the
Cooperative Societies, State of Maharashtra is in question in this appeal.
3. Respondent No. 1 is a cooperative society registered under the Maharashtra
Cooperative Societies Act, 1960 (for short "the Act"). The Society framed rules
prescribing terms and conditions of service of its employees. Service Rules framed by the
respondent No. 1 Cooperative Society were approved by the Registrar.
4. We are concerned with the post of Higher Grade: Manager; the qualification wherefor
is laid down as under :
"The candidate should be a postgraduate and should be graduate in Economics or Law
also he should have experience in the field of Banking and Co-operative Sector.
Preference will be given if he has passed G.D.C. and A exam or has obtained Diploma in
Banking."
5. The controversy between the parties hereto arose in the following fact situation :
Appellant was appointed in the post of a clerk on 14-12-1974. He was confirmed in his
service on or about 21-04-1994. Respondent No. 2, however, was appointed as
Agricultural Development Officer on 26-02-1979 as a direct recruit. He was brought on
the Select List for the purpose of promotion to the post of Manager in 1994. The name of
the appellant did not figure therein. A seniority list was published on 1-04-1995 wherein
the name of the appellant figured at Sl. No. 4; whereas the name of the respondent No. 2
figured at Sl. No. 1.
6. Respondent No. 2 was promoted to the post of Senior Manager on or about 3-10-1998.
Questioning the said seniority list as also the promotion of the respondent No. 2, the
appellant raised a dispute before the Cooperative Court, Amravati. Issues were framed
having regard to the rival contentions of the parties.
The following findings were recorded by the Cooperative Court in respect of Issue Nos.
(5), (5A) and (6) :
"(5) Whether the disputant is entitled to declaration that the name of opponent No. 2 is to
be removed from the seniority list of the Select Grade Officers, in compliance with the
Service Rules. No
(5A) Whether the disputant is entitled to declaration that promotion order issued on dt. 3-
10-1998 of opponent No. 2 is liable to be quashed ? Yes
(6) Whether the disputant is entitled to promotion on the post of Manager from deemed
date ? Yes"
As regards, Issue No. 6, the learned Cooperative Court opined :

"48. As far as concern about the seniority list published by the opponent No. 1 Bank
Exh.37 in which the name of the disputant is at serial No. 4, and it is already held that the
opponent No. 2 who stood at serial No. 1 is not eligible or qualified for the post of
Manager. As far as about the persons who stood at Serial Nos. 2 and 3 is concern, at serial
No. 2 one M.R. Kadam is there who is having the qualification of B.Com, H.D.C. and as
per the service Rules for the post of Manager the employee should be post graduate and
having the graduation degree in Economics or in Law. Therefore, those persons are also
not having the qualification for the post of Manager, and the next person is the disputant
who is having the qualification as per the service Rules who is M.A. Economics, B.Com.
LL.B. and G.D.C. and A., D.C.B. Therefore, the disputant is entitled for the promotion on
the post of Manager from the deemed date. Hence, I answer issue No. 6 in the
affirmative."
The Cooperative Court allowed the said application of the appellant by a judgment and
order dated 16-08-2005 opining that the
@page-SC2434
respondent No. 2 did not possess the requisite qualification.
7. Respondent No. 1 preferred an appeal thereagainst before the Cooperative Appellate
Court, which by reason of an order dated 21-06-2006 was allowed, stating :
"15. Moreover, it is pertinent to note that the right of the opponent No. 2 to be in the
select grade candidates has been maintained by the learned Trial Judge by recording
negative finding on Issue No. 5 in his judgment. When the Issue No. 5 is recorded in the
negative by the Trial Judge indirectly he has accepted the right of the opponent No. 2 to
be in the select grade, who has already placed on Sr., No. 1 in the list published in the
year 1997 and which remain undisturbed in the proceeding before the Industrial Court
filed by the Union long back earlier to the present dispute.
*** *** ***
18. As per the Government Circular dated 29th February 1988 for the post of Manager,
the requisite qualification is laid down Degree of recognized University in Economics/
Commerce/ Chartered Accountant and Diploma in Cooperation and Accountancy/
Diploma, in Cooperative Business Management. If, the above mentioned qualification as
laid down in the Government Circular for the post of Manager is considered, I find it is
rightly submitted by the Advocate Shri Parakhi that opponent No. 2 is having Master's
degree with subject of Economics i.e. M.Sc (Agril.) having Economics subject and he
was also having Diploma in cooperative Banking. As per the said Circular dated 29th
February, 1988, the educational qualification as are laid down with several Degrees, if
one of those is possessed, the person can be posted to the post of Manager. Here, the
opponent No. 2 is having Degree/ Master's Degree i.e. M.Sc. (Agri.) having Economics
subject therein and in addition to it he is also having independent educational
qualification as Diploma in Cooperative Banking. His appointment itself is in select
grade. So, it cannot be said that he does not possess a qualification to bring him within
the select list candidate arid also to be appointed to the post of Manager. The another
letter dated 6-8-1996 issued by the Commissioner for Cooperation, Pune also is referred
by Advocate Parakhi from record (Record Page No. 395). As per the said Circular, a
person in the post of officer is required to possess any one of the qualification as laid
down in Paragraph 2 thereto amongst which D.C.B. is one of the educational
qualification and it is possessed by the opponent No. 2. So though the disputant is having
Law Degree and other several Diploma's in addition to his Commerce Degree and M.A.
Degree, it cannot be said that the educational qualification possessed by the opponent No.
2 is not adequate which is required for the post of Manager. Having excess educational
Diploma and Degrees to particular person or in our case to the disputant, cannot debar the
opponent No. 2 from the category of the select list candidates and cannot debar the
opponent No. 2 on the post of Manager. As such the Notification issued by the
Commissioner under Section 74 of the M.C.S. Act, 1960 has to be accepted. In view of
the said notification, I hold that the opponent No. 2 is having requisite educational
qualification for the post of Manager. So, submission made by the disputant cannot be
accepted that he is not having educational qualification for the post of Manager so, I hold
that the learned Trial Judge has erroneously held that the opponent No. 2 is not eligible
for promotion to the post of Manager as per the service rules of the bank."
8. A writ petition preferred thereagainst by the appellant has been dismissed by reason of
9. At the outset, we may notice that on or about 6-08-1996, the Registrar Cooperative
Societies issued a circular letter purported to be in exercise of its power conferred upon it
under Section 74(1) of the Act, inter alia stating :
"1. For technical post and above-mentioned post the prescribed qualification will not be
applicable. For the technical post the concerned Societies can make changes in their
service rules regarding the qualifications of the appointment and promotion of the
Officers.
*** *** ***
7. As there are changes in the basic Service Rules, the concern Societies shall take action
as per provisions under the Bombay Industrial Relation Act to give notice regarding the
said change."
Indisputably such a notice was issued only on 24-09-2001.
10. Mr. I. Venkatnarayan, learned senior counsel appearing on behalf of the appellant,
submitted that the promotion of the
@page-SC2435
respondent No. 2 to the post of Manager was illegal as the post of Agricultural
Development Officer was not the feeder post therefor. In any view of the matter, it was
urged, having regard to the provisions contained in sub-section (1) of Section 42 of the
Bombay Industrial Relations Act, 1946, any change in the service conditions was
required to be preceded by a proper notice as was advised by the Registrar of Cooperative
Societies in his order dated 6-08-1996 and as such a notice was issued only on 24-09-
2001, the promotion of the respondent No. 2 must be held to be illegal.
11. The learned counsel appearing on behalf of the respondents, however, would support
the impugned Judgment.
12. Respondent No. 1 is a cooperative society. It has its own rules and bye-laws. The
service rules framed by the respondent No. 1 stand approved by the Registrar. We have
noticed hereinbefore that in the seniority list published in the year 1995, the position of
the appellant was at Sl. No. 4. Those candidates whose names appeared at Sl. Nos. 2 and
3 were not impleaded as parties in the said proceeding. In their absence, the dispute could
not have been effectively adjudicated upon.
This Court in Rashmi Mishra M.P. Public Service Commission and others [(2006) 12
SCC 724], observed: AIR 1985 SC 167, (Para 28)
"16. In Prabodh Verma this Court held: (SCC pp. 273-74, para 28) "The first defect was
that of non-joinder of necessary parties. The only respondents to the Sangh's petition
were the State of Uttar Pradesh and its officers concerned. Those who were vitally
concerned, namely, the reserve pool teachers, were not made parties not even by joining
some of them in a representative capacity, considering that their number was too large for
all of them to be joined individually as respondents. The matter, therefore, came to be
decided in their absence. A High Court ought not to decide 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 by some of them being before it as respondents
in a representative capacity if their number is too large, and, therefore, the Allahabad
High Court ought not to have proceeded to hear and dispose of the Sangh's writ petition
without insisting upon the reserve pool teachers being made respondents to that writ
petition, or at least some of them being made respondents in a representative capacity,
and had the, petitioners refused to do so, ought to have dismissed that petition for non-
joinder of necessary parties."
(See also All India SC and ST Employees' Assn. v. A. Arthur Jeen and Indu Shekhar
Singh v. State of U.P.)" 2001 AIR SCW 1720
2006 AIR SCW 2582
The dispute raised by the appellant before the Cooperative Appellate Court, therefore,
was not maintainable. It was so held also by the High Court.
13. On that ground alone, this appeal must fail.
14. However, as the parties have addressed us at some length on the merit of the matter,
we may as well deal with the contentions raised at the bar.
15. There is nothing on record to show that the provisions of the Bombay Industrial
Relations Act, 1946 would be attracted in the matter of laying down qualification for the
post of Manager of a Bank. If the provisions of the said Act are not applicable, the same
ipso facto cannot apply only because the Registrar of the Cooperative Societies thought
so.
16. It is one thing to say that the respondent No. 2 did not possess essential qualification
for holding the post but it is another thing to say that the Registrar had exercised its
jurisdiction under Section 74 of the Act.
Section 74 (1) of the Act reads as under:
"74. Qualification and appointment of Manager, Secretary and other Officers of societies
and Chief Officer and Financial Officer for certain societies.
(1) The qualifications for appointment of the Chief Executive Officer, Finance Officer,
Manager, Secretary, Accountant or any other Officer of a society or a class of societies
and his emoluments and perquisities shall be such as may be determined by the Registrar,
from time to time."
17. In terms of the said provision, indisputably, the Registrar could exercise its
jurisdiction for laying down the qualification inter alia for the post of Manager. When
such qualifications are laid down by the Registrar, he exercises a statutory power. While
exercising such a statutory power,
@page-SC2436
requirement to comply with the provisions of another statute, viz., issuance of notice of
change in terms of the Bombay Industrial Relations Act, 1946 was not necessary. They
were meant to be done for the industrial workers and not for those who exercise
supervisory jurisdiction in a co-operative society.
18. We have noticed hereinbefore that the Registrar of Co-operative Societies in its order
dated 6-08-1996 merely said that for technical posts, the prescribed qualification would
not be applicable and the concerned societies can make changes in their Service Rules
regarding qualification of appointment and promotion. Only when changes in the Service
Rules were required to be made, the respective societies were not given a free hand to do
so. It is only from that angle notice of change was, if at all, required to be issued.
19. Respondent No. 2 fulfills the prescribed educational qualification. It was found by the
appellate court. It is not the case of the appellant that the post of Manager could be filled
up only by way of promotion. Such a post could be filled up also by direct recruitment.
For the said purpose, we may assume that the post of Agricultural Development Officer is
not the feeder post for promotion to the post of Senior Manager, although no rule in that
behalf has been placed before us.
20. We, therefore, are of the opinion that no case has been made out for interfering with
the impugned judgments of the Co-operative Appellate Court as also the High Court. The
appeal is dismissed accordingly. No costs.
Appeal dismissed.
AIR 2008 SUPREME COURT 2436 "Ashok Kumar Chaudhary v. State of Bihar"
(From : Patna)*
-2008.
Ashok Kumar Chaudhary and Ors. v. State of Bihar.
(A) Evidence Act (1 of 1872), S.3 - EVIDENCE - WITNESS - Interested witness -
Relationship per se does not affect credibility of witness - Merely because witness
happens to be a relative of victim of crime, he/she cannot be characterised as "interested"
witness.
AIR 1953 SC 364, AIR 1965 SC 202, AIR 1974 SC 276, AIR 1973 SC 2407, 2003 AIR
SCW 469 and 20O7 AIR SCW 1835, Relied on. (Para 7)
(B) Criminal P.C. (2 of 1974), S.154 - FIR - F. I. R. - Delay in lodging - Prosecution case
cannot be thrown out if delay is properly and satisfactorily explained.
2001 AIR SCW 1903 and 2006 AIR SCW 5675, Relied on. (Para 14)
(C) Evidence Act (1 of 1872), S.3 - EVIDENCE - WITNESS - ASSAULT - Public
witness - Assault - Non-examination of public witness by itself does not give rise to
adverse inference against prosecution when evidence of injured witness is reliable.
(Para 7)
(D) Penal Code (45 of 1860), S.324, S.307 - HURT - ATTEMPT TO MURDER -
ASSAULT - EVIDENCE - Assault - Proof - Appellants allegedly dragged victim and
assaulted him and others - Evidence of injured witnesses was reliable - They had no
animosity towards appellants - In view of their consistent evidence, non-examination of
public witness would be immaterial - Considering distance of police station, delay in
lodging F. I. R. was not fatal - Testimony of doctors about weapon used by appellants was
trustworthy though there was some variance in Fardbeyan - Conviction of appellants to
proper - However, sentence of 2 months' R. I. to two appellants and three years' R. I. to
third appellant reduced to fine of Rs. 20,000/-, and one year R. I. (Paras 12, 17, 19, 21,
22)
2007 AIR SCW 1835 : AIR 2007 SC (Supp) 100 : 2007 Cri LJ 1819 : 2007 (3) AIR Bom
R 482 (Rel. on) 11
2006 AIR SCW 5675 : AIR 2007 SC 155 : 2007 (1) AIR Jhar 635 : 2007 (1) AIR Bom R
164 (Rel. on) 16
@page-SC2437

AIR 1965 SC 202 : 1965 (1) Cri LJ 226 (Rel. on) 9
P.N. Lekhi, Sr. Advocate, Samar Bansal, Lokesh Kumar and M.K. Garg, for Appellants;
Manish Kumar and Gopal Singh, for Respondent.
* Cri. A. No. 141 of 1992, D/-01-12-2006 (Pat.)
Judgement
D. K. JAIN, J. :- Leave granted.
2. The three appellants in this appeal, namely, Ashok Kumar Chaudhary, Kailash
Chaudhary and Baiju Chaudhary (hereinafter referred to as appellants A-1 to A-3
respectively) arrayed as accused Nos.1, 3 and 2 respectively in the charge-sheet, faced
trial in Sessions Trial Case No. 187 of 1989, for having committed offences punishable
under Sections 324 and 307 read with Section 34 of the Indian Penal Code, 1860 (for
short the I.P.C.). The trial court found appellants A-1 and A-3 guilty of offence under
Section 324, I.P.C. and sentenced them to undergo rigorous imprisonment for two months
each. However, appellant, A-2 was found guilty of offence under Section 307, I.P.C. and
was sentenced to undergo rigorous imprisonment for three years. All the three convicts
preferred common appeal to the High Court of Judicature at Patna. The High Court
upheld the decision of the trial court, which has resulted in the present appeal.
3. The case of the prosecution in brief was that on 17th July, 1988 at about 6 p.m. the
informant (PW-5) along with Bijoy Kumar Sanyal, Hardeo Chaudhary and Kishan Singh
had gone to Dharampur Haat (Market) to make some purchases. They saw the appellants
dragging a person out of the Haat towards the road. They along with some other
bystanders raised halla (shouting), whereupon the informant and others reached the spot
and tried to rescue the victim, who turned out to be the son of the said Hardeo Chaudhary.
Meanwhile, appellant, A-3 who was carrying a Hasua and appellants, A-1 and A-2 who
were carrying daggers assaulted the informant and other persons. They were badly
injured. Hardeo Chaudhary sustained injuries in his abdomen whereas Bijoy Kumar
Sanyal sustained dagger injuries in his chest and thigh and Kishan Singh sustained
injuries on his head. The motive of occurrence was given as previous enmity.
4. Fardbeyan of the informant was recorded by the A.S.I, of Pirbahore police station and
was forwarded on the next day to the officer-in-charge of Bidupur police station within
whose jurisdiction the occurrence had taken place. On the basis of the Fardbeyan, a
formal F.I.R. was registered. After completion of investigation, charge-sheet was
submitted against the appellants under Sections 324, 307 read with Section 34, I.P.C.
5. Out of the total nine witnesses examined by the prosecution to establish its case, five
were the persons who had been injured in the assault. Relying on the testimony of the
injured witnesses, the trial court convicted the appellants for the offences aforenoted. As
noted above, conviction and sentences awarded to the appellants have been affirmed by
the High Court.
6. Mr. P.N. Lekhi, learned senior counsel appearing for the appellants has assailed the
convictions on a number of grounds. Firstly, it is submitted that the incident having taken
place at a public place in the evening, the prosecution ought to have examined some
independent witnesses. Having failed to do so, the evidence of PW-4 and PW-5 should be
discarded as being closely related to the victim-Ajay Kumar, they were "highly
interested" and prone to falsely implicate the appellants, particularly when PW-4 was also
involved in civil and criminal litigation with one of the appellants herein.
7. We are not impressed with the argument. Though it is true that the incident having
taken place near the market around 6 p.m. on 17th July, 1988, the prosecution should
have attempted to secure public witnesses who had witnessed the incident, but at the
same time one cannot lose sight of the ground realities that the members of the public are
generally insensitive and reluctant to come forward to report and depose about the crime
even though it is committed in their presence. In our opinion, even otherwise it will be
erroneous to lay down as a rule of universal application that non-examination of a public
witness by itself gives rise to an adverse inference against the prosecution or that the
testimony of a relative of the victim, which is otherwise credit-worthy, cannot be relied
upon unless corroborated by public witnesses. Insofar as the question of credit-worthiness
of the evidence
@page-SC2438
of relatives of the victim is concerned, it is well settled that though the Court has to
scrutinize such evidence with greater care and caution but such evidence cannot be
discarded on the sole ground of their interest in the prosecution. The relationship per se
does not affect the credibility of a witness. Merely because a witness happens to be a
relative of the victim of the crime, he/ she cannot be characterized as an "interested"
witness. It is trite that the term "interested" postulates that the person concerned has some
direct or indirect interest in seeing that the accused is somehow or the other convicted
either because he had some animus with the accused or for some other oblique motive.
8
. In Dalip Singh vs. State of Punjab1, this Court had the occasion to deal with the
question as to whether a relative is per se an "interested" witness. Dispelling the general
impression that relatives were not independent witnesses, speaking for the Court, Vivian
Bose, J., observed thus : AIR 1953 SC 364, (Para 26)
1. (1954) 1 SCR 145

"A witness is normally to be considered independent unless he or she springs from
sources which are likely to be tainted and that usually means unless the witness has
cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a
close relative would be the last to screen the real culprit and falsely implicate an innocent
person. It is true, when feelings run high and there is personal cause for enmity, that there
is a tendency to drag in an innocent person against whom a witness has a grudge along
with the guilty, but foundation must be laid for such a criticism and the mere fact of
relationship far from being a foundation is often a sure guarantee of truth."
9
. In Masalti vs. State of U.P.2, a four-Judge Bench of this Court had observed that though
the evidence of an interested or partisan witness has to be weighed by the Court very
carefully but it would be unreasonable to contend that evidence given by a witness should
be discarded only on the ground that it is evidence of a partisan or interested witness. The
mechanical rejection of such evidence on the sole ground that it is partisan would
invariably lead to failure of justice. (Also see : Guli Chand and Ors. vs. State of Raj as
than3and State of Punjab vs. Jagir Singh, Baljit Singh and Karam Singh4). AIR 1965 SC
202
AIR 1974 SC 276
AIR 1973 SC 2407
2. (1964) 8 SCR 133.

3. (1974) 3 SCC 698.
4. (1974) 3 SCC 277.
10
. To the same effect is the decision in Rizan and Anr. vs. State of Chhattisgarh, through
The Chief Secretary, Govt. of Chhattisgarh, Raipur, Chhattisgarh5, wherein this Court has
observed that relationship is not a factor to affect credibility of a witness. It is more often
than not a relation would not conceal the actual culprit and make allegations against the
innocent person. Foundation has to be laid if plea of false implication is made. In such
cases, the Court has to adopt a careful approach and analyse evidence to find out whether
it is cogent and credible. 2003 AIR SCW 469
5. (2003) 2 SCC 661.

11. Very recently in Namdeo vs. State of Maharashtra6, one of us (C.K. Thakker, J.) has
said that a close relative cannot be characterized as an "interested" witness. He is a
natural witness. His evidence, however, must be scrutinised carefully. If on such scrutiny,
his evidence is found to be intrinsically reliable, inherently probable and wholly
trustworthy, conviction can be based on the 'sole' testimony of such witness. Close
relationship of witness with the deceased or victim is no ground to reject his evidence. On
the contrary, close relative of the deceased would normally be most reluctant to spare the
real culprit and falsely implicate an innocent one.
6. 2007 AIR SCW 1835.
12. In the instant case, as noted above, out of the nine witnesses examined by the
prosecution, five are injured witnesses, which include PW-2-Ajay Kumar, the main
victim, who was dragged and assaulted in the first instance and his father, PW-4-Hardeo
Chaudhary, who was also stabbed. Neither their testimony nor the evidence of other three
injured witnesses gives an indication that any of the witnesses, whose testimony has been
relied upon by the trial court and the High Court, bore any animus against the appellants.
It is true that in the cross-examination, an attempt was made to cast a doubt that on
account of an old case filed by the appellant No.1-Ashok against PW-4, the said witness
was deposing against
@page-SC2439
the appellants but in the light of the graphic details of the incident given by the said
witness, who had also sustained serious injuries in the stomach, there was no reason for
the Courts below to disbelieve the evidence of PW-4. Similarly, PW-5, who, in his cross-
examination had divulged that appellant-Kailash Chaudhary was his brother by gotra,
was also injured, had been cross-examined at length, but nothing could be elicited to
show that he had any animosity towards the appellants or to discredit his deposition in
support of the prosecution. The Trial Court as well as the High Court have found the
evidence of all these witnesses to be trustworthy and reliable, and it has been recorded
that their evidence inspires confidence and stands corroborated by the medical evidence.
The Trial Court has also taken note of some minor variation in the timing of the
occurrence, which has also been highlighted before us by learned counsel for the
appellants, and has held that negligible variation of half an hour between the testimony of
PW-1 to PW-5, wherein all of them have given the time of occurrence either at about 5.30
p.m. or between 5-6 p.m. (PW-5) and the evidence of PW-8, wherein the time of
occurrence has been given as 5.00 p.m. hardly affects the prosecution case. In view of
consistent evidence that has come on record, it cannot be said that non-examination of
pubic witness makes the case of the prosecution untrustworthy or that the courts below
have committed any legal infirmity in relying upon the testimony of the injured
witnesses. It is the quality and not the quantity of evidence which matters.
13. It was then contended by learned counsel for the appellants that there was inordinate
delay of five days in lodging the F.I.R., which is fatal to the prosecution case.
14. It is trite that mere delay in lodging the first information report is not by itself fatal to
the case of the prosecution. Nevertheless, it is a relevant factor of which the Court is
obliged to take notice and examine whether any explanation for the delay has been
offered and if offered, whether it is satisfactory or not. If no satisfactory explanation is
forthcoming, an adverse inference may be drawn against the prosecution. However, in the
event, the delay is properly and satisfactorily explained; the prosecution case cannot be
thrown out merely on the ground of delay in lodging the F.I.R. Obviously, the explanation
has to be considered in the light of the totality of the facts and circumstances of the case.
15
. On this aspect, in State of H.P. vs. Gian Chand7, a three-Judge Bench of this Court had
observed thus : 2001 AIR SCW 1903, (Para 11)
7. (2001) 6 SCC 71.

"Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the
prosecution case and discarding the same solely on the ground of delay in lodging the
first information report. Delay has the effect of putting the court on its guard to search if
any explanation has been offered for the delay, and if offered, whether it is satisfactory or
not. If the prosecution fails to satisfactorily explain the delay and there is a possibility of
embellishment in the prosecution version on account of such delay, the delay would be
fatal to the prosecution. However, if the delay is explained to the satisfaction of the court,
the delay cannot by itself be a ground for disbelieving and discarding the entire
prosecution case."
16
. More recently in Ramdas and Ors. vs. State of Maharashtra,8it has been observed that
the question whether the delay in lodging the report adversely affects the case of the
prosecution has to be considered in the light of the totality of the evidence. This is a
matter of appreciation of evidence. There may be cases where there is direct evidence to
explain the delay. Even in the absence of direct explanation, there may be host of
circumstances appearing on record which may provide reasonable explanation for the
delay. 2006 AIR SCW 5675
8. (2007) 2 SCC 170.

17. In the present case, PW-5-Laxmi Chaudhary promptly gave his Fardbeyan to the
police on the very next day, i.e. 18th July, 1988 in the hospital at Patna. The Fardbeyan
was forwarded by the police to the concerned police station the same day and on the basis
thereof, the formal F.I.R. was registered on 22nd July, 1988. Though there is no denying
the fact that there was delay in registration of F.I.R. but it is nobody's case that the F.I.R.
was not in consonance with the Fardbeyan and it was embellished in any manner. The
courts below have found that in the light of the surrounding circumstances and the fact
that the concerned police station was about 12 kms. away from the place of occurrence,
the
@page-SC2440
delay has been satisfactorily explained and, therefore, it cannot be said that the courts
below have committed an error in accepting the explanation for the delay. The contention
raised by the learned counsel for the appellants is, thus, rejected.
18. It was then contended by learned counsel for the appellants that the evidence of two
doctors, namely, Krishna Nand Singh (PW-6) and Dr. R.K. Agrawal (PW-7) who had
examined Hardeo Chaudhary cast a doubt on the kind of the weapon used for assault. It is
pointed out that in their respective depositions both the doctors have opined that the
injuries were caused by a sharp cutting weapon like "chhura", whereas in his Fardbeyan
PW-5 had stated that appellant Kailash Chaudhary had taken out "Hasua" and started
inflicting injuries. It was urged that this discrepancy falsifies the case of the prosecution.
19. We do not find much substance in the contention. In our view, insofar as the nature of
injuries caused to Hardeo Chaudhary is concerned, the evidence of both the doctors is
consistent. Both of them have deposed that injuries had been caused by "sharp cutting
weapon such as chhura". In our view, when the injuries, the time and place of occurrence
stand proved, the said variation in Fardbeyan fades into insignificance and cannot be held
to be fatal to the case of the prosecution.
20. Thus, on the basis of the evidence of the witnesses, the High Court has concurred
with the findings of the Trial Court that the prosecution has succeeded in bringing home
the offences, the appellants were charged with. Nothing substantial has been shown to
persuade us to interfere with the conviction of the appellants.
21. Lastly, it was pleaded by Mr. Lekhi that the sentence awarded to the appellants,
particularly appellant No.2-Kailash Chaudhary who is an old person of about 81 years of
age and has already undergone five months' rigorous imprisonment, may be reduced.
Having regard to the facts and circumstances of the case and bearing in mind the fact that
the subject incident had taken place almost two decades ago, we are of the view that it is
a fit case where sentences awarded to the appellants deserve to be reduced.
22. Accordingly, the appeal is partly allowed to the extent indicated above. The order of
conviction passed against all the appellants is maintained. However, the sentence of two
months' rigorous imprisonment awarded to appellant Nos. 1 and 3 is set aside and instead
they are sentenced to pay a fine of Rs. 20,000/- each within six weeks from today, failing
which they will undergo rigorous imprisonment for a period of one month. Similarly, the
sentence of three years' rigorous imprisonment awarded by the Trial Court to appellant-
Kailash Chaudhary is reduced to one year rigorous imprisonment. He shall also be liable
to pay a fine of Rs. 20,000/- within six weeks from today and in default will undergo
further rigorous imprisonment for a period of one month. The amount(s) of fine so
recovered shall be paid in equal proportion, to Bijoy Kumar Sanyal, Kishan Singh,
Hardeo Chaudhary and Laxmi Chaudhary, who all were injured in the incident.
AIR 2008 SUPREME COURT 2440 "H. V. Nirmala v. Karnataka State Financial Corpn."
(From : Karnataka)*
-2008.
H. V. Nirmala v. Karnataka State Financial Corporation and Ors.
(A) State Financial Corporations Act (63 of 1951), S.48 - Karnataka State Financial
Corporation (Staff) Regulations (1965), Regn.41(3) - FINANCIAL CORPORATION -
DISCIPLINARY ENQUIRY - ESTOPPEL - Disciplinary inquiry - Inquiry Officer -
Objection as to incompetency - Must be raised at earliest opportunity - Incompetency of
Inquiry Officer does not vitiate entire proceedings - Such objection can be waived -
Cannot be raised for first time before superior Courts.
Evidence Act (1 of 1872), S.115. (Paras 8, 9, 11, 17, 18)
(B) State Financial Corporations Act (63 of 1951), S.48 - Karnataka State Financial
Corporation (Staff) Regulations (1965), Regn.41(3), App.III - FINANCIAL
CORPORATION - DISCIPLINARY PROCEEDINGS - MISCONDUCT - Disciplinary
proceedings - Proper authority - Proceedings against Class 'A' Officer - M. D. of
Corporation proper authority - But only as regards imposition of minor punishment -
Misconduct of delinquent deserving imposition of major
@page-SC2441
punishment - M. D. has incidental power to place findings of I. O. before Board -
Absence of express power does not vitiate proceedings. (Paras 19, 20)
2007 AIR SCW 103 : AIR 2007 SC 548 : 2007 (2) AIR Kar R 56 : 2007 (2) AIR Bom R
55 (Rel. on) 19
(2003) 12 SCC 474 (Rel. on) 10
(1991)1 SCC 319 (Ref.) 13, 16
AIR 1985 SC 1416 : 1985 Lab IC 1393 (Disting.) 14
AIR 1981 SC 1862 (Rel. on) 17
AIR 1979 SC 1628 (Ref.) 11
AIR 1964 SC 600 14
AIR 1961 SC 751 : 1961 (1) Cri LJ 773 14
(1959) 359 US 535 (Ref.) 11
Basava S. Patil, V.N. Raghupathy and B. Subrahmanya Prasad, for Appellant; Ms. Kiran
Suri, for Respondents.
* W. A. No. 3087 of 2005 (S-DIS), D/-22-02-2006 (Kar.)
Judgement
2. Respondent-Corporation was constituted under the State Financial Corporations Act,
1951 (1951 Act). Appellant was appointed as Trainee Assistant Manager in the
Corporation in June 1983. She was promoted and posted as Branch Manager at
Chikkaballapur Branch. A disciplinary proceeding was initiated against her in April,
1996. The imputation of charges against her pertained to sanction and disbursal of
amount of loan in four cases. As many as four charges were framed against her. The
disciplinary proceeding was initiated by the Managing Director of Corporation, wherein
one Sri B. Rudregowda, a legal advisor of the company, was appointed as an Enquiry
Officer on 4th July, 1996.
A finding of guilt was arrived at by the said Enquiry Officer, a copy whereof was made
available to the appellant. The records of the disciplinary proceeding were placed before
the Board of Directors of the Corporation. By an order dated 9th June, 1998 a penalty of
dismissal from services was imposed upon her. Appellant preferred an appeal thereagainst
before the Board itself on or about 4th December, 1998. The said appeal was treated to be
a petition for review which by reason of an order dated 2nd March, 1999 was dismissed.
Aggrieved by and dissatisfied therewith, the appellant filed a writ petition before the
High Court of Karnataka at Bangalore. By reason of a judgment and order dated 23rd
June, 2005 a learned Single Judge of the said Court dismissed the writ petition. An intra-
court appeal was preferred thereagainst which has been dismissed by a Division Bench of
the said High Court by reason of the impugned judgment and order dated 22nd February,
2006.
3. Mr. Basava Prabhu S. Patil, learned counsel appearing on behalf of the appellant,
principally raised two contentions before us :-
i) Having regard to clause (3) of Regulation 41 of Karnataka State Financial Corporation
(Staff) Regulations, 1965 a Legal Advisor could not have been appointed as an Enquiry
Officer;
and
ii) In the absence of any provision in the Regulations unlike Rule 13 of the Central Civil
Services (Classification, Control and Appeal) Rules, 1965, the Managing Director of the
Corporation could not have transferred the proceeding to the Board of Directors.
4. Ms. Kiran Suri, learned counsel appearing on behalf of the respondents, on the other
hand, urged :-
i) Appointment of a Legal Advisor is permissible under clause (3) of Regulation 41 of the
Regulations; and
ii) As a major penalty was proposed to be imposed, the Board of Directors only was the
competent authority therefor in terms of the Regulations.
5. Before adverting to the rival contentions of the parties as noticed hereinbefore, we may
notice that the terms and conditions of appointment and service of the staff of the
Corporation are governed by the 1951 Act and the Regulations framed thereunder known
as Karnataka State Financial Corporation (Staff) Regulations, 1965 (for short the
Regulations).
6. Officers of the Corporation are classified in three groups, namely Class A; Class B and
Class C. Appellant was a Category 'A' Officer. Chapter IV of the Regulations deals with
conduct, discipline and appeals. Regulation 26 deals with the liability of an employee to
abide by the Regulations and the Orders. Regulation 28 enjoins a duty upon
@page-SC2442
the employee to promote the interest of the Corporation. Regulation 41 deals with
penalties which reads as under :-
"Without prejudice to the provisions of other Regulations, an employee who commits a
breach of the Rules or Regulations of the Corporation or who display negligence,
inefficiency or indolence, or who knowingly does anything detrimental to the interests of
the Corporation or in conflict with its instructions, or commits a breach of discipline or is
guilty of any other act of misconduct, shall be liable to the following penalties :
(a) censure;
(b) delay or stoppage of increments or promotion including stoppage at an efficiency bar,
if any;
(c) reduction to a lower post or grade or to a lower stage in the time scale;
(d) recovery from pay of the whole or part of any pecuniary loss caused to the
Corporation by negligence or breach of orders;
(e) dismissal.
(2) No employee shall be subjected to the penalties (a), (b), (c), (d) or (e) of sub-
regulation (1) except by an order in writing signed by an appropriate disciplinary
authority and no such order of the disciplinary authority shall be passed without the
charge or charges being formulated in writing and given to the said employees so that he
shall have reasonable opportunity to answer them in writing or in person, as he prefers,
and in the latter case his defence shall be taken down in writing and read to him. For this
purpose the disciplinary authorities will be as indicated at Appendix III of the (Staff)
Regulations, 1965 of KSFC :
Provided that the requirements of this sub-regulation may be waived if the facts on the
basis of which action is to be taken have been established in a Court of Law or Court-
Martial or where the employee has absconded or where it is for any other reason
impracticable to communicate with him or where there is difficulty in observing them and
the requirements can be waived without causing injustice to the employee in every case,
where all or any of the requirements of this sub-regulation are waived, the reasons
therefor shall be recorded in writing.
(3) The enquiry under this sub-regulation and the procedure with the exception of the
final order may be delegated to an officer of the Corporation of a rank above that of the
employee against whom the charges have been framed.
We may, however, note that according to the respondents, clause (3) of Regulation 41 in
fact reads as under :-
"41 (3). For the purpose of holding an enquiry into Articles of charges, Disciplinary
Authority may itself hold an enquiry or appoint an Inquiring Authority for the purpose
from amongst the offices of the Corporation of rank above that of the employee against
whom the charges have been framed or any authority as listed in the panel approved for
the purpose."
7. Before proceeding further we may also notice the relevant portions of Appendix III
enumerating the functions of the appointing authority and the disciplinary authority etc.,
which read :-
Name of Office Appointing Authority Disciplinary Authority Penalty that

can be imposed Appellate Authority
I.
II.
III.
IV.
Group 'A' Board Managing Director
Board a.b.
c.d.e. Board
Board
8. Appellant did not raise any objection in regard to the appointment of the Enquiry
Officer. He participated in the enquiry proceeding without any demur whatsoever. A large
number of witnesses were examined before the Enquiry Officer. They were cross-
examined. Appellant examined witnesses on her own behalf.
Learned Single Judge as also the Division Bench of the High Court opined that
@page-SC2443
the appellant has failed to establish that any prejudice has been caused to her by reason of
appointment of a Legal Advisor as an Enquiry Officer and as the appellant has
participated in the enquiry proceeding, she could not be permitted to raise the said
contention.
9. Mr. Patil, however, would submit that such a contention which goes to the root of
jurisdiction can be urged at any stage.
We do not agree. Appointment of an incompetent enquiry officer may not vitiate the
entire proceeding. Such a right can be waived. In relation thereto even the principle of
Estoppel and Acquiescence would apply.
10. In State Bank of India vs. Ram Das, (2003) 12 SCC 474 this Court held :
"It is an established view of law that where a party despite knowledge of the defect in the
jurisdiction or bias or malice of an arbitrator participated in the proceedings without any
kind of objection, by his conduct it disentitles itself from raising such a question in the
subsequent proceedings. What we find is that the appellant despite numerous
opportunities made available to it, although it was aware of the defect in the award of the
umpire, at no stage made out any case of bias against the umpire. We, therefore, find that
the appellant cannot be permitted to raise the question of bias for the first time before this
Court."
11. There are questions and questions in regard to the jurisdictional issues. An authority
may lack inherent jurisdiction in which case the order passed would be a nullity but he
may commit a jurisdictional error while exercising jurisdiction. The legal rights conferred
upon the employees in this behalf may be different under different statutes. A legal
advisor under the common law is not debarred for acting as an enquiry officer. Even in
relation to applicability of the principles of natural justice, breaches whereof would
ordinarily render the decision nullity, the courts have been applying the prejudice
doctrine to uphold the validity thereof.
We are, however, not unmindful of the legal principle laid down in Vitarelli vs. Seaton,
(1959) 359 US 535 which has been noticed in Ramana Dayaram Shetty vs. International
Airport Authority, (1979) 3 SCC 489, stating :- AIR 1979 SC 1628, (Para 10)
"10. Now, there can be no doubt that what para (1) of the notice prescribed was a
condition of eligibility which was required to be satisfied by every person submitting a
tender. The condition of eligibility was that the person submitting a tender must be
conducting or running a registered IInd Class hotel or restaurant and he must have at least
5 years' experience as such and if he did not satisfy this condition of eligibility, his tender
would not be eligible for consideration. This was the standard or norm of eligibility laid
down by Respondent 1 and since the Respondents 4 did not satisfy this standard or norm,
it was not competent to Respondent 1 to entertain the tender of Respondent 4. It is a well-
settled rule of administrative law that an executive authority must be rigorously held to
the standards by which it professes its actions to be judged and it must scrupulously
observe those standards on pain of invalidation of an act in violation of them. This rule
was enunciated by Mr Justice Frankfurter in Vitarelli v.Seaton1 where the learned Judge
said:
"An executive agency must be rigorously held to the standards by which it professes its
action to be judged .... Accordingly, if dismissal from employment is based on a defined
procedure, even though generous beyond the requirements that bind such agency, that
procedure must be scrupulously observed .... This judicially evolved rule of
administrative law is now firmly established and, if I may add, rightly so. He that takes
the procedural sword shall perish with the sword."
But in the said decisions, applicability of the prejudice doctrine was not considered being
not necessary to do so. Jurisdictional issue should be raised at the earliest possible
opportunity. A disciplinary proceeding is not a judicial proceeding. It is a domestic
tribunal. There exists a distinction between a domestic tribunal and a court. Appellant
does not contend that any procedure in holding the enquiry has been violated or that there
was no compliance of principles of natural justice.
12
. This Court in Union of India vs. S. Vinodh Kumar, (2007) 8 SCC 100, has held :-
2007 AIR SCW 5989
"18. It is also well settled that those candidates who had taken part in the selection
process knowing fully well the procedure laid down therein were not entitled to question
the same."
@page-SC2444
13. Reliance has been placed by Mr. Patil on Central Bank of India vs. C. Bernard, (1991)
1 SCC 319 wherein this Court in a case of disciplinary enquiry allowed the plea of
incompetence on the part of the disciplinary authority to be raised for, the first time
before the High Court, stating :-
"9. Lastly, Shri Shetye submitted that in any event the respondent succeeded in getting
the order of punishment quashed on a mere technicality and that too on the contention
belatedly raised before the High Court for the first time and, therefore, the High Court
was in error in directing payment of all consequential benefits. We think there is merit in
this contention. If the objection was raised at the earliest possible opportunity before the
Enquiry Officer the appellant could have taken steps to remedy the situation by
appointing a competent officer to enquire into the charges before the respondent's
retirement from service. It is equally true that the penalty has not been quashed on merits.
On the contrary, if one were to go by the charge levelled against the respondent and the
reply thereto one may carry the impression that the respondent had made the claim on the
basis of the fake receipt; whether the respondent himself was duped or not would be a
different matter. The fact, however, remains that the impugned order of punishment has to
be quashed not because the merits of the case so demand but because the technical plea of
incompetence succeeds."
(Emphasis supplied)
However, therein also all consequential benefits were not given. In that case the Enquiry
Officer had no jurisdiction at all. Even the defecto doctrine could not be applied as he
was not the holder of the office but merely an ex-employee, who could not have been
appointed as an Enquiry Officer.
14. We may at this stage also notice two other decisions of this Court whereupon reliance
has been placed by Mr. Patil.
In Union of India vs. Tulsiram Patel, (1985) 3 SCC 398, this Court held : AIR 1985 SC
1416
"57. The question came to be reconsidered by a larger Bench of seven Judges in Moti
Ram Deka case. While referring to the judgment of the majority in Babu Ram Upadhya
case the Court observed as follows (at pp. 731-2) : AIR 1964 SC 600
AIR 1961 SC 751
at P. 619 of AIR
"What the said judgment has held is that while Article 310 provides for a tenure at
pleasure of the President or the Governor, Article 309 enables the Legislature or the
executive, as the case may be, to make any law or rule in regard, inter alia, to conditions
of service without impinging upon the overriding power recognised under Article 310. In
other words, in exercising the power conferred by Article 309, the extent of the pleasure
recognised by Article 310 cannot be affected, or impaired. In fact, while stating the
conclusions in the form of propositions, the said judgment has observed that the
Parliament or the Legislature can make a law regulating the conditions of service without
affecting the powers of the President or the Governor under Article 310 read with Article
311. It has also been stated at the same place that the power to dismiss a public servant at
pleasure is outside the scope of Article 154 and, therefore, cannot be delegated by the
Governor to a subordinate officer and can be exercised by him only in the manner
prescribed by the Constitution. In the context, it would be clear that this latter observation
is not intended to lay down that a law cannot be made under Article 309 or a Rule cannot
be framed under the proviso to the said Article prescribing the procedure by which, and
the authority by whom, the said pleasure can be exercised. This observation which is
mentioned as proposition number (2) must be read along with the subsequent
propositions specified as (3), (4), (5) and (6). The only point made is that whatever is
done under Article 309 must be subject to the pleasure prescribed by Article 310."
In Rattan Lal Sharma vs. Managing Committee, Dr. Hari Ram (Co-education) Higher
Secondary School, (1993) 4 SCC 10, it was held : 1993 AIR SCW 2400, (Para 12)
"But if the plea though not specifically raised before the subordinate tribunals or the
administrative and quasi-judicial bodies, is raised before the High Court in the writ
proceeding for the first time and the plea goes to the root of the question and is based on
admitted and uncontroverted facts and does not require any further investigation into a
question of fact, the High Court is not only justified in entertaining the plea but in the
anxiety to do justice which is the paramount consideration of the court, it is only
desirable that a litigant should not be shut out from raising such plea which goes
@page-SC2445
to the root of the lis involved."
The said decisions, to our mind, are not applicable to the fact of the present case.
15. Appellant himself has quoted the said Regulation which was corrected merely upto
31st October, 1991. On the other hand, Ms. Suri has produced the Regulation which is
said to be applicable at the relevant point of time, in terms whereof not only an officer of
the Corporation but also any authority as listed in the panel approved for the purpose
could have been appointed as an Enquiry Officer.
However, the Regulation, which was produced by Ms. Suri is corrected upto 1st April,
2002, but it is not clear as to whether the necessary amendment has been carried out prior
to 14th July, 1996 or not. We hope that the said assertion of the learned counsel is correct.
We are, however, in this case proceed on the basis that Regulation 41(3) remained
unchanged and according to learned counsel in terms of the Regulation which was
prevalent at the relevant point of time, an outsider could have been appointed as the
Enquiry Officer.
16. In Central Bank of India (supra) also this Court held that an Enquiry Officer need not
be an officer of the Bank as even a third party can be appointed an Enquiry Officer to
enquire into the conduct of an employee. What was, however, emphasised was that a non-
official cannot act as a disciplinary authority and pass an order of punishment against the
delinquent employee. It is in that view of the matter it was held that a retired employee
could not act as a disciplinary authority.
17. We may, however, notice that in a case of this nature where appointment of the
Enquiry Officer may have something to do only for carrying out the procedural aspect of
the matter, strict adherence to the Rules may not be insisted upon. Superior courts in a
case of this nature may not permit such a question to be raised for the first time. (See -
Sohan Singh and others vs. The General Manager, Ordnance Factory, Khamaraia,
Jabalpur and others, AIR 1981 SC 1862).
18. Prejudice doctrine, in our opinion, may also be applied in such a contingency. We,
therefore, are of the opinion that the first contention of Mr. Patil has no merit.
19. Submission of Mr. Patil that the Managing Director could not have directed the
proceeding to be placed before the Board, in our opinion, has equally no merit.
Appointing authority of Class 'A' Officers is the Board. Managing Director is the
disciplinary authority only in respect of minor punishments. When a major punishment is
proposed to be imposed, the Board of Directors alone will have the jurisdiction to
consider the gravity of the alleged misconduct so as to enable it to pass an appropriate
order. It is idle to contend that had Managing Director passed an order, an appeal could
have been preferred thereagainst. If the entire Board is the appropriate authority for
taking a decision, it is only that authority which was required to take decision and not any
other. (See Indian Airlines Ltd. vs. Prabha D, Kanan, (2006) 11 SC 67).
20. For the said purpose an express provision in the Regulation was not imperative.
Managing Director of the Corporation initiated a proceeding but he could not impose a
major penalty and in that view of the matter he will have the incidental power to place the
findings of the Enquiry Officer before the Board. Such an incidental power must be held
to be existing with all the statutory authorities. Absence of any Rule as is obtaining in
Rule 13 of the CCS (CCA) Rules would not, in our opinion, vitiate the proceeding.
21. For the reasons aforementioned the impugned judgment does not warrant any
interference. The appeal fails and is dismissed accordingly. There shall, however, be no
order as to costs.
Appeal dismissed.
AIR 2008 SUPREME COURT 2445 "Union of India v. S. P. Singh"
(From : Delhi)*
Union of India v. S. P. Singh.
Constitution of India, Art.16, Art.309 - Central Civil Services (Pension) Rules (1972),
R.48(1)(a) - EQUALITY IN PUBLIC EMPLOYMENT - CIVIL SERVICE - PENSION -
RETIREMENT - Suspension - Effect - Is date of despatch of order - But for that despatch
has to be at correct address - Respondent opting for voluntary retirement - Day before
expiry of notice period suspension order dispatched
@page-SC2446
- Department though aware of correct address of respondent despatch made at wrong
address - Refusal of request for voluntary retirement on account of deemed suspension -
Improper. (Para 10)
AIR 1970 SC 214 : 1970 Lab IC 271 (Rel. on) 4, 7, 9
AIR 1966 SC 1313 (Ref.) 4, 9
AIR 1963 SC 395 (Ref.) 4
AIR 1962 SC 911 : 1962 (1) Cri LJ 797 (Ref.) 4
AIR 1961 SC 493 (Ref.) 4
R. Mohan, ASG, Gaurav Agrawal and B. Krishna Prasad, for Appellant; Rajesh Kumar,
for Respondent.
* W. P. (C) No. 10460 of 2006, D/-03-07-2006 (Del).
Judgement
2. The respondent, S.P. Singh, an officer of the 1973 batch of the Indian Revenue Service,
was posted as Commissioner (Appeals) Central Excise, Bhopal in May 2005. He filed an
application dated 10th May, 2005 seeking voluntary retirement w.e.f. 1st September,
2005, on having completed 30 years of qualifying service. On 30th June, 2005 the
respondent was relieved from Bhopal and posted as Commissioner (Appeals) at
Hyderabad. He accordingly handed over charge at Bhopal on 20th June, 2005 but as the
officer holding the post at Hyderabad had not been likewise relieved, the respondent's
transfer order was stayed and a request was made by him seeking a suitable posting
pursuant to his request for voluntary retirement. Vide communication dated 25th August,
2005 sent to the respondent at his residential address H. No. 226 Sector 15-A, NOIDA,
he was asked to deposit some outstanding dues so that his request for retirement could be
finalized. Quite to the contrary, however, on 9th September, 2005, the respondent
received an order dated 30th August, 2005 placing him under suspension and fixing his
Head Quarters at Aurangabad and by another order dated 31st August, 2005 his request
for voluntary retirement was also declined. An order dated 16th September, 2005 was
subsequently issued whereby he was directed to be attached to Bhopal for the purpose of
receiving payment of his subsistence allowance. The orders dated 30th August, 2005 and
16th September, 2005 were challenged by the respondent before the Central
Administrative Tribunal (Principal Bench), New Delhi (hereinafter referred to as "the
Tribunal"). Before the Tribunal, it was contended on behalf of the respondent that as the
three months' notice period for voluntary retirement had expired on 31st August, 2005
and the order of suspension had not been communicated nor received by him till that date
it was to be deemed that the voluntary retirement had become effective and as such
permission to retire could not be withheld thereafter, in the light of Rule 48(1) (a) of the
Central Civil Services (Pension) Rules, 1972 (hereinafter called the "Rules"). It was
further contended that the letter dated 30th August, 2005 had been sent to Nagpur for
further onward transmission to Bhopal and it was only on 2nd September, 2005 that the
suspension order had been issued to the respondent's residential address in NOIDA, ( a
fact which was in the knowledge of the Department) and had been received by him on 9th
September, 2005. It has accordingly been submitted that the date of communication of the
order being 2nd September, 2005, the respondent could not have been suspended
thereunder as his three months' notice seeking voluntary retirement had expired on 31st
August, 2005 and he was thus deemed to have retired w.e.f. 1st September, 2005. It has
accordingly been submitted that the order dated 30th August, 2005 was, therefore,
ineffective in law.
3. The Union of India in its reply has opposed the pleas raised by the respondent and has
submitted that as the order of suspension had been dispatched before 31st August, 2005
to Nagpur and thereafter transmitted to Bhopal it was deemed to have been made
effective from 30th August, 2005 itself, and as such the respondent was deemed to be
under suspension.
4. The Tribunal in its order dated 22nd February, 2006 examined the matter in the
background of the Rules and the dictionary meaning of the word "Communication" and
the ratio of several judgments of this Court, Hari Kishan vs. State of Maharashtra, AIR
1962 SC 91; State of Punjab vs. Amar Singh Harika, AIR 1966 SC 1313; State of Punjab
vs. Sodhi Sukhdev Singh, AIR 1961 SC 493, and Bachhittar Singh vs. State of Punjab,
@page-SC2447
AIR 1963 SC 395, and observed that an order had to be communicated to the person who
would be affected by that order so as to make him bound by it. The Tribunal then
examined the import of the judgment in State of Punjab vs. Khemi Ram, AIR 1970 SC
214, and noted that a slight deviation from the principles laid down in the first set of cited
cases had come about as the question as to whether the communication of an order meant
its actual receipt by the concerned official as the requirement of law was that the order to
be effective was required to be dispatched before the proposed date of retirement to the
correct address of the concerned officer and its receipt after the date of the retirement
would be irrelevant. The Tribunal then examined the effect of Rule 48 and observed that
the respondent had undoubtedly completed the requisite period of service qualifying him
for voluntary retirement and also fulfilled all the other conditions as well and the only
impediment to his retirement was relatable to his suspension by the order dated 30th
August, 2005 in terms of the 2nd proviso to Rule 48(1)(b) which postulated that
permission to seek voluntary retirement could be withheld by the appointing authority in
case the Government Servant was under suspension. The Tribunal then applied the law to
the facts of the case and observed that the order dated 30th August, 2005 had been
dispatched to Nagpur for further transmission to the respondent at Hyderabad though he
was admittedly at NOIDA at the relevant time, - a fact well within the knowledge of the
Department as he had not been able to take up his appointment at Hyderabad. The
Tribunal accordingly concluded that the order had been dispatched to the wrong address
and was therefore not effective as it had actually been received by him on 9th September,
2005 whereas the respondent had retired w.e.f. 1st September, 2005. The Original
Application was accordingly allowed by the Tribunal.
5. The matter was thereafter taken before the High Court in writ proceedings. By the
impugned judgment dated 3rd July, 2006 the writ petition has been dismissed and the
order of the Tribunal confirmed.
6. The Union of India is before us by way of special leave.
7
. The learned counsel for the appellant-Union of India has once again submitted that as
the suspension order dated 30th August, 2005 had actually been issued on that date and
the order rejecting the respondent's request for voluntary retirement too had been
communicated vide order dated 31st August, 2005, the respondent could not claim to
have voluntarily retired from service in the light of the 2nd proviso to Rule 48 (1)(a) as
the necessary communication should be deemed to have been made on the respondent. In
this connection, the learned counsel has relied the case of Khemi Ram's case (supra) in
addition to Municipal Corporation of Delhi vs. Qimat Rai Gupta and Ors. (2007) 7 SCC
309 and U.P. State Sugar Corporation Ltd, and Ors. vs. Kamal Swaroop Tondon (2008) 2
SCC 41. The learned counsel for the respondent has however supported the Judgment of
the Tribunal and the High Court and has contended that in view of the settled law, if the
orders were to be made effective from the date of issue it was essential that they be issued
to the correct address of the officer which was at NOIDA and as the said orders had been
dispatched to Nagpur instead and served on him on 9th September, 2005 it could not be
said that the respondent continued to be in service as his prayer for voluntary retirement
had been rejected. AIR 1970 SC 214
2007 AIR SCW 4952
2008 AIR SCW 1241
8. We have heard the learned counsel for the parties and have gone through the record.
9
. The Tribunal has relied on several judgments of this Court to support the view that an
order to be made effective it has to be communicated to the officer at his correct address.
In Khemi Ram's case (supra) the question as to what amounted to "communication" has
been spelt out and it has been observed thus: AIR 1970 SC 2141, (Para 16)
16. "The question then is whether communicating the order means its actual receipt by
the concerned Government servant. The order of suspension in question was published in
the Gazette though that was after the date when the respondent was to retire. But the
point is whether it was communicated to him before that date. The ordinary meaning of
the word "communicate" is to impart, confer or transmit information. (Cf. Shorter Oxford
English Dictionary, Vol. 1, p. 352). As already stated, telegrams, dated July 31, and
August 2, 1958, were dispatched to the respondent at
@page-SC2448
the address given by him where communications by Government should be dispatched.
Both the telegrams transmitted or imparted information to the respondent that he was
suspended from service with effect from August 2, 1958. It may be that he actually
received them in or about the middle of August 1958, after the date of his retirement. But
how can it be said that the information about his having been suspended was not imparted
or transmitted to him on July 31 and August 2, 1958 i.e. before August 4, 1958, when he
would have retired? It will be seen that in all the decisions cited before us it was the
communication of the impugned order which was held to be essential and not its actual
receipt by the officer concerned and such communication was held to be necessary
because till the order is issued and actually sent out to the person concerned the authority
making such order would be in a position to change its mind and modify it if it thought
fit. But once such an order is sent out, it goes out of the control of such an authority, and
therefore, there would be no chance whatsoever of it changing its mind or modifying it.
In our view, once an order is issued and it is sent out to the concerned Government
servant, it must be held to have been communicated to him, no matter when he actually
received it. We find it difficult to persuade ourselves to accept the view that it is only
from the date of the actual receipt by him that the order becomes effective. If that be the
true meaning of communication, it would be possible for a Government servant to
effectively thwart an order by avoiding receipt of it by one method or the other till after
the date of his retirement even though such an order is passed and dispatched to him
before such date. An officer against whom action is sought to be taken, thus, may go
away from the address given by him for service of such orders or may deliberately give a
wrong address and thus prevent or delay its receipt and be able to defeat its service on
him. Such a meaning of the word "communication" ought not to be given unless the
provision in question expressly so provides. Actually knowledge by him of an order
where it is one of dismissal, may, perhaps, become necessary because of the
consequences which the decision in AIR 1966 SC 1313 (supra) contemplated. But the
case of an officer who has proceeded on leave and against whom an order of suspension
is passed because in his case there is no question of his doing any act or passing any order
and such act or order being challenged as invalid."
10. The aforesaid principle must now be applied to the facts of this case. It is clear from
the record that the respondent was in NOIDA and not in Nagpur when the orders had
been issued. From the documents attached and, in particular, the letter dated 5th July,
2005 written by him from his address (H. No. 226 Sector- 15-A, NOIDA) to the Central
Board of Excise and Customs in which he points out that he had been transferred from
Bhopal to Hyderabad and on going there he had been informed that the incumbent officer
at that place had not been relieved on which he had returned to Bhopal and had reported
for duty at the Board's Office in New Delhi on 20th June, 2005 and further requested that
further orders as to his posting be issued, it is evident that the department had knowledge
as to his whereabouts. The learned counsel for the respondent has also referred to the
letter dated 25th August, 2005 from the Under Secretary to the Government of India,
Ministry of Finance addressed to the respondent at his residence in NOIDA directing him
to clear his outstandings before his request for voluntary retirement could be finalised. It
is also significant from the record that the order of suspension dated 30th August, 2005
had been marked to Shri B. S. Ganu, Chief Commissioner of Central Excise, Nagpur with
a request that it be served on the applicant and Shri Ganu had informed the Board Officer
in New Delhi that the respondent was not posted at Nagpur nor his mailing address was
available at that place and it was thereafter on September 2, 2005 (on receipt of the
aforesaid letter) that the suspension order had been dispatched to the correct address of
the respondent at NOIDA, and served on him a week later. It is therefore clear that
despite the fact that the Department was well aware that the respondent was residing in
NOIDA and had reported for duty before the Board on 21st June, 2005 as the incumbent
in Hyderabad had refused to make way for him, yet the suspension order had been sent to
Nagpur. We are therefore of the opinion that though the suspension order had been
dispatched by facsimile before 1st September, 2005 yet it had been dispatched to the
wrong address and could not be deemed to have been communicated
@page-SC2449
to the respondent. We have also gone through the other judgments cited by the learned
counsel for the appellant-Union of India. They have absolutely no relevance to the facts
of the case and deal with separate issues. We therefore find no infirmity in the order of
the Tribunal and of the High Court and accordingly dismiss the appeal. No order as to
costs.
Appeal dismissed.
AIR 2008 SUPREME COURT 2449 "National Textile Corporation (M.P.) Ltd. v. M. R.
Jhadav"
-2008.
National Textile Corporation (M.P.) Ltd. v. M. R. Jhadav.
Constitution of India, Art.16 - EQUALITY IN PUBLIC EMPLOYMENT -
RETIREMENT - Voluntary retirement scheme - Benefits of - Become available to
employee only on acceptance of his offer to retire.
W.P. No. 2623 of 2001, D/-10-01-2006 (M.P.), Reversed.
The employee derives legal right to obtain benefits of the Voluntary Retirement Scheme
only after his offer to retire is accepted. When a scheme is floated for voluntary
retirement, it constitutes an offer to treat. It is not an offer stricto sensu. Only when
pursuant to the said invitation to treat, an employee opts for such a scheme, it constitutes
an offer. When such an offer is made, it is required to be accepted. Subject, of course, to
the terms of "invitation to treat" as also those of the offer as envisaged under the Indian
Contract Act, an offer has to accepted. Unless an offer is accepted, a binding contract
does not come into being. A Voluntary Retirement Scheme contemplates cessation of the
relationship of master and servant. The rights and obligations of the parties thereto shall
become enforceable only on completion of the contract. Unless such a stage is reached,
no valid contract can be said to have come into force, Acceptance of an offer must,
therefore, be communicated. (Paras 17, 20, 28)
Thus, where to the offer made by respondent-employee as per VRS administrative
clearance was granted but the Head Office refused to give acceptance due to insufficiency
of funds, the employee could not claim benefits under the Scheme. Moreso, when the
employee continued to work and accepted the salary till his retirement and there was
nothing on record to show that he drew his salaries without prejudice to his rights and
contentions. In circumstances it could also be said that he waived his rights. W. P. No.
2623 of 2001, D/-10-01-2006 (M.P.), Reversed. (Paras 24, 25)
2007 AIR SCW 4952 : AIR 2007 SC 2742 23
2006 AIR SCW 5070 : AIR 2006 SC 3335 (Ref.) 22
2001 AIR SCW 540 : AIR 2001 SC 905 13
1999 AIR SCW 1427 : AIR 1999 SC 1829 : 1999 Lab IC 2072 (Disting.) 13, 17
AIR 1978 SC 17 : 1977 Lab IC 1852 18
AIR 1970 SC 214 : 1970 Lab IC 271 (Ref.) 22, 23
AIR 1966 SC 1313 (Ref.) 22, 23
Sanjoy Ghose and Ms. Anitha Shenoy, for Appellant; Ms. Meera Mathur, for Respondent.
Judgement
2. Interpretation of a Voluntary Retirement Scheme (VRS) floated by the appellant
Corporation is in question in this appeal which arises out of a judgment and order dated
10.01.2006 passed by the High Court of Madhya Pradesh at Indore in Writ Petition No.
2623 of 2001.
3. Respondent at all material times was working as an Assistant Spinning Master. A
Voluntary Retirement Scheme was floated by the appellant.
4. Respondent, on or about 16.05.2000 opted for the said Scheme with effect from
31.07.2000. The said application was in a prescribed pro forma, the relevant portion of
which reads as under:
"With reference to your circular/Notice No. dated . . ./Memorandum of Settlement
dated... containing details of N.T.C. Scheme of Voluntary Retirement, I hereby tender my
unconditional resignation from my post and service of your mills/office with effect
from... I hereby opt for Voluntary Retirement in terms of abovesaid Scheme of Voluntary
Retirement which I have carefully read and understood.
@page-SC2450
2. I hereby undertake that I shall not claim any payments from your
management/mills/company on account of my Voluntary resignation consequent on my
Voluntary Retirement other than those admissible under the aforesaid scheme of
Voluntary Retirement.
3. I also undertake that I shall not at all withdraw resignation herein tendered by me from
your service. I have furnished the required particulars in the Appendix enclosed."
5. Indisputably, administrative clearance in relation thereto was made but no decision
taken by a competent committee in that behalf was communicated to the respondent.
Indisputably, he at the material time was aged over 57 years.
6. Respondent on expiry of the said date, i.e., 31.07.2000, requested the appellant for
being relieved from his post by a letter dated 19.09.2000.
7. According to the appellant, sufficient fund was not available with it for implementation
of the scheme and to proceed with the request of the respondent for his offer to retire
voluntarily in terms of the said Scheme. The General Manager in his letter dated
26.09.2000 addressed to the respondent stated :
"In reference to your VRS proposal dated 16.5.2000, we have received the administrative
approval from HO vide letter of IR/ VRS/NBT/99/980 dated 24.5.2000. Accordingly,
your VRS was prepared and sent to HO for funds. HO has informed us that the funds for
payment of VRS are not forthcoming hence do not relieve the employees on relieving
date till further orders.
Therefore, we are not in a position to relieve you as requested by you, which you please
note."
8. Respondent issued a legal notice upon the appellant contending that it had not been
acting to effectuate his application under VRS on the ground of non-availability of funds.
9. Indisputably, however, the retirement age of the employees of the appellant corporation
was rolled back from 60 years to 58 years. The decision was taken by the CMD of the
Holding Company which was approved by the Board of Directors of the Corporation; the
procedures wherefor were specified as under:
"(a) The employees who have already attained the age of 58 years or shall attain the same
by 31st December 2000 will retire on the close of office hours on 31st January, 2001.
(b) The employees who would attain the age of 58 years in January, 2001 or thereafter
will retire in the month in which they attain the age of 58 years in the normal course."
10. Respondent filed a writ petition in the High Court of Madhya Pradesh at Indore inter
alia praying for issuance of a writ of or in the nature of mandamus directing the appellant
to effectuate his VRS application on and from 1.08.2000 upon making payment of
admissible dues.
The said writ petition was disposed of by a learned Single Judge of the said Court, by an
order dated 8.03.2001, stating :
"2. In the situation of this nature, the only direction at this stage that this Court can give is
to decide the application of the petitioner by the respondent within a period of six months
from today.
3. This Court does not give any opinion at this stage except to direct the respondent to
pass appropriate orders on the application which the petitioner has claimed to have made
under the VRS scheme. On such decision being taken, the petitioner is always free to
raise any other grievances depending upon the orders passed by the respondents."
11. Pursuant thereto or in furtherance of the said direction, an office order dated
7.08.2001 was passed by the appellant herein rejecting the said proposal, stating:
"6. Under these circumstances, the application of Shri M.R. Jadhav for Voluntary
Retirement made on 16.5.2000, which was not sanctioned, could not have been
sanctioned in view of the VRS not being in vogue. Shri M.R. Jadhav was accordingly
retired on 31.1.2001 in accordance with the orders dated 20.11.2000 whereunder the age
of retirement was rolled back to 58 years and he stood retired as aforesaid.
7. In view of the position indicated in para 6 above an amount of Rs. 1,53,743/- being the
amount of gratuity admissible under the Payment of Gratuity Act, 1972 was deposited
with the Controlling Authority (Payment of Gratuity Act, 1972), Bhopal as Shri M.R.
Jadhav did not turn up to collect this amount though offered to him and other
@page-SC2451
dues viz. Leave Encashment etc. (if payable)."
12. Questioning the validity of the said order, the respondent filed another writ petition
before the Indore Bench of the Madhya Pradesh High Court praying inter alia for the
following relief :
"The Respondent Employer be commanded through a Writ of Mandamus to effectuate
acceptance of VRS by making payment of admissible dues without further delay together
with interest as may be deemed proper."
13
. By reason of the impugned judgment, a learned Single Judge of the said Court has
allowed the said writ application upon following the decisions of this Court in Tek Chand
v. Dile Ram [(2001) 3 SCC 290] and State of Haryana v. S.K. Singhal [(1999) 4 SCC
293], stating : 2001 AIR SCW 540
1999 AIR SCW 1427
"6. From the above principle of law and in the facts and circumstances of the case, in my
opinion, the petitioner is entitled to get the benefits of voluntary retirement scheme.
Consequently, petition of the petitioner is allowed. The respondents are directed to grant
benefits of the voluntary retirement scheme to the petitioner. Necessary payments be
made to the petitioner within a period of three months from the date of receipt of copy of
this order. No order as to cost."
14. Mr. Sanjay Ghose, learned counsel appearing on behalf of the appellant, in support of
this appeal, inter alia would submit that having regard to the fact that the offer of the
respondent was not accepted, the impugned judgment cannot be sustained.
15. Ms. Meera Mathur, learned counsel appearing on behalf of the respondent, on the
other hand, would urge :
(i) Appellant being a 'State' within the meaning of Article 12 of the Constitution of India
was bound to act fairly and reasonably.
(ii) Having regard to the scope and purport of the Voluntary Retirement Scheme floated
by it as also the fact that the respondent had applied pursuant thereto in time which was
one of the relevant factors which having been approved by the competent authority, a
legal right accrued in favour of the respondent.
16. Indisputably, Appellant is a public sector undertaking. It, however, at the relevant
time was a sick company. A financial burden was cast on it in meeting the
aforementioned Scheme.
17. When a scheme is floated for voluntary retirement, it constitutes an offer to treat. It is
not an offer stricto sensu. Only when pursuant to the said invitation to treat, an employee
opts for such a scheme, it constitutes an offer. When such an offer is made, it is required
to be accepted.
The matter relating to implementation of the said offer would indisputably be governed
by the terms and conditions of the scheme. Does it contain any provision for automatic
approval of an offer made by the employee is the question? The High Court has
proceeded to hold in view of the decision of this Court in S.K. Singhal (supra) that there
was no requirement of an order of acceptance of the notice to be communicated to the
employee nor non-communication thereof should be treated as amounting to withholding
of permission. 1999 AIR SCW 1427
18. The High Court, however, with respect, failed to read the decision in the factual
matrix obtaining therein. It was a case where construction of sub-rule (1) of Rule 5.32(B)
of the Punjab Civil Services Rules was in question. What was, therefore, necessary in
terms of the said Rule was a notice to retire and not a request seeking permission to retire.
What was contemplated was seeking exemption for the three months period. In terms
thereof, failure to refuse to grant permission attracted the acceptance clause from the date
of expiry of the said period. In the light of the aforementioned facet of the Scheme, it was
held :
"18. In the case before us sub-rule (1) of Rule 5.32(B) contemplates a "notice to retire"
and not a request seeking permission to retire. The further "request" contemplated by the
sub-rule is only for seeking exemption from the 3 months' period. The proviso to sub-rule
(2) makes a positive provision that "where the appointing authority does not refuse to
grant the permission for retirement before the expiry of the period specified in sub-rule
(1), the retirement shall become effective from the date of expiry of the said period. The
case before us stands on a stronger footing than Dinesh Chandra Sangma case so far as
the employee is concerned. As already stated Rule 2.2 of the Punjab Civil Services
AIR 1978 SC 17
@page-SC2452
Rules Vol. II only deals with a situation of withholding or withdrawing pension to a
person who has already retired."
19
. Our attention has also been drawn to a decision of this Court in Manjushree Pathak v.
Assam Industrial Development Corpn. Ltd. and Others [(2000) 7 SCC 390] wherein
although Clause 8.1 of the Scheme provided for a discretion on the part of the
Management to accept or reject the request from any employee for voluntary retirement
viewing the organizational requirements and any other relevant factors, para 2 of the
prescribed application form was to the following effect : 2000 AIR SCW 3077
"I, of my own accord and without any external pressure and coercion, am opting for
voluntary retirement under the said Scheme. I shall be obliged if you kindly accept my
option for voluntary retirement with immediate effect."
Appellant therein, thus, made a request in the said form for its acceptance with immediate
effect. For a period of 10 days, no response thereto was made. On that date, no vigilance
enquiry or any disciplinary proceeding was pending against him. It was in the
aforementioned situation, this Court observed :
"........ We are unable to understand why the Managing Director of the respondent
Corporation did not accept the same although it was required to be accepted with
immediate effect as per para 2 of the prescribed application form. No doubt, as per clause
8.1 of the Scheme extracted above, the management had discretion to accept or reject the
request from any employee for voluntary retirement viewing the organisational
requirement and any other relevant facts but that does not mean that the respondent
Corporation being an authority coming within the purview of Article 12 of the
Constitution can abdicate its duty to act reasonably and fairly in exercise of discretion. It
is strange as to why the Managing Director of the respondent Corporation, the competent
authority to accept the application made for the voluntary retirement, did not act on it at
all till 17-2-1996. He ought to have exercised his discretion as per clause 8.1 if not
immediately at least within a reasonable time. The last para of Memorandum No.
AIDC/Estt./1485/93/746-51 dated 20-5-1993/21-5-1993 issued by the respondent
Corporation reads thus :
"The Corporation has thus offered a unique opportunity. It is now for all eligible and
interested employees of the Corporation to avail of this golden opportunity in a big way."
13. As per sub-clause (i) of clause 5 of the Scheme, once an employee applied for
voluntary retirement it could not be withdrawn. The appellant wanted to avail this golden
opportunity. With this background it is not known as to why her application was not
accepted. From the letter of the appellant dated 23-1-1996, it is clear that she informed
the Managing Director of the respondent Corporation that there was no need to place her
application before the Board and he himself was competent to accept it. The non-
response of the respondent Corporation to the letters of the appellant dated 23-1-1996,
14-2-1996 and 15-2-1996 and issuing of show-cause notice by the respondent
Corporation subsequently, clearly indicate that all was not well with the respondent
Corporation in dealing with her application seeking voluntary retirement. A subsequent
complaint alleging indulgence of the appellant in political activities was not germane to
the consideration of the application of the appellant, having regard to the relevant factors
mentioned in clause 8.1 of the Scheme particularly when there was no infirmity or
impediment in terms of the Scheme in considering and accepting the application of the
appellant for voluntary retirement, having regard to the fact that the appellant on her part
did what all was required to be done."
The said decision also cannot be said to have any application whatsoever in the instant
case.
20. Subject, of course, to the terms of "invitation to treat" as also those of the offer as
envisaged under the Indian Contract Act, an offer has to be accepted. Unless an offer is
accepted, a binding contract does not come into being. A Voluntary Retirement Scheme
contemplates cessation of the relationship of master and servant. The rights and
obligations of the parties thereto shall become enforceable only on completion of the
contract. Unless such a stage is reached, no valid contract can be said to have come into
force. Acceptance of an offer must, therefore, be communicated.
21
. In Bank of India v. O.P. Swarnakar [(2003) 2 SCC 721), this court held : 2003 AIR
SCW 313
@page-SC2453
"60. Acceptance or otherwise of the request of an employee seeking voluntary retirement
is required to be communicated to him in writing..."
22. What is the meaning of the word "communication" has been noticed by this Court in
State of Punjab v. Amar Singh Harika [AIR 1966 SC 1313] in the following terms :
"It is plain that the mere passing of an order of dismissal would not be effective unless it
is published and communicated to the officer concerned. If the appointing authority
passed an order of dismissal, but does not communicate it to the officer concerned,
theoretically it is possible that unlike in the case of a judicial order pronounced in Court,
the authority may change its mind and decide to modify its order."
[See also BSNL v. Subash Chandra Kanchan (2006) 8 SCC 279]. 2006 AIR SCW 5070
A distinction, however, has always been made by this Court as to cessation of a contract
of service by way of punishment vis-avis an order of suspension which does not bring
about such a cessation, as for example suspension. [See State of Punjab v. Khemi Ram
AIR 1970 SC 214].
23
. In MCD v. Qimat Rai Gupta [(2007) 7 SCC 309], this Court opined : 2007 AIR
SCW 4952
"27. An order passed by a competent authority dismissing a government servant from

services requires communication thereof as has been held in State of Punjab v. Amar
Singh Harika but an order placing a government servant on suspension does not require
communication of that order. (See State of Punjab v. Khemi Ram)" AIR 1966 SC 1313
AIR 1970 SC 214
24. Therefore, there cannot be any doubt whatsoever that communication of the
acceptance of offer was necessary. An internal noting does not constitute a
communication. Even in a case of order of suspension, only when the case goes out of the
control of the appropriate authority, actual communication may not be necessary.
25. If for good and sufficient reasons, the competent authority did not communicate its
decision, in our opinion, the respondent did not derive any legal right. Such a legal right
cannot be claimed only on the basis of the letter of the General Manager dated
26.09.2000. What was communicated there was the administrative approval. However, it
was also categorically stated therein that the Head Office had not sanctioned the funds for
payment of VRS. It is in that situation, the request of the respondent to relieve him from
his duties was not acceded to. Respondent continued in his service after 1.08.2000. He
had been drawing his salary and other perks. There is nothing on record to show that he
drew his salaries without prejudice to his rights and contentions. If he had drawn his
salary for the entire period during which he was in service and reached the age of
superannuation, by reason thereof, he must be held to have waived his right, if any.
26. An offer for voluntary retirement must be made and accepted so long the relationship
of an employer and employee continues, subject of course to the rules to the contrary.
Such relationship would come to an end on the date on which the employee reaches his
age of superannuation.
27. The contents of the letter dated 26.09.2000, therefore, indicate that although
administrative approval had been granted but no final decision had been taken.
28. We, therefore, are of the opinion that in absence of the communication of the offer of
the respondent, the respondent derived no legal right to obtain the benefits of the
voluntary retirement scheme.
29. It was submitted by Ms. Mathur that by asking the respondent to continue in service,
the appellant has taken away the right of an employee to continue in service.
We are unable to accept the said contention. By reason of a mere offer to retire
voluntarily, in terms whereof employee was to get some more monetary benefits by itself,
did not confer any legal right on him.
30. For the said purpose, it is of some significance to notice that Clause 3.1 of the
Scheme provides for acceptance of an employee's offer for voluntary retirement. The
scheme postulates that the appointing authority concerned would be competent not to
accept the offer.
By reason of Clause 3.2 of the Scheme, the management reserved a right to accept or
reject an employee's offer under the Scheme. The said right is absolute and is not hedged
by any condition whatsoever. The procedure provided for acceptance also
@page-SC2454
postulates that not only the offer has to be accepted, an order is required to be issued that
the post falling vacant in all cases shall stand abolished simultaneously. Issuance of such
an order, simultaneously with acceptance of resignation, therefore, plays an important
role. Admittedly, no such order was also issued by the appellant.
31. Clause 4 of the Scheme provides for the grant of benefits under the Scheme.
Respondent has been paid his provident fund dues, accumulated earned leave as also
gratuity. What has not been paid to him is the 'ex gratia payment'. However, such ex
gratia payment was to be made equivalent to one and a half month's emoluments for each
completed year of service or the monthly emoluments at the time of voluntary retirement
multiplied by the remaining months of service before normal date of retirement,
whichever is lower. Thus, even the said provision contemplates that some service should
remain. If no period of service remained, even ex gratia payment could not be made.
32. For the reasons aforementioned, we are of the opinion that the impugned judgment
cannot be sustained and is set aside accordingly. The appeal is allowed. No costs.
Appeal allowed.
AIR 2008 SUPREME COURT 2454 "State of M. P. v. Anshuman Shukla"
-2008.
State of M. P. and Anr. v. Anshuman Shukla.
(A) M.P. Madhyastham Adhikaran Adhiniyam (29 of 1983), S.3 - WORDS AND
PHRASES - EVIDENCE - Authorities under Act - Are 'Courts' within meaning of S.3 of
Evidence Act 1872.
(B) M.P. Madhyastham Adhikaran Adhiniyam (29 of 1983), S.19 - REVISION - HIGH
COURT - LIMITATION - LARGER BENCH - Revision under - Entertaining by High
Court - Condonation of delay - Question as to applicability of - Provisions of S.5 of
Limitation Act 1963 - Decision in Nagar Palika Parishad, Morena not being correctly
decided matter referred to Larger Bench.
Limitation Act (36 of 1963), S.5. (Para 32)
2004 (2) MPJR 374 (Overruled) 7, 8, 9, 10, 32
2003 AIR SCW 908 : AIR 2003 SC 1543 (Ref.) 8, 29, 31
2001 AIR SCW 3994 : AIR 2001 SC 4010 : 2001 CLC 1536 (Ref.) 8, 29, 30
1995 AIR SCW 3389 : AIR 1995 SC 2272 8, 26, 28, 31
1989 Lab IC 2047 (Pat) 20
AIR 1985 SC 1279 19
AIR 1981 SC 723 : 1981 Cri LJ 283 18
AIR 1980 SC 1896 : 1980 Lab IC 1004 (Ref.) 20
AIR 1976 AP 270 18
AIR 1979 SC 1725 : 1979 Tax LR 1180 20
AIR 1977 SC 2155 (Ref.) 20
1975 Cri LJ 1939 (Pat) 18
AIR 1974 SC 480 (Ref.) 24
AIR 1970 SC 1 (Ref.) 21
(1969) 71 Bom LR 732 18
AIR 1967 SC 1494 : 1967 Cri LJ 1380 (Ref.) 18
1967 All LJ 5 18
AIR 1965 Pat 227 18
AIR 1961 SC 1669 20
AIR 1956 SC 66 : 1956 Cri LJ 156 (Ref.) 18
AIR 1956 SC 153 : 1956 Cri LJ 326 18
AIR 1954 Pat 289 : 1954 Cri LJ 942 18
AIR 1950 SC 188 19
(1878) ILR 4 Cal 483 (FB) 17
S.K. Dubey, Sr. Advocates, B.S. Banthia, Vikas Upadhyay, Yogesh Tiwari, for
Appellants;
Judgement
2. Applicability of Section 5 of the Limitation Act, 1963 (for short the 1963 Act) in the
matter of entertaining a revision application before the High Court in terms of Section 19
of the Madhya Pradesh Madhyastham Adhikaran Adhiniyam, 1983 (for short the Act) is
involved in this appeal which arises out of a judgment and order dated 30th June, 2005
passed by a Full Bench of Madhya Pradesh High Court at Jabalpur in Civil Revision No.
1330 of 2003.
3. Before embarking on the said question we may notice the statutory provisions of the
Act for resolution of the legal issue.
The Act came into force with effect from 1st March, 1985. It was enacted to provide for
the establishment of a Tribunal to arbitrate on disputes to which the State Government or
a Public Undertaking (wholly or
@page-SC2455
substantially owned or controlled by the State Government), is party, and for matters
incidental thereto or connected therewith.
The Arbitral Tribunal is constituted in terms of Section 3 of the Act for resolving all
disputes and differences pertaining to works contract or arising out of or connected with
execution, discharge or satisfaction of any such works contract.
Section 7 provides for reference to Tribunal. Such reference may be made irrespective of
the fact as to whether the agreement contains an arbitration clause or not. Section 7-A
provides for the particulars on the basis whereof the reference petition is to be filed.
Section 7-B provides for limitation for filing an application, which is in the following
terms :-
"7-B. Limitation. - (1) The Tribunal shall not admit a reference petition unless -
(a) the dispute is first referred for the decision of the final authority under the terms of the
works contract; and
(b) the petition to the Tribunal is made within one year from the date of communication
of the decision of the final authority:
Provided that if the final authority fails to decide the dispute within a period of six
months from the date of reference to it, the petition to the Tribunal shall be made within
one year of the expiry of the said period six months.
(2) Notwithstanding anything contained in sub-section (1), where no proceeding has been
commenced at all before any Court proceeding the date of commencement of this Act or
after such commencement but before the commencement of the Madhya Pradesh
Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be
entertained within one year of the date of commencement of Madhya Pradesh
Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether
a decision has or has not been made by the final authority under the agreement.
(2-A) Notwithstanding anything contained in sub-section (1), the Tribunal shall not admit
a reference petition unless it is made within three years from the date on which the works
contract is terminated, foreclosed, abandoned or comes to an end in any other manner or
when a dispute arises during the pendency of the works contract : Provided that if a
reference petition is filed by the State Government, such period shall be thirty years."
4. Chapter IV of the Act contains Sections 16 to 18. Section 16 deals with passing of an
award by the Tribunal and/or its Benches. Section 17 gives finality to the award made
thereunder. Such awards made, in terms of Section 18 would be deemed to be a decree
within the meaning of Section 2 of the Code of Civil Procedure, 1908. Section 19 confers
a power of revision on the High Court, sub-section (1) whereof reads as under :-
"19. High Court's power of revision. - (1) The High Court may suo motu at any time or
on an application for revision made to it within three months of the award by an
aggrieved party, call for the record of any case in which an award has been made under
this Act by issuing a requisition to the Tribunal and upon receipt of such requisition, the
Tribunal shall send or cause to be sent to that Court the concerned award and record
thereof :
Provided that any application for revision may be admitted after the prescribed period of
three months, if the applicant satisfies the High Court that he had sufficient cause for not
preferring the revision with such period.
Explanation. - the fact that the applicant was misled by any order, practice or judgment or
the High Court in ascertaining or computing the prescribed period may be sufficient
cause within the meaning of this sub-section."
5. We may notice that the proviso thereto had been appended by the M. P. Act No. 19 of
2005.
6. The State of M. P. filed a revision application before the High Court. It was barred by
80 days.
7. A question as to whether the High Court could have condoned the delay or not came up
for consideration before a Division Bench of the said Court in Nagarpalika Parishad,
Morena v. Agrawal Construction Co. 2004 (II) MPJR 374. It was held therein that the
provisions of Section 5 of the 1963 Act being not available, the delay cannot be
condoned.
8
. Reference was thereafter made to a 1995 AIR SCW 3389
@page-SC2456
Full Bench in the light of the decision rendered by this Court in Mukri Gopalan v.
Cheppilat Puthanpuravil Aboobacker (1995) 5 SCC 5. In the meantime the decision in
Nagar Palika Parishad, Morena (supra) came up for consideration before this Court. The
decision of the Division Bench was affirmed by this Court stating :-
"Heard Mr. Sushil Kumar Jain, learned counsel for the petitioner at length.
In our view there is no infirmity in the impugned judgment. The authority in the case of
Nasiruddin and others v. Sita Ram Agarwal reported in (2003) 2 SCC 577 has been
correctly followed. Same view has also been taken by this Court in the case of Union of
India v. Popular Construction Co. reported in (2001)8 SCC 470. 2003 AIR SCW 908
2001 AIR SCW 3994
The Special Leave Petition stands dismissed with no order as to costs."
9. In the meanwhile the matter was referred again for consideration by a larger Bench
which included the question as to whether the decision of this Court in regard to the
dismissal of the special leave petition constitutes a binding precedent. The questions
referred for decisions of the larger Bench were :-
"(a) Whether the power of High Court for exercise of revisional jurisdiction under
Section 19 of M. P. Madhyastham Adhikaran Adhiniyam, 1983 is totally constricted and
restricted to a period of three months of the passing of the award which is the limitation
prescribed for an aggrieved party or it can exercise such power of revision suo motu
within a reasonable period of time that can travel beyond three months?
(b) Whether the decision tendered in the case of Nagarpalika Parishad v. Agrawal
Construction Co. 2004 (2) MPJR 374 would be a binding precedent?"
10. The Constitution Bench found that the decision of this Court in Nagarpalika Parishad
(supra) constitutes a binding precedent and it was bound thereby.
It was held that Section 5 of the Limitation Act has no application to a revision
application filed before the High Court under Section 19 of the Act.
11. Mr. S. K. Dubey, learned senior counsel appearing on behalf of the appellants, would
submit that the Arbitration Tribunal being a Court, in view of the provisions contained in
sub-section (2) of Section 29 of the Limitation Act, the High Court committed a serious
error in opining that it did not have any power to condone the delay.
12. The Act is a special Act. it provided for compulsory arbitration. It provides for a
reference. The Tribunal has the power of rejecting the reference at the threshold.
It provides for a special limitation. It fixes a time limit for passing an Award. Section 14
of the Act provides that proceeding and the award can be challenged under special
circumstances. Section 17, as noticed hereinbefore, provides for finality of the award,
notwithstanding anything to the contrary contained in any other law relating to
arbitration.
13. The High Court exercises a limited power. The revisional power conferred upon the
High Court is akin to Section 115 of the Code of Civil Procedure. It has the power to
decide as to whether the Tribunal has misconducted itself or the proceedings or has made
an award which is invalid in law or has been improperly procured by any party to the
proceedings.
14. As noticed hereto before the proviso appended to Section 19 was added by M. P. Act
No. 19 of 2005. Prior thereto the High Court, even at the instance of a party, despite
expiry of the period of limitation could have exercised its suo motu jurisdiction.
15. It is a trite law that provisions of the Limitation Act, 1963 shall apply to a Court. It
has no application in regard to a Tribunal or persona designata. There exists a distinction
between a Court and the Tribunal.
16. The very fact that the authorities under the Act are empowered to examine witnesses
after administering oath to them clearly shows that they are 'Court' within the meaning of
the Evidence Act. It is relevant to refer to the definition of 'Court' as contained in Section
3 of the Indian Evidence Act which reads as follows :-
"Court" includes all Judges and Magistrates, and all persons, except arbitrators, legally
authorised to take evidence.
The Tribunal has been confirmed various powers.
There, therefore, in our opinion, cannot be any doubt whatsoever that the authorities
under the act are also 'Court' within the meaning of the provisions of the Indian Evidence
Act.
@page-SC2457
17. The definition of 'Courts' under the Indian Evidence Act is not exhaustive (See The
Empress v. Ashootosh Chuckerbutty and others ILR (4) Cal. (15) 483 (FB). Although the
said definition is for the purpose of the said Act alone, all authorities must be held to be
Courts within the meaning of the said provision who are legally authorised to take
evidence. The word 'Court' under the said Act has come up for consideration at different
times under the different statutes.
18. The Commissioner who has been authorised to take evidence of the witnesses has
been held to be a Court (See Jyoti Narayan v. Brijnandan Sinha, AIR 1954 Patna 289).
The Rent Controller has been held to be a Court (See G. Bulliswamy v. Smt. C.
Annapurnamma, AIR 1976 Andhra Pradesh 270. The Election Tribunals have been held
to be Courts (See Prem Chand v. Sri O. P. Trivedi and Others, AIR 1967 All. L. J. 5 at
page 7). Coroners before whom evidence can be adduced have been held to be Courts
(See Tanajirao Martinrao Kadambande v. H. J. Chinoy, 71 Bombay Law Reporter 732.
In Brijnandan Sinha v. Jyoti Narain AIR 1956 SC 66 it has been held that any Tribunal or
authority whose decision is final and binding between the parties is a Court. In the said
decision, the Supreme Court, while deciding a case under Court of Enquiry Act held that
a Court of enquiry is not a Court as its decision is neither final nor binding upon the
parties. In Vindar Kumar Satya v. State of Punjab, AIR 1956 SC 153 the Supreme Court
has made a broad distinction of a Court and quasi-judicial Tribunal. In the Sitamathi
Central Cooperative Bank Ltd. v. Jugal Kishore Sinha, AIR 1965 Pat 227 a Division
Bench of the Patna High Court has held that Assistant Registrars appointed under the
Bihar and Orissa Co-operative Societies Act to be Courts. In the said decision this Court
has held that, when a question arises as to whether the authority constituted under a
particular Act exercising judicial or quasi-judicial power is a Court or not, then the
following tests must be fulfilled before the said authority can be termed as a Court:
"(a) the dispute which is to be decided by him must be in the nature of a civil suit:
(b) the procedure for determination of such dispute must be judicial procedure; and
(c) the decision must be a binding nature."
The aforementioned judgment has been affirmed by the Supreme Court in the case of
Thakur Jugal Kishore Sinha v. Sitamarhi Central Co-op. Bank Ltd., AIR 1967 SC 1494
In Chandra Kishore Jha v. State of Bihar, 1975 BBCJ 656, a Division Bench of the Patna
High Court has held that the Compensation Officer acting under the Bihar Land Reforms
Act, 1950, to be a Court as the said officer exercises judicial power deciding civil dispute
and pass an order which is final and binding between the parties. In S. K. Sarkar,
Member, Board of Revenue, U. P. Lucknow v. Vinoy Chandra Misra, (1981) 1 SCC 436
the Board of Revenue has been held to be a Court subordinate to the High Court for the
purpose of the provisions of the Contempt of Courts Act. 1975 AIR SCW 1939
AIR 1981 SC 723
19
. However, in The Bharat Bank Ltd., Delhi v. The Employees of the Bharat Bank Ltd.
Delhi, AIR 1950 SC 188 it has been held that a 'Labour Court' although has all the
trappings of the Court but still is not a Court in technical sense. In Sakuru v. Tanaji,
(1985) 3 SCC 590, the Supreme Court has held that the statutory authorities did not come
within the purview of the definition of Courts for the purpose of Section 5 of the
Limitation Act. AIR 1985 SC 1279
20
. In K. P. Verma v. State of Bihar, 1988 PLJR 1036, which arose out of a case under the
Bihar Administrative Tribunal Act, a Division Bench of the Patna High Court held as
under :- 1989 Lab IC 2047
"32. The modern sociological condition as also the needs of the time have necessitated
growth of administrative law and administrative law tribunal. Executive functions of the
State calls for exercise of discretion and judgment also and not a mere dumb obedience of
the orders so that the executive also forms quasi-judicial and quasi legislative functions
and, in this view of the matter, the administrative adjudication has become as
indispensable part of the modern state activity. However, judicial process differs from
administrative adjudicative process. Sometime administrative adjudication is understood
as the same thing as administration of justice, though both the terms relate to deciding
upon disputes yet over the
@page-SC2458
years a great many difference have been noticed in them which may be placed in the table
as under :-
Judicial Adjudication
1. In this the disputes are decided by the persons specially trained in law.
2. The Courts normally cannot move a matter by themselves, e.g. suo motu.
3. The Courts are bound by earlier precedents and settled principles of Law.
4. The Courts decisions are objective.
5. Normally only the parties directly interested in the lis take part in it.
6. The Law provides many safeguards against the arbitrary decisions of the Courts in the
shape of procedures, appeals, revisions, reviews, etc. etc.
7. The judgments must be given with detailed reasons by the Courts.
8. Judges enjoy a legal immunity from responsibility of acts done in discharge of their
duties and their conduct cannot be a subject of discussion in any form, even in
Parliament.
9. The Laws of evidence and other principles of Common Law are fully applicable to the
Courts.
10. The justice in Courts is without 'bias' or 'affection or ill will'.
Administrative Adjudication
In this the disputes are decided by the persons having administrative experience.
The administrators may initiate action by themselves.
The administrators may decide each case on its merits.
The decisions of administrators are usually subjective.
In this even other citizens may appear in the interest of public.
In administrative adjudication, normally the decisions are final and there is a much
greater scope for arbitrary decisions of the adjudicators.
The administrative adjudicators may pass even cryptic non speaking orders.
This is not so normally in case of Tribunals unless the law incorporating them may
provide.
The Tribunals are not bound by any such law and need to follow only the principles of
Natural Justice.
These have to apply the special policy and thus cannot view things with that 'cold
neutrality of the impartial Judge.'
(Schwarts in American Administrative Law. P. 61)"
Dr. Durga Das Basu in his Administrative Law, Second Edition, at page 280 has also
given broad features which characterise a 'Court'.
However, this broad distinction may not be held to be applicable as how in India apart
from the Administrative Tribunals pure and simple as in the United Kingdom or the
United States of America, various special Tribunals are being constituted, and that
although they are not regular 'Courts' and have judicial authorities but have all the
trappings of the Court. The number of such Tribunals is on the increase owing to the
welfare role taken up by the State under our Constitution, as such so that "the number of
Indian statutes which constitute administrative authorities, purely administrative and
quasi-judicial, is legion." (See Durga Das Basu, Administrative Law, 2nd Edition at page
285).
"Although in its constitution, it is a Tribunal as the source of authority is by reason of a
statutory provision and it is empowered by the statutory provisions to exercise any
adjudicating power of the State. (See A. P. H. L. Conf. v. Sangma, AIR 1977 SC 2155
(2163), e. g. the Election Commission, deciding disputes as to Party Symbols (ibid); The
Settlement Commission under S. 2451 of the Income-tax Act (C. I. T. v. Bhattacharya,
AIR 1979 SC 1724); Arbitrator appointed under S. 10A of the Industrial Disputes Act
(Gujarat Steel Tubes v. Mazdoor Union, AIR 1980 SC 1896); The Central Government,
exercising powers under S. 111(3) of the Companies Act (Harinagar Sugar Mills v.
Shyam Sundar, AIR 1961 SC 1669 (1679)."
In this connection, it may further be necessary to bear in mind that the root of the word
"Tribunal" is Tribunal which is a Latin word meaning a raised platform on which the
seats of the tribunals or the magistrates are placed. Thus, all Courts are tribunals but all
tribunals are not Courts.
However, there cannot be any doubt that these administrative tribunals or the
administrative tribunals or the administrative Courts are authorities outside the ordinary
Court system which interpret and apply the
@page-SC2459
laws when acts of public administration are attacked in formal suits or by other
established methods. In essence the Administrative Tribunals may be called a specialized
Court of law, although it does not fulfil the criteria of a law Court as is understood
inasmuch as it cannot like an ordinary law Court entertain suits on various matters,
Including the matter relating to the vires of legislation. However, such a Tribunal like
ordinary law Courts, as found hereinbefore, are bound by the rules of evidence and
procedure as laid down under the law and are required to decide strictly, as per the law.
O. Hood Philips and Paul Jackson in O. Hood Phillips Constitutional and Administrative
Law, Sixth Edition, at page 575 observed as follows. -
"Administrative Jurisdiction" or "Administrative Justice" is a name given to various ways
of deciding disputes outside the ordinary Courts. It is not possible to define precisely
what bodies constitute the "ordinary Courts" although this expression was used in the
Tribunals and Inquiries Acts 1958 and 1971. There are some bodies that might be placed
under the heading either of ordinary Courts or of special tribunals. Guidance cannot be
found in the name of a body; the Employment Appeal Tribunal, for example, is a superior
Court of record."
At page 576 under the Chapter "Special Tribunals" the author has stated as follows :-
"These are independent statutory tribunals whose function is judicial. They are often
called "administrative tribunals" especially those more closely related by appointment or
policy to the Minister concerned, because the reasons for creating them are
administrative. The tribunals are so varied in composition, method of appointment,
functions and procedure, and in their relation to Ministers on the one hand and the
ordinary Courts on the other, that a satisfactory formal classification is impossible.'
It, therefore, in my opinion, logically follows that the tribunal, although not a law Court
in its true sense but is a Court in a limited sense and is bound to act independently and
impartially and exercise judicial authority without any fear or favour from any person
and, thus, would be a Court within the meaning of the provisions of the Evidence Act and
the Contempt of Courts Act."
21. A Court for the purpose of application of the Limitation Act should ordinarily be
subordinate to the High Court. The High Court exercises its jurisdiction over the
subordinate Courts inter alia in terms of Section 115 of the Code of Civil Procedure.
While the High Court exercises its revisional jurisdiction, it for all intent and purport
exercises an appellate jurisdiction. (See -Shankar Ramchandra Abhyankar v. Krishnaji
Dattatreya Bapat AIR 1970 SC 1).
22. The provisions of the Act referred to hereinbefore clearly postulate that the State of
Madhya Pradesh has created a separate forum for the purpose of determination of
disputes arising inter alia out of the works contract. The Tribunal is not one which can be
said to be a Domestic Tribunal. The Members of the Tribunal are not nominated by the
parties. The disputants do not have any control over their appointment. The Tribunal may
reject a reference at the threshold. It has the power to summon records. It has the power
to record evidence. Its functions are not limited to one Bench. The Chairman of the
Tribunal can refer the disputes to another Bench. Its decision is final. It can award costs.
It can award interests. The finality of the decision is fortified by a legal fiction created by
making an Award a decree of a Civil Court. It is executable as a decree of a Civil Court.
The Award of the Arbitral Tribunal is not subject to the provisions of the Arbitration Act,
1940 and the Arbitration and Conciliation Act, 1944. The provisions of the said Acts have
no application.
23. We are, therefore, of the opinion that the Tribunal for all intent and purport is a Court.
The Tribunal has to determine a lis. There are two parties before it. It proceedings are
judicial proceeding subject to the revisional order which may be passed by the High
Court.
24
. In Hukumdev Narain Yadav v. Lalit Narain Mishra (1974) 2 SCC 133 this Court was
considering a question whether an Election Tribunal while sitting on a Saturday, which is
not a usual working day, would function as Court. It was opined :- AIR 1974 SC 480
"10. Now that we have held that the Court is not closed and the petition could have been
presented to the Registrar on Saturday, March 18. 1972, the question would be, does
Section 5 of the Limitation Act apply to enable the petitioner to show sufficient
@page-SC2460
cause for not filing it on the last day of limitation, but on a subsequent day? Whether
Section 5 is applicable to election petitions filed under Section 81 of the Act will depend
upon the terms of Section 29(2) of the Limitation Act. Whether Section 5 could be
invoked would also depend on the applicability of sub-section (2) of Section 29 of the
Limitation Act to election petitions. Under this sub-section where a special or local law
provides for any suit, appeal or application a period different from the period prescribed
therefor by the Schedule, the provisions specified therein will apply only insofar as and to
the extent to which they are expressly excluded by such special or local law. Under
Section 29(2) of the Limitation Act of 1908 as amended in 1922, only Section 4, Sections
9 to 18 and Section 22 of that Act applied ordinarily unless excluded by a special or local
law. Thus unless Section 5 was made applicable by or under any enactment the discretion
of the Court to extend time thereunder would not be available. Similarly Sections 6 to 8
would not apply and neither acknowledgment nor payment (under the former Sections 19
and 20) could give a fresh starting point of limitation. Even Section 5 under the old Act
was in terms inapplicable to applications unless the Section was made applicable by or
under any of the enactment. The new Section 5 is now of wider applicability and as the
objects and reasons state :
"Instead of leaving it to the different States or the High Courts to extend the application
of Section 5 to applications other than those enumerated in that Section as now in force,
this clause provides for the automatic application of this Section to all applications, other
than those arising under Order 21 of the Code of Civil Procedure, 1908, relating to the
execution of decrees. In the case of special or local laws, it will be open to such laws to
provide that Section 5 will not apply."
The present section incorporates two changes : (I) a uniform rule making it applicable to
all applications except those mentioned therein (by defining "application" as including a
"petition" in Section 2(b)); and (2) to all special and local enactments, unless excluded by
any of them. The difference in the scheme of the provisions of subsection (2) of Section
29 under the two Acts will be discernible if they are juxtaposed as under :
Section 29(2) of old Act, Section 29 (2) of new Act
Where any special or local law prescribes for any suit, appeal or application a period of
limitation different from the period prescribed therefor by the First Schedule, the
provisions of Section 3 shall apply, as if such period were prescribed therefor in that
Schedule, and for the purpose of determining any period of limitation prescribed for any
suit, appeal or application by any special or local law (a) the provisions contained in
Section 4, Sections 9 to 18, and Section 22 shall apply insofar as, and to the extent to
which, they are not expressly excluded by such special or local law; and (b) the
remaining provisions of this Act shall not apply. Where any special or local law
prescribes for any suit, appeal or application a period of limitation different from the
period prescribed by the Schedule, the provisions of Section 3 shall apply as if such
period were the period prescribed by the Schedule and for the purpose of determining any
period of limitation prescribed for any suit, appeal or application by any special or local
law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only insofar as,
and to the extent to which, they are not expressly excluded by such special or local law.
25. There cannot, therefore, any doubt whatsoever that if the Arbitral Tribunal in question
is a Court and not a persona designata, sub-section (2) of Section 29, Section 5 of the
Limitation Act would apply. It is only when the limitation provided under the Special
Law, is different from that prescribed in the Schedule appended to the Limitation Act,
sub-section (2) of Section 29 would be attracted.
26
. In Mukri Gopalan (supra) the distinction between the 'Persona Designata' and 'Court'
was noticed. It was held that the appellate authority constituted under Section 18 of the
Rent Act was a Court having all the trappings of the Courts.1995 AIR SCW 3389
27. If the Tribunal is a Court, fortiori sub-section (2) of Section 29 would apply. As it is a
Court it was not necessary for the legislature to confer power under Section 5 of the 1963
Act specifically. In that view of matter an application under Section 5 of the Limitation
Act would be maintainable.
28
. In Mukri Gopalan (supra), this Court held : 1995 AIR SCW 3389, (Para 15)
@page-SC2461
"15. After repealing of Indian Limitation Act, 1908 and its replacement by the present
Limitation Act of 1963 a fundamental change was made in Section 29 (2). The present
Section 29(2) as already extracted earlier clearly indicates that once the requisite
conditions for its applicability to given proceedings under special or local law are
attracted, the provisions contained in Sections 4 to 24 both inclusive would get attracted
which obviously would bring in Section 5 which also shall apply to such proceedings
unless applicability of any of the aforesaid sections of the Limitation Act is expressly
excluded by such special or local law. By this change it is not necessary to expressly state
in a special law that the provision contained in Section 5 of the Limitation Act shall apply
to the determination of the periods under it. By the general provision contained in Section
29 (2) this provision is made applicable to the periods prescribed under the special laws.
An express mention in the special law is necessary only for any exclusion. It is on this
basis that when the new Rent Act was passed in 1965 the provision contained in old
Section 31 was omitted. It becomes therefore apparent that on a conjoint reading of
Section 29(2) of Limitation Act of 1963 and Section 18 of the Rent Act of 1965,
provisions of Section 5 would automatically get attracted to those proceedings, as there is
nothing in the Rent Act of 1965 expressly excluding the applicability of Section 5 of the
Limitation Act to appeals under Section 18 of the Rent Act."
29
. The Full Bench, however, affirmed the decision of the Division Bench of the Madhya
Pradesh High Court on the authority of Nasirrudin and others v. Sitaram and others
(2003) 2 SCC 577 and Union of India v. Popular Construction Co. (2001) 8 SCC 470.
2003 AIR SCW 908
2001 AIR SCW 3994
30. In Popular Construction (supra) application of Arbitration and Conciliation Act, 1996
was in question. The Arbitration Act clearly provided for a limitation in the matter of
exercise of discretionary jurisdiction for condoning the delay only for a period of 30 days
and not thereafter. It was in the aforementioned situation this Court held that Section 5 of
the Limitation Act as such will have no application, as a special limitation has been
provided for.
31
. In Nasirrudin (supra) this Court was considering the applicability of Section 5 of the
Limitation Act in the matter of deposit of rent. The said question came up for
consideration in the light of the power of the Rent Controller in terms of the Rent Control
Statute in the matter of depositing the rent. In other words the question was that the
provision was directory or mandatory. It was in that view of the matter this Court
opined :- 2003 AIR SCW 908, (Paras 45, 47 and 53)
"45. On perusal of the said section it is evident that the question of application of Section
5 would arise where any appeal or any application may be admitted after the prescribed
period, if the appellant or the applicant satisfies the Court that he had sufficient cause for
not making the appeal or application within such period. Section 13(4) provides that in a
suit for eviction on the ground set forth in clause (a) of subsection (1), the tenant shall on
the first date of hearing or on or before such date, the Court may on the application fixed
in this behalf or within such time the tenant shall deposit in Court or pay to the landlord
in Court as determined under sub-section (3) from the date of such determination or
within such further time not exceeding three months as may be extended by the Court.
Thus, sub-section (4) itself provides for limitation of a specific period within which the
deposit has to be made, which cannot be exceeding three months as extended by the
Court.
It was furthermore observed :-
"47. The provisions of Section 5 of the Limitation Act must be construed having regard to
Section 3 thereof. For filing an application after the expiry of the period prescribed under
the Limitation Act or any other special statute, a cause of action must arise. Compliance
with an order passed by a Court of law in terms of a statutory provision does not give rise
to a cause of action. On failure to comply with an order passed by a Court of law, instant
consequences, are provided for under the statute. The Court can condone the default only
when the statute confers such a power on the Court and not otherwise. In that view of the
matter we have no other option but to hold that Section 5 of the Limitation Act, 1963 has
no application in the instant case."
It was observed that for entertaining an application within the meaning of the said 1995
AIR SCW 3389
@page-SC2462
provision, there should be some request. Mukri Gopalan (supra) was distinguished stating
:-
"53. Mr. Gupta, appearing on behalf of the respondent, however, placed reliance upon a
decision of this Court in Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker. Therein
this Court was concerned with extension of the period of limitation in a case wherein an
appeal was to be preferred before an Appellate Authority under the Kerala Buildings
(Lease and Rent Control) Act, 1965. As for preferring an appeal a period of limitation is
prescribed, it was held that Section 5 of the Act was applicable and, therefore, the said
decision is of no help to the respondent."
It was not dissented from.
32. We, therefore, are prima facie of the opinion that the Nagar Palika Parishad, Morena
(supra) was not correctly decided and, thus, the matter requires consideration by a Larger
Bench. It is ordered accordingly.
33. Let the records of the case be placed before the Hon'ble the Chief Justice of India for
constituting an appropriate Bench.
Order accordingly.
AIR 2008 SUPREME COURT 2462 "M. Saravana Porselvi v. A. R. Chandrasekar"
(From : Madras)*
-2008.
M. Saravana Porselvi v. A. R. Chandrasekar and Ors.
Penal Code (45 of 1860), S.498A - Criminal P.C. (2 of 1974), S.482, S.468 - CRUELTY
BY HUSBAND OR HIS RELATIVE - INHERENT POWERS - LIMITATION - Cruelty
to wife - Complainant and accused had entered into registered agreement of divorce as
per custom - Parties living separately since 10 years - Complaint of cruelty filed
thereafter - Barred by limitation - Harassment was also unbelievable - Proceedings
initiated are abuse of process of Court - Liable to be quashed - Consideration of admitted
document for exercising powers u/S.482 not illegal. (Paras 10, 12)
Gurukrishna Kumar, Ms. Srikala Gurukrishna Kumar, T. Senthil Kumar, for Appellant; V.
Karoagaraj, R. Shunmugasundaram, Sr. Advocates, S. Thananjayan, V.G. Pragasam, S.J.
Aristotic, Praburama Subramanian, for Respondents.
* Cri. O.P. No. 5392 of 2006, D/-27-10-2006 (Mad).
Judgement
2. Appellant is an advocate. She was married to Respondent No. 1 on or about 1.12.1993.
The parties indisputably are living separately since 1996. She allegedly filed a complaint
before the All Women Police Station at Virudhunagar. An enquiry was directed to be
conducted. As per the advice of the officers of the said Police Station as also the relatives
of the parties, they entered into an agreement for divorce on or about 24.7.1996. It was
registered in the office of the Joint Sub-Registrar, Virudhunagar being Registration No.
146 of 1996. Appellant also received a sum of Rs. 25,000/- towards permanent alimony
which was acknowledged by granting a stamped receipt therefor. The said purported
divorce is said to have taken place in terms of the custom prevailing in the community to
which the parties belong.
3. Admittedly, the first respondent married again in 1998. He has two children out of the
said wedlock.
4. Appellant, however, filed a complaint petition against the respondent Nos. 1, 2 and 3
herein, i.e., her husband and parents-in-law in May, 2006 before the Women Cell at
Chennai, inter alia, on the premise that the first respondent has married for the second
time which fact she came to learn on receipt of a summons in respect of a petition filed
by the first respondent under Section 13(1)(a) of the Hindu Marriage Act, 1955.
5. A First Information Report (FIR) was lodged pursuant to the said complaint which was
registered as Crime No. 5 of 2006. Respondents were arrested.
An application for quashing the said FIR was filed before the High Court. By reason of
the impugned judgment, the said application has been allowed.
6. Mr. Gurukrishna Kumar, learned counsel appearing on behalf of the appellant, would
submit that in a case of this nature, where investigation into the allegations made in the
complaint has been going on, the High Court should not have passed
@page-SC2463
the impugned judgment, upon entering into the purported defence raised by the
respondents, particularly when the State itself, in its counter affidavit filed before the
High Court, categorically stated that a prima facie case had been made out for
investigation.
7. Mr. R. Shunmugasundaram, learned Senior Counsel appearing for the State, however,
would submit that the High Court cannot be said to have committed an error as the deed
of divorce dated 24.7.1996 was a registered document and, thus, a public document. If,
therefore, execution of the said document has not been denied, the impugned judgment
should not be interfered with.
8. Mr. V. Kanakraj, learned Senior Counsel appearing on behalf of the respondent Nos. 1,
2 and 3, would submit that the mala fide on the part of the appellant is evident in view of
the fact that such a complaint petition has been filed after a period of 10 years. The
learned counsel contended that as the divorce had taken place 10 years back, it is futile to
urge that the complaint petition filed after such a long time, should not be considered to
be an abuse of the process of the Court.
9. The core question herein is as to whether the High Court, in a case of this nature, could
exercise its jurisdiction under Section 482 of the Code of Criminal Procedure.
10. The factual backdrop of the matter is not in dispute.
The customary divorce may be legal or illegal. The fact that such an agreement had been
entered into or the appellant had received a sum of Rs. 25,000/- by way of permanent
alimony, however, stands admitted. The document is a registered one. Appellant being in
the legal profession must be held to be aware of the legal implication thereof. If the
contents of the said agreement are taken to be correct, indisputably the parties had been
living separately for more than ten years. How then a case under Section 498A of the
Indian Penal Code can be said to have made out and that too at such a distant point of
time is the question, particularly in view of the bar of limitation as contained in Section
468 of the Code of Criminal Procedure. Even otherwise it is unbelievable that the
appellant was really harassed by her husband or her in-laws.
11. We are not oblivious of the fact that there does not exist any period of limitation in
respect of an offence under Section 494, as the maximum period of punishment which
can be imposed therefor is seven years.
12. But no allegation has been made out in regard to commission of the said offence so
far as the respondent Nos. 2 and 3 are concerned. If even for exercising its jurisdiction
under Section 482 of the Code of Criminal Procedure, the High Court has taken into
consideration an admitted document, we do not see any legal infirmity therein. If it is a
case of customary divorce, the question in regard to the existence of good custom may
have to be gone into in a civil proceeding. But a criminal prosecution shall not lie. It was
initiated mala fide. Thus, it is allowed to continue, the same shall be an abuse of the
process of court.
13. For the reasons aforementioned, there is no legal infirmity in the impugned judgment.
The appeal is dismissed accordingly.
Appeal dismissed.
AIR 2008 SUPREME COURT 2463 "Union Public Service Commission v. Jamuna
Kurup"
(From : Delhi)
Coram : 3 K. G. BALAKRISHNAN, C.J.I., R. V. RAVEENDRAN AND J. M.
PANCHAL, JJ.
Civil Appeal Nos. 2294-2329 of 2008 (arising out of SLP (C.) Nos.1255-90 of 2005), D/-
21 -2 -2008.
Union Public Service Commission v. Dr. Jamuna Kurup and Ors.
Constitution of India, Art.16 - Delhi Municipal Corporation Act (66 of 1957), S.90 -
EQUALITY IN PUBLIC EMPLOYMENT - MUNICIPALITIES - RECRUITMENT -
Recruitment - Age relaxation - Recruitment to posts in Municipal Corporation - Age
relaxation given inter alia to municipal employees - 'Municipal employees' would include
contract employees of Municipal Corporation.
Employment under the Municipal Corporation could be either permanent/regular or short
term/contractual. Age relaxation given to 'municipal employees' in the matter of
recruitment to posts in Municipal Corporation would therefore include persons working
on contract with the Corporation. Moreover the term 'employee' is not defined in the Act.
Nor is it defined in the advertisement.
@page-SC2464
If the intention of MCD and UPSC was to extend the age relaxation only to permanent
employees, the advertisement would have stated that age relaxation would be extended
only to permanent or regular employees of MCD or that the age relaxation would be
extended to employees of MCD other than contract or temporary employees. The fact
that the term 'employees of MCD' is no way restricted, makes it clear that the intention
was to include all employees including contractual employees. 2006 AIR SCW 844,
Disting. (Paras 12, 13)
The ordinary meaning of 'employee' is any person employed on salary or wage by an
employer. When there is a contract of employment, the person employed is the employee
and the person employing is the employer. In the absence of any restrictive definition, the
word 'employee' would include both permanent or temporary, regular or short term,
contractual or ad hoc. (Para 13)
2006 AIR SCW 844 : AIR 2006 SC 1165 : 2006 Lab IC 1020 (Disting.) 9, 14
AIR 1978 SC 17 : 1977 Lab IC 1852 (Ref.) 14
AIR 1967 SC 1889 (Ref.) 14
Ranjit Kumar, Sr. Advocate, Ms. Lalit Mohini Bhat, Ms. Hetu Arora, Naveen R. Nath,
Rameshwar Prasad Goyal, Pardeep Gupta, K.K. Mohan, Suresh Bharati, Sanjiv Sen,
Praveen Swarup, Ravi Kant Jain, Dr. Kailash Chand, Ms. Asha G. Nair, Ashok Bhan, D.
S. Mahra, for appearing parties.
Judgement
K. G. BALAKRISHNAN, C.J.I. :- Leave granted. Heard counsel.
2. The Union Public Service Commission (for short 'UPSC') has filed these appeals
against the judgment dated 26.4.2004 of a learned Single Judge of Delhi High Court in
WP (C) Nos. 4787-4823/2004.
3. The Municipal Corporation of Delhi (respondent No. 38 herein, for short 'the
Corporation' or 'MCD') had sent a requisition to UPSC the appellant herein for recruiting
45 Ayurvedic Vaids (that is. Medical Officers, Ayurved). As the process of selection by
UPSC was likely to take considerable time the Corporation issued an advertisement dated
18.10.2000 inviting applications for contract appointment (on the basis of a walk-in
interview) on a fixed salary of Rs. 10,000/-for a period of six months or till such time
such posts are filled on regular basis through UPSC, whichever was earlier.
4. It is stated that respondents 1 to 37 (for short 'respondents') applied for such
contractual employment and were appointed in April, 2001. The letters of appointment on
contract basis were issued to respondents in terms of the advertisement. As the UPSC
selections was delayed, the contract appointment of respondents were renewed for
periods of six months each by office orders issued in October, 2001, May, 2002, October,
2002, May, 2003 and October, 2003.
5. By advertisement dated 13.3.2004 (corrected on 27.3.2004) UPSC advertised 45 posts
of Ayurvedic Vaids. The term regarding age limit in the said advertisement prescribed that
the age limit of the candidate (as on 1.4.2004) should not exceed 35 years. It further
provided :
"Age is relaxable for employees of Municipal Corporation of Delhi up to five years... Age
is relaxable up to five years for SC/ST, and up to three years for OBC in respect of
vacancies reserved for them. Age is also relaxable for employees of the Government of
India and Union Territories up to five years."
6. Respondents filed WP(C) Nos. 4787-4823/2004 in Delhi High Court seeking a
direction to the Corporation to regularize their services in the vacant posts of Medical
Officer (Ayurved) with effect from the respective dates of their initial appointment.
Alternatively, they prayed that if the High Court was of the view that they could be
regulated only pursuant to UPSC selection process, then to grant them due weightage for
the service rendered by them on contract basis, and also extend the age relaxation by five
years to those who were aged more than 35 years and had worked on contract basis for
three years. They also sought a direction to the Corporation to extend the benefit of
regular pay scale with consequential benefits and perks attached to the regular post of
Ayurvedic Vaids, from the date of their initial appointment. However, when the writ
petitions came up for hearing, the respondents (Writ petitioners) submitted that they
would be satisfied if two directions were issued, the first being that those who had
become overaged should be given the benefit of age relaxation and second, they should
not be replaced by persons other than regular appointees.
@page-SC2465
7. The learned Single Judge was of the view that the writ petitioners were entitled to the
said two limited reliefs. Therefore, he disposed of the writ petitions by order dated
26.4.2004 directing that those writ petitioners who had crossed 35 years would be entitled
to the benefit of age relaxation corresponding to the number of years they had worked as
contractual Medical Officers (Ayurved) under the Corporation and should be treated as
eligible with reference to age requirement. He also directed that the services of the writ
petitioners should not be replaced by anyone save and except those appointed on regular
basis after undergoing the selection process.
8. The UPSC chose to approach this Court by filing SLPs against the order of the learned
Single Judge, bypassing the remedy of appeal to the Division Bench, in view of the
pendency of a similar issue before this Court in SLP (C) No. 15714/2003 (UPSC vs.
Girish Jayantilal Vaghela). The special leave petitions from which these appeals arise,
were originally tagged to Vaghela's case on 19.1.2005, but by a subsequent order dated
1.12.2005, they were delinked and ordered to be heard separately.
9
. The UPSC contended that the term 'age is relaxable for employees of Municipal
Corporation of Delhi' in the advertisement dated 13.3.2004, is intended to refer only to
regular and permanent employees of MCD. It was also contended that being short term
contract employees, the respondents cannot claim to be 'employees of MCD'. For this
purpose reliance was placed on the decision of this Court in UPSC vs. Girija Jayantilal
Vaghela, 2006 (2) SCC 482, wherein this Court held that persons working on short term
contract basis cannot claim the status of Government Servants. UPSC submitted that on a
similar interpretation, 'employees of MCD' will not include contract employees. 2006
AIR SCW 844
10. The learned counsel appearing for the respondents submitted that the decision in
Vaghela did not apply to the respondents as they did not claim to be government servants.
He submitted that the respondents claimed age relaxation as employees of MCD which
was specifically provided in the advertisement. We have already noticed that the UPSC
advertisement (No. SPL-03-2004) clearly specified that the age limit of 35 years was
relaxable for employees of Municipal Corporation of Delhi, up to five years. Therefore,
the only question that arises for consideration is whether the word 'employees of MCD'
should be construed as referring only to permanent or regular employees of MCD as
contended by UPSC or to all employees of MCD including contract employees, as
contended by respondents.
11. Even the UPSC recruitment advertisement for the subsequent year (Advertisement
No.SPL-54-2005 dated 23.7.2005 issued during the pendency of these matters) inviting
applications for filling 16 posts of Medical Officers (Ayurved) in the Municipal
Corporation of Delhi (and similar posts in NDMC and Union Territories) provided for
age relaxation as follows :
"AGE : Not exceeding 35 years on normal closing date. Not exceeding 38 years for Other
Backward Classes candidates and not exceeding 40 years for Scheduled Castes and
Scheduled Tribes candidates in respect of vacancies reserved for them. Relaxable for
central government servants as per the instructions issued by Government of India
including NDMC/MCD from time to time up to five years. Age is also relaxable for
employees of NDMC and MCD in respect of the posts in NDMC and MCD respectively
up to five years."
By interim order dated 9.12.2005, this Court permitted the overaged respondents to sit for
the examination in relation to the 2005 advertisement subject to the condition that the
UPSC shall not publish the result until further orders. By subsequent order dated
9.3.2007, the said interim order was vacated and UPSC was permitted to publish the
results and MCD was permitted to proceed with the appointment of candidates selected
by UPSC. We are informed that UPSC has neither declared the results nor MCD
proceeded to make appointments. Be that as it may.
12. Recruitment to posts in MCD is governed by the Delhi Municipal Corporation Act,
1957 ('Act' for short). Section 90 of the Act contemplates appointment of persons to
either permanent posts or temporary posts. Section 90(6) provides that the Standing
Committee may on the recommendations of the Commissioner create for a period not
exceeding six months any category A or category B post. Section 92 provides that the
power to appoint employees whether permanent or temporary shall vest in the
Commissioner. Section 96 provides that no appointment to any category A post shall be
@page-SC2466
made except after consultation with the UPSC, but no such consultation is necessary for
selection for appointment to any acting or temporary post for a period not exceeding one
year. We have referred to these provisions only to show that employment under the
Municipal Corporation of Delhi could be either permanent/regular or short
term/contractual.
13. The term 'employee' is not defined in the Delhi Municipal Corporation Act, 1957. Nor
is it defined in the advertisement of UPSC. The ordinary meaning of 'employee' is any
person employed on salary or wage by an employer. When there is a contract of
employment, the person employed is the employee and the person employing is the
employer. In the absence of any restrictive definition, the word 'employee' would include
both permanent or temporary, regular or short term, contractual or ad hoc. Therefore, all
persons employed by MCD whether permanent or contractual will be 'employees of
MCD'. The respondents who were appointed on contract basis initially for a period of six
months, extended thereafter from time to time for further periods of six months each,
were therefore, employees of MCD, and consequently, entitled to the benefit of age
relaxation. If the intention of MCD and UPSC was to extend the age relaxation only to
permanent employees, the advertisement would have stated that age relaxation would be
extended only to permanent or regular employees of MCD or that the age relaxation
would be extended to employees of MCD other than contract or temporary employees.
The fact that the term 'employees of MCD' is no way restricted, makes it clear that the
intention was to include all employees including contractual employees. Therefore, we
find no reason to interfere with the judgment of the High Court extending the benefit of
age relaxation.
14
. The learned counsel for appellant submitted that the advertisement granted age
relaxation to employees of MCD and employees of Government of India, and that the
words 'permanent' or 'regular' were not used either with reference to 'employees of
Government' or 'employees of MCD'. It is pointed out that in Vaghela (supra), this Court
while dealing with persons employed in identical circumstances, that is 'engaged for a
period of six months from the date of joining or till a candidate selected by UPSC joined
on regular basis', held that the term 'government servant' did not refer to or include
persons employed on contract basis. It is argued that on the same principle, the term
'employees of MCD' cannot include a contract employee of MCD. We cannot agree.
Vaghela (Supra) related to contract employment by a government whereas in this case the
contract employment is by a Municipal Corporation. The reason that weighed with this
Court in Vaghela to hold that a contract employee was not a government servant, was in
view of the special connotation of the term 'government servant'. This Court after
referring to the decision of the Constitution Bench in Roshanlal Tandan vs. Union of
India, 1968 (1) SCR 185, and the decision in Dinesh Chandra Sangma vs. State of Assam,
1977 (4) SCC 441, held that employment under the government is a matter of status and
not a contract even though acquisition of such a status may be preceded by a contract;
and that contract employees of the government were governed by the. terms of contract
and did not possess the status of government servants nor were governed by rules framed
under Article 309 of the Constitution, nor enjoyed the protection under Article 311. But a
Municipal Corporation is not 'government', and municipal employees are not government
servants governed by Articles 309 to 311. Though permanent employees of municipal
corporation or other statutory bodies may be governed by statutory rules, they do not
enjoy the status of government servants. Therefore, the decision in Vaghela, rendered
with reference to government servants may not be of any assistance in interpreting the
term 'employees of MCD'. In fact, for that very reason, these matters were de-linked from
the hearing of Vaghela. 2006 AIR SCW 844
AIR 1967 SC 1889
AIR 1978 SC 17
15. In view of the above, we dismiss these appeals. We also direct UPSC to declare the
withheld results of respondents who had participated in the examination in pursuance of
the interim orders of this Court and grant the benefit of age relaxation as per the direction
of High Court.
Appeals dismissed.
@page-SC2467
AIR 2008 SUPREME COURT 2467 "Harendra Sarkar v. State of Assam"
(From : 2006 (3) Gauh. L.T. 67)
Coram : 2 S. B. SINHA AND H. S. BEDI, JJ.*
Criminal Appeal No. 907 of 2006, with Cri. A. No. 1068 of 2006, D/- 2 -5 -2008.
Harendra Sarkar v. State of Assam
WITH
Kailash Gour and others v. State of Assam.
(A) Penal Code (45 of 1860), S.300 - MURDER - EVIDENCE - APPEAL - LARGER
BENCH - Multiple murders - Committed during communal riots - Norms of appreciation
of evidence whether to be applied differently - Difference of opinion amongst Judges in
appeal against conviction of accused by High Court - Matter referred to larger Bench.
(Paras 41, 42, 43, 44, 46, 58, 66)
(B) Evidence Act (1 of 1872), S.114 - EVIDENCE - Presumption under - Raising of - In
criminal case no presumption should be raised which does not have any origin in any
statute as it cause great prejudice to accused. (Per S.B. Sinha, J.) (Para 43)
(C) Evidence Act (1 of 1872), S.101, S.102, S.103, S.104 - EVIDENCE - DOCTRINES -
RIGHT TO LIFE - Doctrine of "reverse burden" - Applicability.
PER S. B. SINHA, J. :- Wherever Parliament intended to lay a different standard of proof
in relation to certain offences or certain pattern of crimes, it did so. In such a case subject
to establishing some primary fact, the burden of proof has been cast on the respondents.
There are a large number of statutes where the doctrine of 'reverse burden' has been
applied. Save and except those cases where the Parliamentary statutes apply the doctrine
of reverse burden, the courts should not employ the same which per se would not only be
violative of Universal Declaration of Human Rights but also the fundamental rights of an
accused as envisaged under Art. 21 of the Constitution of India. (Para 44)
2007 AIR SCW 6475 : 2008 Cri LJ 372 : 2007 (6) AIR Bom R 859 (Ref.) 39, 59
(2006) UKPC 13 45
2004 AIR SCW 6947 : AIR 2004 SC 1290 : 2004 AIR-Jhar HCR 734 (Ref.) 59
(2004) 10 SCC 141 59
AIR 1979 SC 1848 : 1979 Cri LJ 1374 (Ref.) 44
(1937) 2 All ER 552 : (1937) AC 57644
Sumita Hazarika, U. Hazarika, Satya Mitra, Anand, Azim H. Laskar and Abhijit Sen
Gupta, for Appellants; Ng. J.R. Luwang (for M/s. Corporate Law Group), for
Respondent.
* The Judgments are printed in the order in which they are given in the certified copy -
Ed.
Judgement
1. S. B. SINHA, J. :- Mauza Sangamari Pathar is a small village. It is situated within P.S.
Dobaka in the District of Nagaon in the State of Assam. The residents are principally
agriculturists. Madhabtoli is a neighbouring village. Appellants are the residents thereof.
2. Taheruddin PW-2 was a resident of Changmazi Patghar. The distance between two
villages is about one mile. He had been living in a house consisting of four rooms; each
situated in different corners abutting a big courtyard measuring 20' x 40'.
3. The incident occurred soon after the demolition of Babri Masjid. A communal riot had
taken place. Curfew was imposed.
4. On or about 14th December, 1992 Taheruddin was in his fields. A mob came to his
house. In one of the rooms, his wife and six daughters were sleeping. Another room was
being occupied by his sons. The mob broke open the door. They allegedly came armed.
Nearabout that time, another house belonging to one Nandu was burning. Allegedly, from
two sides, 14-20 people came to the house of Taheruddin.
5. One of his sons, Md. Mustafa PW-3 was in his bed. He was all alone. He allegedly
heard the voice of Gopal calling, 'Munshi', Munshi', to which he replied that he was not at
home. Gopal and several other people opened the bamboo door. Gopal 'poked' him with a
spear which struck at his leg. He took it out and ran outside the house. Two persons
standing outside were allegedly recognized by him. They were allegedly
@page-SC2468
armed with 'dao', 'dagger', 'arrows' etc. He saw his father coming towards the home. He
asked him not to go home. He raised a hue and cry. Inside the house his mother and two
sisters were being backed. He did not recognize any one of the assailants. He returned to
the house sometimes later to find that his mother was lying in a critical condition and two
sisters lying dead.
6. Taheruddin who, allegedly was prevented from coming to his house by his son and had
run away, came there and found a group of people striking the wall of his house with
'dao', 'lathi' etc. One of them, Rahna Gour had shot an arrow at him. It hit his right hand.
He saw the accused from a distance of about 2Â½ nals away (1 nal = about 27-28 feet)
i.e. about 70 ft. in total. He shouted. An army vehicle arrived there. He found his daughter
Bimala in an injured condition. She had died. He also found his other daughter Hajeera
lying dead. Taking Bimala on his shoulder, he stood on the road. After the departure of
the army personnel, he found his wife Sahera Khatoon lying injured in middle of the
paddy field near the house. He carried her home, whereafter she died.
7. Hanif, PW-4, another son of Taheruddin allegedly along with Zakir Hussain was in the
kitchen. He is said to be a labourer and allegedly also sustained injuries. He has not been
examined.
8. Three accused, Kalyash, Hari Singh and Ratan, according to him, entered his room. He
was not assaulted but allegedly Zakir was taken away by them. He allegedly took shelter
under a banana tree and observed the entire incident. According to him when his mother
came out, Gopal, Kalyash, Ghandul, Krishna and Haren Doctor assaulted his mother who
died there. When Hajeera came out from the room, she was assaulted by Badhuram Timu,
Hari Singh and Rahna. Other three sisters escaped but Bimala was assaulted by Gopal,
Ratan and Haren Doctor. They also caused hurt to Zakir.
9. Although, according to PW-2 the army vehicle came and went away, as per the version
of others, both army and police team came to the place of occurrence.
10. Whereas the injured were taken to the District Hospital for treatment by the Police,
the dead bodies were taken in the army vehicle.
11. The injured were examined by the Medical Officer at about 1.00 a.m. and were said to
have suffered the following injuries :-
Zakir Hussain
1) There was vertical cut injury over the lip. Size 2" x Â½".
2) There are six cut injuries over the scalp each about 2" x Â½" in size.
3) Left little finger was severed at the bone of the proximal phalange.
4) There is swelling and tenderness over the right hand.
5) There were two cut injuries over the back, on each side.
There was multiple cut injury and got injury on the right hand with sharp cutting. Wounds
were dangerous in nature.
Md. Mustafa Ahmed :
1. Penetrating injury of the right leg with sharp pointed weapon. Size 1/3" x Â½". The
injury is fresh and margins were irregular.
2. Simple cut injury by sharp pointed object.
12. The injured, Taheruddin and his other sons were taken to Daboka Guest House. They
were also taken to the police station. No statement, however, was made by them.
13. The Investigating Officer, PW-7, B.N. Kalita, however, stated that he had received a
message from one Biresh Dutta in regard to a fire. He made a G.D. Entry and sent a
police team there. It was numbered as G.D.E. 532, dated 14.12.1992. He came to the
place of occurrence. He did not say when he came there. However, according to
Taheruddin, a statement was made by him on the next date. Investigating Officers stated
that he took up the investigation and drew a sketch map. He allegedly held an inquest of
the three dead bodies. Inquest reports, however, are not on record.
14. Post-mortem of the three dead bodies were performed at about 12 o'clock on 15th
December, 1992.
15. On the dead body of Sahera Khatoon, two incised wounds were found, one at the
right side of upper neck and another at the right shoulder.
16. On the dead body of Bimala Khatoon, also two injuries, being incised wounds, were
noticed; one at the left parietal bone of the neck and the other at the left upper neck.
@page-SC2469
17. On the dead body of Hajeera Khatoon also two injuries, being incised wounds, were
found, one on the right upper neck and another at the right parietal region of scalp.
18. According to Dr. Madhusudhan Dev Goswami, PW-1 (who conducted the
postmortem examination), their stomachs were found to be empty. The death in each case
was found to have taken place 48 to 72 hours from the time of post-mortem examination.
It was opined that in all the three cases the injuries might have been caused by the same
weapon.
19. The prosecution is silent as to when the dead bodies were returned to their family.
Taheruddin (PW-2) stated that he had come back to the village with another police
officer. He did not inform him about the incident. He did not name any accused. The dead
bodies were buried.
20. PW-2 made a statement before the Investigating Officer. There is a discrepancy as to
when he made this statement.
21. Learned counsel for the State submits that such a statement was made at 12.10 p.m.
From the First Information Report it appears that the statement of Taheruddin was
received at the police station at about 11.00 p.m. on 15th December, 1992. PW-2
allegedly had made two different statements, one that he made the ejahar (statement) one
day after the incident, but at another place, he stated that he had made the statement three
days after the incident.
22. PW-4 stated that he had lodged the First Information Report.
23. Be that as it may, admittedly, the investigation had started even prior to lodging of the
First Information Report. Postmortem examinations had been conducted, site map had
been drawn before 12.00 p.m. on 15th December, 1999 and as per PW-7, inquest were
held but he did not say where the inquest reports are.
24. PWs.-2 and 3 concededly did not see the entire incident. They did not witness the
actual assault on the deceased.
25. The learned trial Judge, however, relied upon the evidence of these witnesses. They
were treated as eye-witnesses.
26. Attention of the witnesses were drawn to the statements made by them before the
police authorities. It was pointedly asked as to whether they had named the accused as
persons allegedly assaulting the deceased. They had not. Although contradictions in the
statements of the witnesses vis-a-vis their statements under Section 161 of the Code of
Criminal Procedure were noticed, the learned trial Judge did not discuss the same stating
that they were only minor in nature. They were not.
27. Nirmal Dutta, Nandu Dutta and Shyam Sunder Gour were found to be innocent by the
learned trial Judge as even PW-3 and PW-4 did not specifically name them as regards
their participation in the commission of offence on the night of occurrence. They were
acquitted.
28. The High Court disbelieved PW-2 in view of the glaring contradictions noticed in his
statements made before the police visa-vis the statement made in his deposition before
the Court. According to the High Court the omission on his part to name Gopal who took
leading part and Rahna who had allegedly shot an arrow, rendered his evidence highly
suspicious. The High Court noticed that PW-3, Mustafa Ahmed, accepted that he had
discussions with the witnesses about the names of probable assailants. The High Court,
therefore, disbelieved the first informant. It, however, did not consider the entire
prosecution case from the angle that thereby, to a large extent, the culpability of the
accused and their participation in the incident became doubtful.
29. The High Court noticed serious contradictions made by PW-3 that he had not told
about burning of any lamp or Gopal calling his father by name. Whereas, before the
police in his statement under Section 161 of the Code of Criminal Procedure he had
stated that he was in his bed, in his deposition in the Court he stated that he was, reading
in the room with the help of the lamp. He also did not inform the Investigating Officer
that after opening the door Gopal, Hari Singh and Kailash stood in front of the door and
Gopal started poking him with a spear.
30. PW-4, according to the prosecution, is a star witness. The contradictions found in his
statement before the Court compared to the statements made to the police under Section
161 of the Code of Criminal Procedure had been taken note of by the High Court. He was
found to have contradicted himself so far as taking the name of Ratan is concerned. He
had also not disclosed that Kalyash and Ratan dragged him out and
@page-SC2470
inflicted injuries on him, or he had been able to recognize the accused by moonlight. The
High Court opined that benefit of doubt should be given to Ratan Das, Gundulu Gour and
Budhu Timang. The High Court held that as PWs-3 and 4 were inside the room, they had
the opportunity to see the actual occurrence, whereas according to the said witnesses
themselves, they had gone out of the house. The High Court, therefore, committed a
serious error in opining so.
31. If the banana trees where PW-4 could hide himself were within the precincts of
house, it is doubtful whether he could see the occurrence after his mother and two sisters
came out of the house and in fact who had assaulted the deceased.
32. Two of the dead bodies were found on the road, and one in the field. Out of the
twelve accused, named in the First Information Report, six have been acquitted.
Involvement of the leader of the mob, namely, Gopal (since deceased) has seriously been
doubted. Only five persons have been convicted, who are appellants before us.
33. The G.D. Entry, on the basis whereof, the Investigating Officer and other police
officials came to the place of occurrence has not been filed. Contents thereof, thus, have
not been disclosed. Biresh Dutta, who had informed the police, has also not been
examined. G.D. Entry, admittedly, as disclosed by the Inspecting Officer, PW.-7, did not
contain the names of the accused. Zakir, another injured witness, whose relationship with
Taheruddin has been stated differently by PWs.-2 and 3 has also not been examined.
34. PW-3, admittedly was taken to the police station. PW-4 had also been taken to the
police station. PWs, as noticed hereinbefore along with the injured were given shelter in
the 'dak bungalow' at Dabaka. Even then no attempt was made to record their statements.
35. It is difficult to appreciate that because of the law and order situation the investigating
authorities could not take such statements. Surprisingly, the investigation had already
started. All essential actions, namely - making of inquest, getting the post-mortem of the
dead bodies conducted, obtaining injury reports of the injured persons, preparation of the
site map etc. had been undertaken.
36. PW-1 states that he came back with another police officer, but even to him he did not
make any disclosure.
37. PW-5 is the scribe of the First Information Report. His house is almost 2 kms. away
from that of Taheruddin. When he went to Taheruddin's house, about 100-200 people had
gathered there. Taheruddin discussed first "on the things to be mentioned in the "ejahar"
and, thereafter only he wrote the same.
38. The abovementioned delay in lodging the First Information Report has not been
explained. Lodging of prompt F.I.R. is necessary for providing checks and balances. In a
case of this nature, where enmity arising out of land dispute is admitted, in absence of
any explanation, delay in lodging the F.I.R. should be viewed with suspicion.
39
. First Information Report was lodged after the deliberations. Land dispute between the
parties is admitted. Inquest was held even before the recording of F.I.R. Ordinarily, the
same is impermissible. [See Ramesh Baburao Devaskar and Ors. v. State of Maharashtra,
2007 (12) SCALE 272]. 2007 AIR SCW 6475
40. Genesis of the occurrence has not been proved. It is likely that burning of the house
of Nandu started first wherefor only information about the burning was given by Ritish
Dutta to the Police. The incident in question might have taken place later. Nandu has been
acquitted of the charges.
41. From the discussions made hereinbefore, and particularly in view of the conduct of
the prosecution witnesses, in our opinion, it is difficult to rely upon the statements of the
prosecution witnesses. Medical evidence also does not support the prosecution case.
Deaths, according to the doctor occurred 48 to 72 hours prior to the examination of the
dead bodies. But, if the prosecution case is to be believed, the same took place within
twelve hours from the death thereto.
42. On having a broad conspectus of events, I am of the opinion it is difficult to place
implicit reliance on the prosecution case.
43. We are not oblivious of the fact that several Commissions and Committees set up to
inquire into the effect of communal riots in different parts of the country severely
criticized the role of the investigating officer. Tardy and partial investigation has been
@page-SC2471
held to be not uncommon.
In this case, no such question was raised. At no stage any such complaint was made that
the investigation carried by the investigating authorities was not proper or fair. Ordinarily,
the court shall not raise such a presumption unless appropriate materials are brought on
record. The court may or may not raise a presumption that an official act having been
done was not in due course of its business, but in a criminal case, no presumption should
be raised which does not have any origin in any statute but would cause great prejudice to
an accused.
The courts, in order to do justice between the parties, must examine the materials brought
on record in each case on its own merits. Marshalling and appreciation of evidence must
be done strictly in accordance with law; wherefor the provisions of the Code of Criminal
Procedure and Evidence Act must be followed. It, in my opinion, would not be proper to
contend that only because an offence is said to have been committed during a communal
riot, the provisions of the Code of Criminal Procedure and Evidence Act would not be
applied differently vis-a-vis a so-called ordinary case. They are meant to be applied in all
situations. Appreciation of evidence must be on the basis of materials on record and not
on the basis of some reports which have nothing to do with the occurrence in question.
Only because in some parts of the country police investigations attracted severe criticism,
the same in no manner should be applied in all the cases across the country. Each accused
person; even a terrorist, has his human right. He be tried in accordance with law.
44. Article 12 of the Universal Declaration of Human Rights provides for the Right to a
Fair Trail. Such rights are enshrined in our Constitutional Scheme being Article 21 of the
Constitution of India. If an accused has a right of fair trial, his case must also be
examined keeping in view the ordinary law of the land.
It is one thing to say that even applying the well-known principles of law, they are guilty
of commission of offences for which they are charged but it is another thing to say that
although they cannot be held guilty on the basis of the materials on record, they must
suffer punishment in view of the past experience.
Even then chances of the false implication cannot be ruled out altogether and particularly
in a case like the present one when those who have been named in First Information
Report and said to have taken a leading role in the matter have been acquitted, the
correctness whereof is not in any question. We do not know how a different standard can
be applied in case of others. I am, therefore, unable to subscribe to the view that in a case
of this nature, the norms of appreciation of evidence should be applied differently.
It is not a case where an unfair trial like Zahira Habibulla H. Sheikh vs. State of Gujarat
(2004) 4 SCC 158, had taken place which was apparent on the face of the record. The
question of adopting and applying different norms in a case of this nature, therefore,
would not arise. Even in Zahira Habibulla H. Sheikh (supra) the case was transferred to
another State, evidences were taken afresh. Such a case has not been made out here.
Zahira Habibulla H. Sheikh (supra) must be held to have been decided in a different fact-
situation. [See Satyajit Banerjee and others v. State of W.B. and others, 2005 (1) SCC
115]. 2004 AIR SCW 2325
2004 AIR SCW 6646
It must be borne in mind that wherever Parliament intended to lay a different standard of
proof in relation to certain offences or certain pattern of crimes, it did so. In such a case
subject to establishing some primary fact, the burden of proof has been cast on the
respondents. There are a large number of statutes where the doctrine of 'reverse burden'
has been applied. Save and except those cases where the Parliamentary statutes apply the
doctrine of reverse burden, the courts, in my opinion, should not employ the same which
per se would not only be violative of Universal Declaration of Human Rights but also the
fundamental right of an accused as envisaged under Article 21 of the Constitution of
India.
In Syed Akbar vs. State of Karnataka, AIR 1979 SC 1848, this Court held :-
"28. In our opinion, for reasons that follow, the first line of approach which tends to give
the maxim a larger effect than that of a merely permissive inference, by laying down that
the application of the maxim shifts or casts, even in the first instance, the burden on the
defendant who in order to exculpate himself must rebut the presumption of negligence
against him, cannot, as such, be invoked in the trial of criminal
@page-SC2472
cases where the accused stands charged for causing injury or death by negligent or rash
act. The primary reasons for non-application of this abstract doctrine of res ipsa loquitur
to criminal trials are : Firstly, in a criminal trial, the burden of proving everything
essential to the establishment of the charge against the accused always rests on the
prosecution, as every man is presumed to be innocent until the contrary is proved, and
criminality is never to be presumed subject to statutory exception. No such statutory
exception has been made by requiring the drawing of a mandatory presumption of
negligence against the accused where the accident "tells its own story" of negligence of
somebody. Secondly, there is a marked difference as to the effect of evidence viz. the
proof, in civil and criminal proceedings. In civil proceedings, a mere preponderance of
probability is sufficient, and the defendant is not necessarily entitled to the benefit of
every reasonable doubt; but in criminal proceedings, the persuasion of guilt must amount
to such a moral certainty as convinces the mind of the Court, as a reasonable man beyond
all reasonable doubt. Where negligence is an essential ingredient of the offence, the
negligence to be established by the prosecution must be culpable or gross and not the
negligence merely based upon an error of judgment. As pointed out by Lord Atkin in
Andrews v. Director of Public Prosecutions, "simple lack of care such as will constitute
civil liability, is not enough"; for liability under the criminal law "a very high degree of
negligence is required to be proved. Probably, of all the epithets that can be applied
'reckless' most nearly covers the case". "
The said principles were applied in Jacob Mathew vs. State of Punjab, (2005) 6 SCC 1.
2005 AIR SCW 3685
Presumption of innocence is a human right. Such a legal principle cannot be thrown aside
under any situation. [See Narendra Singh and another v. State of M.P., (2004) 10 SCC
699 and Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra and another, (2005) 5
SCC 294] 2004 AIR SCW 3094
2005 AIR SCW 2215
45. Independence of judiciary must be upheld. The superior courts should not do
something that would lead to impairment of basic fundamental and human rights of an
accused. It is of some interest to note the recent decision of the Privy Council in The
State vs. Abdool Rachid Khoyratty, [2006] UKPC 13, wherein the statute limiting the
jurisdiction of the Court to grant bail by the Mauritius Government was held to be illegal
as infringing the doctrine of separation of power which ensures the independence of
judiciary.
46. Appellants are, thus entitled to benefit of doubt.
47. These appeals are allowed. If the appellants are in jail, they are directed to be released
forthwith, unless wanted in connection with any other case.
48. HARJIT SINGH BEDI, J. :- I have perused the judgment rendered by my learned
Brother Sinha, J. I regret I am unable to accept the conclusions reached. I am accordingly
giving my own opinion in the matter.
49. These appeals by way of special leave raise an interesting question as to how
evidence in cases involving multiple murders during and arising out of communal riots
has to be assessed. They arise out of the following facts :
At about 10.00 p.m. on December 14, 1992, Mohd. Taheruddin PW-2, was guarding his
paddy crop in his field close to his house in Village Changmazi Pathar, Police Station
Daboka, District Nagaon in the State of Assam. His sons, PW-3 Mohd. Mustafa Ahmed
and PW-4 Mohd. Hanif Ahmed and one Jakir Ahmed a young boy statedly a close
relative, were sleeping in one of the rooms in the house whereas his wife Sahera Khatoon
and six daughters including Hazera Khatoon, Jahanara Begum and Bimla Khatoon were
sleeping in another room. As it was a moonlit night, Mohd. Taheruddin saw a group of 10
to 12 persons coming from the north and another group from the south approaching his
home stead. The intruders entered through the front door of the house and the accused
Gopal called out for Taheruddin. Taheruddin moved forward and heard a commotion side
and enquired from Mohd. Mustafa Ahmed as to what had happened on which he shouted
to his father not to come close as people were being killed. Mustafa Ahmad also ran away
whereas Taheruddin hid himself in the paddy fields and saw the attack on his house. He
also had a narrow escape as an arrow shot at him by accused Rahna Gore missed his body
but hit him on his right hand. The accused persons then ran away
@page-SC2473
from the spot. Taheruddin then came out from his hiding place crying out aloud on which
an army vehicle was attracted. He also found that two of his daughters had been killed
and his wife Sahera Khatoon seriously injured. She was carried into the house but expired
soon thereafter. On enquiry, it was revealed that Mohd. Mustafa and Jakir Ahmad had
also been seriously hurt. An army vehicle again returned to the place of incident and the
injured were sent to the Nagaon Civil Hospital and the dead bodies to police station
Daboka. The First Information Report was recorded in the police station at about 11.00
P.M. on December 15, 1992 - the police station being about eight kilometers away from
the place of incident. In the first information report Taheruddin named 13 persons in all,
they being Gopal Ghose, Harendra Sarkar, Raton, Krishna, Shyam Gour, Niramal Dutta,
Kailash Gour, Nahdu Gour, Dhirendra Gour, Budh Ram Bonghand, Barika Timung, Hori
Singh Gour and Gundulu Gour.
50. The dead bodies were also subjected to post mortem on December 15, 1992 and it
transpired that Sahera Khatoon, wife of Taheruddin aged about 35 years had three incised
wounds on her person and the daughters Bimala Khatoon and Hazra Khatoon aged 3 and
7 years respectively had two incised wounds each. Jakir Hussain was also medically
examined by Dr. Jiauddin Ahmed PW 6 at about 1.20 A.M. on December 16, 1992 and
five injuries, all of them grievious in nature, were found on his person. Hanif Ahmed, PW
4 too was medically examined on the same day and two injuries, one grievous were found
on his person. On the completion of the investigation, the accused were charged for
offences punishable under Sections 147/148/149/448/ 302 and 326 of the IPC and as they
pleaded not guilty they were brought to trial.
51. The prosecution in support of its case placed primary reliance on the evidence of PW
2 Mohd. Taheruddin and his sons PW3 Mohd. Mustafa (injured) and PW4 Mohd. Hanif
in addition to the medical evidence of PW1 Dr. Madhusudan Dev Goswami who had
conducted the post-mortem examination on the dead bodies on the December 15, 1992
and PW 6 Dr. Jiauddin Ahmad, who had medically examined Jakir Hussain and Mohd.
Mustafa PWs and the Investigating Officer B.L. Kalta, PW 7. The prosecution case was
then put to the accused and they denied their involvement and pleaded false implication
due to enmity.
52. The trial Court in its judgment dated June 18, 2005 relying on the evidence of PW 3
and PW 4, Mustafa Ahmad and Hanif Ahmad respectively, in particular, as corroborated
by the medical evidence, held accused Kailash, Hari Singh, Gundul Ratan Das, Krishna
Das, Harendra Sarkar, Rahna Gour and Budhu Gour guilty and convicted them under
several sections with which they had been charged, viz., under Sections 302/ 34, 448/34
of the I.P.C and sentenced them to imprisonment for life and fine of Rs.2000/-and in
default of payment of fine, to rigorous imprisonment for six months. An appeal was
thereafter taken by the accused to the High Court. The High Court observed as under :
17. P.W 7, the Investigating Officer, proved the contradictions with regard to PW 4 to the
effect that he did not tell him that Kailash and Ratan dragged him out and inflicted
injuries on him or that he has been able to recognize the accused persons by moon light.
These contradictions proved by P.W. 7 in respect of PWs 3 and 4 have been cross-
checked by us with the statement recorded under Section 161 Cr.P.C. PW 4 has named
Ratan before the Court who had allegedly entered his room and took out Jakir. But Ratan
has not been named before the Investigating Officer. Therefore, from this witness, we
find evidence against accused Kailash, Ghandul, Krishna, Haren, Badhuram, Tinu, Hari
Singh and Rahna. There is nothing said about Ratan by PW's 2 and 3. Therefore, there is
doubt about his presence as claimed by the PW 4. So far Ghandul and Badhuram are
concerned, we find that it is only PW 4 who had stated about their presence and
participation in the alleged crime. He is not supported by PWs 2 and 3 in this regard. In
our considered opinion, there is doubt about the presence of Ratan, Ghandul and
Baduram at the time of occurrence. In so far Krishna Gore, Kailash Gore, Hari Singh,
Haren Sarkar and Rahna are concerned, we find that PWs 3 and 4 have indicted them as
their assailants. PWs 3 and 4 were inside the house and had the opportunity to see the
actual occurrence. In the process, they could recognize Kailash Gore, Krishna, Hari
Singh, Haren Sarkar and Rahna. PW 3 was reading inside the room and he could
recognize them in the light of a lamp. After opening
@page-SC2474
the door, he also saw Gopal (since deceased), Hari Singh, Krishna, Haren and Rahna.
Therefore, his evidence against Gopal (dead) Kailash, Krishna and Haren is also reliable.
He had identified them in the moon light from a close proximity. The other accused
Ghandul, named by P.W 4 is entitled to benefit of doubt since he has not been named by
PWs 2 and 3.
And having held as above finally included;
From this discussion, it appears that the prosecution has succeeded in establishing the
charge against Kailash Gour, Krishna Gour, Harendra Sarkar, Hari Singh Gour and Rahna
Gour. The other three appellants, namely Ratan Das, Gundulu Gour and Budhu Timang
are entitled to acquittal on benefit of doubt"
53. It is in this circumstance, that the appeal at the instance of the convicted accused is
before this Court by way of special leave.
54. Before embarking on an appreciation of the evidence which would determine the fate
of the appeal, there are several factors peculiar to the present case which brings it out of
the category of a usual set of murders and which need to be highlighted. As per the
evidence on record, the incident had taken place on the 14th of December 1992 in the
disturbances that followed in the aftermath of the destruction of the Babri Masjid in
Ayodhya. As is well known, the fall out of the destruction of the Masjid was felt all over
India and caused great consternation amongst the Muslim community. Widespread riots
broke out throughout the country and the present multiple murders are also a
consequence of the happenings in Ayodhya. The genesis of a communal riot, its
development as it goes along and the consequences have been identified/underlined by
dozens of commissions of inquiry both judicial and administrative for more than four
decades now and there appears to be near unanimity that a deliberate attempt is made by
the police and the investigating agencies to forestall fair investigation in attacks on the
minority communities and on the contrary to connive with the perpetrators. It is indeed
tragic that though reams of paper have been used and dozens of suggestions made as to
the methods to prevent or to control communal riots, yet the cancer continues to
metastasize on account of several factors, one of the predominant being the feeling
amongst the assailants, emboldened yet further by the anonymity which a crowd
provides, that come what may, no harm will come to them. Several reports have been
perused and herein below are a few of the observations made which clearly highlight the
anti-minority bias in the police :
"This commission of inquiry has cited more than half a dozen instances where Muslim
religious places adjoining police lines or police stations were attacked or damaged. The
argument advanced by the police officers that because they were busy quelling riots at
various other places, these police stations were shorn of adequate strength and hence
these attacks on religious places could not be punished, did not impress the Commission.
It has made this observation because not a single case of damage to a Hindu place of
worship near a police station was reported to the Commission.
- Report of the Justice Jagmohan Reddy Commission on the Ahmedabad riots of 1969.
The working of the Special Investigation Squad is a study in communal discrimination.
The officers of the squad systematically set about implicating as many Muslims and
exculpating a many Hindus as possible irrespective of whether they were innocent or
guilty. Cases of many Hindus belonging to the Shiv Sena, Rashtriya Utsav Mandal (an
extension of the local branch of the Jana Sangh) were wrongly classified as 'A' category
and investigations closed and no proper investigation was undertaken into several
complaints of murders of Muslims and arson of their property. No investigation was
conducted into the composition and activities of Hindu communal and allegedly
communal organizations. Deputy superintendent of police S.P. Saraf held private
conferences and discussions with several leaders of Hindu organizations including many
who were implicated by Muslims in offences of arson and murder.
- Report of the Justice D. P. Madon Commission on the Bhiwandi, Jalgaon and Madad of
1970.
The evidence of the deputy SP says that while on patrol duty he had to curb many among
his rank and file who could not restrain themselves when they met Muslims on the road.
Similar evidence was given by the sub-collector and other witnesses who have testified
saying that while chasing away
@page-SC2475
some Muslims many policemen yelled at them to go to Pakistan. At Mattambaram one or
two of them got into the mosque and besides beating Usmankutty Haji, a very respectable
person, broke the tube-light and chandeliers in the mosque. There is nothing to show that
there was any justification for this action......So far as the minorities are concerned, it is
the feeling among them that they are not getting justice, that they are discriminated
against in the matter of appointments in the Public Services, that they do not get equal
protection of the law and that their religion is in danger, that prompts them to rally around
religious organizations of their own. It is of the greatest importance that appropriate steps
are taken by the government to remove the cause for such feelings in the minorities.
There is much truth in saying that if you want peace you must work justice.
- Report of the Justice Josepth Vithyathil Commission on the Tellicherry riots, 1971.
The riots occurred broadly on account of the total passivity, callousness and indifference
of the police in the matter of controlling the situation and protecting the people of the
Sikh community..Several instances have come to be narrated where police personnel
were found marching behind or mingled in the crowd. Since they did not make any
attempt to stop the mob from indulging in criminal acts an inference has been drawn that
they were part of the mob and had the common intention and purpose.....The Commission
was shocked to find that there were incidents where the police wanted clear and definite
allegations against the anti-social elements in different localities to be dropped out while
recording FIRs.
- Report of the J.Ranganath Misra Commission on the 1984 anti-Sikh riots in Delhi.
"1.11 The response of police to appeals from desperate victims, particularly Muslims,
was cynical and utterly indifferent. On occasions, the response was that they were unable
to leave the appointed post; on others, the attitude was that one Muslim killed, was one
Muslim less.
1.12 The alertness of police pickets left much to be desired. Several arson incidents,
stabbing and violence occurred within the eye-sight and earshot of the police pickets
without any action by them. In one case, a bakery situated within the very compound in
which the police station (Jogeswari) is located was attacked, looted and burnt in broad
daylight without the police lifting a finger.
1.13 Police officers and men, particularly at the junior level, appeared to have an inbuilt
bias against the Muslims which was evident in their treatment of the suspected Muslims
and Muslim victims of riots. The treatment given was harsh and brutal and. on occasions,
bordering on inhuman, hardly doing credit to the police. The bias of policemen was seen
in the active connivance of police constables with the rioting Hindu mobs on occasions,
with their adopting the role of passive on lookers on occasions, and finally, in their lack
of enthusiasm in registering offences against Hindus even when the accused were clearly
identified and post haste classifying the cases in "A" summary.
1.14 Even the registered riot-related offences were most unsatisfactorily investigated. The
investigations showed lack of enthusiasm, lackadaisical approach and utter cynicism.
Despite clear clues the miscreants were not pursued, arrested and interrogated,
particularly when the suspected accused happened to be Hindus with connections to Shiv
Sena or were Shiv Sainiks. This general apathy appears to be the outcome of the built-in
prejudice in the mind of an average policeman that every Muslim is prone to crime."
Chapter 1 Preliminary. Srikrishna Report On Mumbai riots of 1992-1993
The report of the National Human Rights Commission pertaining to its visit from 19th to
22nd March 2002 to Gujarat after the Vadodra and Godhra riots has made some startling
observations :
"The Vishwa Hindu Parishad (VHP) gave a call for "Bandh" on the 28th Feb. pursuant to
the Godhra incident of burning alive of Karsewaks which was supported by the State BJP.
The police did not take effective steps to make proper security arrangements in several
areas known for their communal sensitivity. Many felt that the police should have learnt
from the past experience that Bandhs supported by the ruling party are never peaceful and
should have therefore made full preparations. Whereas the VHP leaders could mobilize
their supports for the 'Bandh', the police did not take any effective measures to control the
unlawful crowds, while they were building up. The
@page-SC2476
police, by and large, chose to act as silent spectators allowing the crowds to swell in size
and become uncontrollable.
While in the previous riots also political elements did play a major part and the police and
administration failed to control violence, they were not accused of direct involvement in
the carnage. The failure of police and administration in the current riots is attributed not
to their professional incompetence but to their attitude of apathy and callousness in
general and the accusation of connivance and complicity was made in some cases.
-------------------------------------------------------------------------------
The team heard several allegations of connivance of police in incidents of arson and
looting by the marauding crowds. It was alleged that the crowds involved in the
destruction of slums opposite Ambika Mill No. 1 near Khokra over bridge, Gomtipur,
Ahmedabad had the support of the administration (275 hutments housing approximately
1800 persons with 90% Muslims and the other Dalits were totally destroyed). These
hutments have been in existence for over 30 years and the Gujarat High Court had
ordered status quo in 1999 when the authorities sought to demolish them. It is alleged that
one PSI Modi from Gomtipur police station had come to the site in police jeet (GJ1-AR-
5432). He parked his jeep near the gate of Ambika Mill, spoke to the mob in the presence
of Shri Mohan Bundela, Shri Israil Bhai Ansari and some other activists of Jan Sangarsh
Manch. The mob took out 4 to 5 bottles of diesel from the jeep of Shri Modi, which were
subsequently used in torching the hutments. Another specific allegation of connivance of
police was narrated by some victims at the Shah-e-Alam camp. They charged a senior
police Inspector K.K.Mysorewala with misdirecting some helpless Muslims including
some young girls into the arms of a murderous mob. (These cases were brought to the
notice of the Chief Secretary by the Chairperson for immediate action).
Many representatives of the NGOs/activists accused the police of outright discriminatory
approach in the matter of arrest. It was alleged by many that though it was the minority
community which was under attack at all the places after the Godhara incident, the bulk
of the arrests made by the police were from minority community. Since the official
presentation made before the team did not give community-wise breakup of arrests which
is an important parameter of police action in the handling of communal riots, the
allegations made by police holding responsible position and enjoying high reputation for
their integrity cannot be rejected outright.
It was alleged by many that the police allowed the crowds to swell and turn violent by
ignoring the calls for help from the victims of mob attack. Admitting that the police
presence on such spots was very thin, it was asserted that their sense of duty demanded
that they should have used firepower to rescue the persons under attack from mob fury. It
was said by many that the police either did not use the weapons or merely fired a couple
of rounds in the air without producing any deterrence."
55. This report also indicates a deliberate attempt on the part of the police force in
subverting the Rule of Law not only in taking preventive measures, or during
investigation but at the time of prosecution as well.
56. The matter does not end with the reports of the judicial commissions alone but has
been a matter of deep concern for the administration as well. The First National Police
Commission headed by Shri Dharam Vira ICS (Retd.) was set up during the Janata Party
Government of Shri Morarji Desai and amongst its distinguished members were several
doyen's of the police force with the most intimate and incisive knowledge of police
functioning - Justice N.K. Reddy a retired Judge of the Madras High Court, Shri K.F.
Rustamji, former Director General of the Border Security Force, Shri N.S. Saxena,
former Director of the Central Reserve Police Force, Shri M.S. Gore of the Tata Institute
of Social Sciences and Shri. C.V. Narasimhan, a former Director of the Central Bureau of
Investigation as its Member -Secretary. The Commission submitted its report in six
volumes between 1979 and 1981 and made far reaching recommendations based on the
experience that had been gained over the years with regard to the anatomy of a communal
riot. Volume VI, Chapter XLVII, Page 9 dealing with 'Communal Riots' of the report
reads thus :
"The investigation of crimes recorded is a matter which calls for professional skill and
expertise of a different variety. Investigations of crimes cannot be undertaken in moments
of tension and confusion. The National Integration Council has observed that special
@page-SC2477
investigation squads should be set up to investigate crimes committed in the course of
serious riots. We endorse this observation and recommend that such squads should be set
up under the State Investigating agency [State CID (Crime)] to investigate all crimes
committed in the course of a riot.
The Madon Commission which inquired into the communal riots in Bhiwandi. Jalgaon
and Mahad in the State of Maharashtra in 1969 passed severe strictures against the
special investigation squads set up to investigate crime committed in the course of those
riots. The Commission observed that these special investigation squads had acted in a
partial and biased manner against one community. We take note of this finding and feel
that there are many instances where the special investigation squads were not set up
properly with the result that some of them acted in an incompetent and biased manner.
We would, therefore, recommend that the special investigation squads for investigating
into crimes reported in the course of a riot, should consist of officers of high ability who
could be expected to act without fear or favour, and without bias or prejudice. These
squads should function under the supervision of a fairly senior officer.
We are also aware that once a riot gets under control several forces come into prominence
and these forces try to interfere in the registration and investigation of crimes. There is an
alarming tendency on the part of several local big wigs to prevent the initiation of action
against well-known goondas and anti-social elements. We are aware that the police also is
not entirely free from blame in this regard. It should be realized that non-initiation of
action against those who commit serious crimes in the course of a riot is a matter which
would destroy the morale and trust of the local population. If the big criminals are left out
and only a few small ones are prosecuted the people will lose faith in the investigation
processes and in the rule of law. The administration, the police and the politicians should
remember that the people are generally aware of the real culprits, and if the official
agencies shield these culprits the people would not only look up these agencies as
connivers of crime, but as criminals themselves. We strongly recommend that the
investigation of reported crimes in serious riot situations should be done thoroughly,
competently, quickly and impartially by special teams of competent officers working
under the supervision of senior officers. Any interference in this process by any group,
however, powerful it may be and whatever may be the reasons should be strongly
condemned.
We made a study of the prosecution and disposal of cases registered in the course of
serious communal riots in one State. The disposal of the cases examined in this study is
as shown below :-
Place A
(1970) Place B
(1970) Place C
(1967)
1. Number of cases reported 11 162 38

2. Number of cases charge-sheeted in the Court of law 6 35 15
3. No. of cases withdrawn with reasons ..... ..... .....
4. No. of cases convicted 3 8 5
5. No. of cases convicted 3 23 10
6. No. of cases discharged ..... 4 .....
7. 'A' Final (True but not detected) 5 125 23
8. 'B' Final (False case) ..... ..... .....
9. 'C' Final (Mistake of facts) ..... 2 .....
10. 'NC' Final (Non-cognizable case) ..... ..... .....
@page-SC2478
It will be noticed that a large number of cases ended in final reports. An analysis of the
convicted cases showed that these were all simple cases in which the accused were
actually caught red handed on the scene of the riot. In the majority of the complaints
lodged by the individuals with the police and in which the police carried out
investigations, the police were not successful in apprehending the offenders and putting
them up before courts of law. It was also noticed that the courts took up to 18 months for
disposal of these cases."
57. The table is perhaps illustrative of the malaise that afflicts the police force in many
States, as the various reports quoted above which pertain to different States, would
reveal. More alarmingly, if things were bad in 1986, what would be the situation as of
today?
58. India is a signatory to the Universal Declaration of Human Rights. Article 2 thereof
provides for rights without discrimination, without restriction of any kind based on race,
language or religion etc., Article 7 provides for equality before law and to the equal
protection of the law for all, Article 8 postulates the availability of an effective remedy in
law for acts violating the fundamental rights guaranteed to an individual and Article 12
provides for the right to a fair trial. These rights are enshrined in Articles 14 and 21 of the
Constitution of India as well. Can it be said in all honesty that the investigation and
prosecution in matters relating to communal riots which is really based on protecting
human dignity and the right to life, accord with the above principles? The question posed
must, of necessity, give cause for introspection. Such being the background, can we
evaluate a murder committed during a communal riot as a crime committed in the normal
course - a common place crime as ordinarily understood? The answer must be in the
negative and for the reasons already quoted above. It is in this background that the
arguments raised have to be examined.
59
. The learned counsel for the appellants has first and foremost argued that there was a
delay of 15 hours in the recording of the FIR and as no explanation was forthcoming, this
delay was fatal to the prosecution story. This submission has been supplemented by Mr.
Abhijeet Sen Gupta, the learned counsel for the appellants in Criminal Appeal No.
1068/2006 by highlighting that as the FIR appeared to have been recorded after the post-
mortem and the inquest reports had been prepared, its sanctity and spontaneity had been
compromised. In this connection the learned counsel have placed reliance on State of
Punjab vs. Ramdev Singh (2004) 1 SCC 421, State of Punjab vs. Daljit Singh and Anr.
(2004) 10 SCC 141 and Ramesh Baburao Devaskar and Anr. Vs. State of Maharashtra
(2007) 12 SCALE 272. It has also been pointed out that as Md. Jakir, one of those who
had been hurt had not been examined as a witness the entire story was shrouded in
suspicion, and due to the fact that there appeared to be some animosity between the
parties based on a land dispute as had been admitted by PW1 himself, the possibility of
false implication was clearly writ large. It has finally been pleaded that as no weapon had
been recovered from the accused and the fact that the prosecution witnesses had sought to
improve on their statements given to the police in their evidence in Court by attributing
individual roles to the accused, required that their evidence could not be accepted at its
face value. 2004 AIR SCW 6947
2007 AIR SCW 6457
60. The learned counsel for the respondent - State has, however, argued that the
prosecution evidence had to be examined in the background of the situation that existed
in those days with the entire area being curfew bound, consequent upon the total failure
of the civil administration with the result that the Army had been called out. It has also
been submitted that there was no reason whatsoever to disbelieve that the eye witnesses,
two of them grievously hurt, whose presence could not be doubted and though Md. Jakir
had not been examined as an eye witness, yet the fact that he too had suffered a grievous
injury in the same incident could hardly be controverted. It has further been pointed out
that though Md. Taheruddin, the first informant had been disbelieved by the High Court,
there was absolutely no reason for doing so as his presence in his home during a
communal riot for the purpose of guarding his family of a young wife, six daughters and
two sons and his property was but natural. It has finally been pleaded that even assuming
that some improvements had been made during the course of their evidence, this was to
be expected as the witnesses had been under great stress at the time when their statements
@page-SC2479
had been recorded under Section 161 of the Cr.P.C. and by reflection and hindsight they
had been able to gather their wits and to give proper statements in Court. It has finally
been pointed out that the benefit of doubt had already been given to the accused
inasmuch as several had been acquitted, some by the trial court and some others by the
High Court.
61. It would be seen that the arguments raised by the learned counsel for the appellants
are on the premise that the incident had happened in a normal civil society where the
access to the police is presumed to be easy and where the investigation suffers from no
bias. These arguments, from their very nature, cannot be applied to a case where there is a
complete break down of the civil administration, the police has lost control of the
situation, a curfew imposed and the Army called out and the real possibility (if precedents
are to be applied) that the investigation could be directed against the complainant who
belonged to a minority community. From the reports that have been quoted above, several
broad principles are discernible :
(1) that police officers deliberately make no attempt to prevent the collection of crowds;
(2) that half hearted attempts are made to protect the life and property of the minority
community;
(3) that in rounding up those people participating in the riots, the victims rather than the
assailants are largely picked up;
(4) that there is an attempt not to register cases against the assailants and in some cases
where cases are registered loopholes are provided with the intention of providing a means
of acquittal to the accused;
(5) that the investigation is unsatisfactory and tardy and no attempt is made to follow up
the complaints made against the assailants; and finally
(6) that the evidence produced in Court is often deliberately distorted so as to ensure an
acquittal.
62. In this background and situation some of the arguments raised by the learned counsel
for the appellants can have absolutely no relevance, and the court must, of necessity, lean
even more heavily on the statements of the eye witnesses.
63. It has come in the evidence that the incident had happened at about 10.00 p.m. on
14th December, 1992 in the residential house of Mohd. Taheruddin PW2 - the victims his
wife and two young daughters who were killed, and one son seriously hurt. It has also
come in the evidence of the three main witnesses, that Army personnel had reached the
place of incident and had carried the dead bodies to police station Daboka whereas the
injured had been taken to the hospital. From the evidence of PW7 B.N. Kalita who was
the In-charge of Police Station, Daboka, it is evident that a communal riot had erupted on
account of the destruction of the Babri Masjid on December 6, 1992 and that curfew had
been clamped in the entire area of Hojai, Daboka and Jamunamukh after December 6,
1992. In this background, it cannot be said that the FIR lodged 15 hours after the incident
was belated. It is also significant that this police officer had received information about
the incident on December 14, 1992 at about 10 minutes past mid night and on which he
had reached the place of incident and had made some enquiries and also recorded
Taheruddin's statement but if he had chosen to record the formal FIR at 11 a.m. on
December 15, 1992, it cannot be said that the complainant was in any way guilty of
delay. The statements of the eye witnesses also reveal that the dead bodies and the injured
had been removed from the place of incident by Army personnel. It, therefore, appears
that the inquest had not been recorded at the site but it was perhaps elsewhere. It is also
clear from the evidence of Dr. Jiauddin Ahmed PW6 that he had medically examined
Jakir Hussain and Mustafa Mohd. shortly after mid night on 14th December, 1992 on a
police requisition with reference to G.D.No.2000 of Police Station, Daboka. It is
therefore somewhat surprising that though the aforesaid persons had been removed to the
hospital by the Army and examined on police requisition at about mid night, yet no
formal FIR had registered by the police till 11.00 a.m. Two explanations can be given for
this omission, one that the police, as is its wont, had refused to register a case or in the
alternative and to take a more charitable view, that it had not been possible to do so
earlier as the area was under curfew and aflame in a communal riot. The submission
about the delay in the lodging of the FIR in the circumstance of the case is without basis.
The judgments cited by the learned counsel on this aspect,
@page-SC2480
thus, have no relevance to the facts of the case.
64. The learned counsel for the appellants has also laid much emphasis on the fact that
Jakir one of the injured and apparently a close relative of the other eye witnesses, having
not been examined, a doubt had been cast on the prosecution story. There is absolutely no
justification for this argument. It is clear from the evidence of Dr. Madhusudhan Dev
Goswami PW1 that Mohd. Jakir had suffered only a simple injury whereas Mohd.
Mustafa had been seriously hurt. It must also be noted that as the incident had happened
at the dead of night during communal disturbances which had apparently started on or
soon after 6th December 1992, and for Mohd. Taheruddin to be present at home to guard
his huge family of a wife, two sons and six daughters was to be accepted. Conversely, his
absence from home during these crucial days would have been most unnatural and alien
to normal human behaviour. The High Court has opined that as the statement of Mohd.
Taheruddin given in Court was not substantiated by the medical evidence, his evidence
was "highly suspicious". This finding is unacceptable as his presence was absolutely
natural and the story that he was guarding his crop a short distance away inspires
confidence and merely because some persons who had been named by him were
ultimately found by the court to be not present would not to our mind dislodge the entire
case. Moreover the medical evidence which makes the presence of Taheruddin
"suspicious" as per the High Court, is the absence of the arrow injury on the hand. It
must, however, be emphasized that Taheruddin's statement on this aspect is a casual one
and does not give any indication as to the nature or extent of the injury, except for the
observation that the arrow shot at his body had missed the target and had hit his hand
instead. The evidence of Taheruddin when read as a whole corresponds in material
particulars with the statements of the other two eye witnesses. Likewise, the statement of
Mohd. Mustafa, who was seriously injured and Mohd. Hanif clearly support the
prosecution story. All three witnesses had witnessed the incident from close quarters and
as most of the accused were known to them, they being neighbours, they were in a
position to identify them. It is true, as has been contended, that the names of some of the
accused do not figure in the statements made to the police, but this omission can be
reasonably attributed to a tainted investigation or to the fact that the sheer brutality of the
crime had stunned the witnesses into confusion. The horror which would have faced the
witnesses, can hardly be exaggerated.
65. It has been argued by the learned counsel for the appellants that the FIR had been
motivated on account of the land dispute between Taheruddin and accused Gopal (who
died before trial) and Hari Singh and Kailash. Reliance for this argument has been placed
on the admission made by Mohd. Taheruddin in his statement that some dispute did exist
between them. From the facts and background the converse possibility (as the
Commission's reports would suggest) that the accused had, in fact, decided to utilize the
disturbed situation to their advantage and to sort out their enemies once for all, cannot be
ruled out. On the other hand, it is difficult to accept that a witness who has seen the
slaughter of his family would be so perverted or crass as to leave out the real assailants
and to rope in innocent persons. The fact that the victims were a young woman, and two
children, and grievous injuries to two other young boys supports the view that the
murders had not been committed on account of any enmity, but were a fall out of the
communal tension prevailing in that area. It bears reiteration, that the victims could
hardly have been dealt with on account of any animosity, but the assailants attempted to
do away with anyone who came along. In any case, as already mentioned above, the
Sessions Judge and the High Court have already done the sifting that is required and
ultimately maintained the conviction of only a few of the accused.
66. In conclusion, it must be observed that in matters such as the present one, it is the
statements of the eye witnesses which are of the utmost importance and unless very good
reasons can be given for disbelieving them, they must be accepted, and the arguments
with regard to the delay in the FIR or some minor contradictions in the statements under
section 161, vis-a-vis the statements in Court or a flaw in the recording of the post-
mortem or the inquest reports or the non-recovery of murder weapons etc. are a matter of
little concern as these issues would be relevant and in normal circumstances and to a
situation where the civil
@page-SC2481
administration was functioning effectively, but in a case of a complete break down of the
civil administration, these broad arguments are wholly inapplicable.
There is, thus, no merit in these appeals. They are accordingly dismissed.
ORDER
In view of the difference of opinion, let the matter be placed before three-Judge Bench.
The Registry is directed to place the records before the Hon'ble the Chief Justice of India
for appropriate orders.
Order accordingly.
AIR 2008 SUPREME COURT 2481 "Man Singh v. State of Haryana"
-2008.
Man Singh v. State of Haryana and Ors.
Constitution of India, Art.14, Art.311 - EQUALITY - TERMINATION OF SERVICE -
DISCIPLINARY PROCEEDINGS - SERVICE MATTERS - Disciplinary proceedings -
Discriminatory action - Appellant incharge of police party deputed to carry departmental
vehicles for repairs - Member of his party violating Prohibition Law - Proceedings
initiated both against appellant and main offender - Disciplinary authority exonerating
main offender on his acquittal in criminal case - But finding appellant guilty and
imposing punishment - Action of Departmental authorities is discriminatory - Liable to be
set aside.
R. S. A. No. 4272 of 2006, D/-20-03-2006 (P and H), Reversed. (Paras 18, 19, 20)
Kamal Mohan Gupta, and P.K. Bajaj, for Appellant; Arvind Kumar Gupta, Addl.
Advocate General, Vipin Bihari and T.V. George, with him for Respondents.
Judgement
LOKESHWAR SINGH PANTA, J. :- Special leave granted.
2. This appeal is directed against the judgment and order dated 20.3.2006 passed by a
learned Single Judge of the High Court of Punjab and Haryana, Chandigarh, whereby and
whereunder Regular Second Appeal No.4272 of 2005 filed by the appellant-plaintiff from
the judgment and decree dated 1.9.2005 passed by the learned Additional District Judge,
Sonepat, in Civil Appeal No.21 of 2005, was dismissed.
3. Facts, in brief, giving rise to the filing of this appeal are that the appellant-plaintiff
(hereinafter referred to as 'the appellant') was serving as Sub-Inspector in Police
Department, Rohtak. In July 1996, the appellant was deputed as Incharge of the police
party comprising of ASI Sucha Singh, HC Suraj Bhan and HC Vijay Pal for taking two
Government vehicles bearing Nos. HR 22 0020 and HR 03A 7880 respectively from
Chandigarh to Hyderabad (Andhra Pradesh) for repair and fitting of Jammers. HC Vijay
Pal was driving one of the vehicles. He purchased 12 bottles of Indian-Made Foreign
Liquor [IMFL] at Kota (Rajasthan) and concealed the consignment of the liquor in the
dickey of the car without the knowledge and consent of the appellant. On checking of the
vehicles by the Excise Staff of Adilabad in the State of Andhra Pradesh, 12 bottles of
IMFL were recovered from the luggage boot of the car being driven by HC Vijay Pal,
which gave rise to registration of a case PR No.470/ 95-96 dated 31.07.1996 against HC
Vijay Pal for transporting liquor in violation of prohibitory orders of the State
Government.
4. The Superintendent of Police, Sonepat - respondent No.2 herein ordered a
departmental inquiry against the appellant and HC Vijay Pal charging the appellant with
improper control over his subordinates which amounts to dereliction of duties and for the
lapses of indiscipline as Police Officer. The Inquiry Officer found the appellant guilty of
the charge on the basis of summary of allegations and submitted his report to the
respondent No.2. The respondent No.2, on receipt of the inquiry report, issued show-
cause notice dated 18.03.1997 to the appellant calling upon him to show-cause why
penalty of dismissal from service be not imposed upon him. The appellant was directed to
file his reply within 15 days from the receipt of the show-cause notice and in default
thereof, final order of the proposed penalty of dismissal from the service would be passed
against him. The appellant, accordingly, filed a detailed reply to the show-cause notice
denying the allegations of misconduct and dereliction of duties on his part. He submitted
that he has unblemished service record to his credit and has never been found guilty of
any acts of omissions and commissions in discharging his duties during his long service
career of about 34 years in the Police Department of the State.
5. Respondent No.2, keeping in view the

@page-SC2482
length of service and unblemished record of service of the appellant, imposed punishment
of stoppage of two annual future increments with permanent effect upon the appellant.
6. The appellant filed statutory appeal dated 11.08.1999 to the Deputy Inspector General
of Police, Rohtak Range - respondent No.3 herein, under Rule 16.29 of the Punjab Police
Rules, 1934 against the order of respondent No.2. The Appellate Authority by an order
dated 11.08.1999 rejected the appeal of the appellant.
7. The appellant preferred Revision Petition before the Director General of Police,
Haryana respondent No.4 herein, which came to be rejected by an order dated
15.06.2001.
8. The appellant thereafter instituted suit inter alia praying for declaration that the order
of punishment dated 30.09.1997 passed by respondent No.2; order dated 11.08.1999
recorded by respondent No.3 in appeal vide which the order of punishment was upheld
and the appeal of the appellant was dismissed and order dated 15.06.2001 passed by
respondent No.4 upholding the orders of the authorities below being illegal, null and
void, arbitrary and against the rules of natural justice with consequential relief of
permanent injunction restraining the respondents from implementing the order of
punishment to the detriment of the appellant.
9. The learned Additional Civil Judge (Senior Division), Sonepat, dismissed the Civil
Suit No.571/1 of 2002 of the appellant by the judgment and decree dated 21.03.2005.
10. Being aggrieved against and dissatisfied with the judgment and decree of the trial
court, the appellant carried the matter in appeal. The learned Additional District Judge,
Sonepat, dismissed the said appeal on 01.09.2005.
11. The appellant preferred Second Appeal in the High Court of Punjab and Haryana,
which was dismissed by learned Single Judge by the impugned judgment dated
20.03.2006. The relevant paragraphs of the judgment of the High Court are extracted as
under :-
"Both the Courts below have concurrently held that the order of punishment had been
passed against the plaintiff after the due procedure had been followed by the department
in conformity with the rules applicable to the plaintiff. It has also been held that
principles of natural justice were also adhered to. Consequently, the suit filed by the
plaintiff was dismissed by the trial court. The appeal filed by the plaintiff also failed
before the learned First Appellate Court.
It is well-settled that the Civil Court cannot sit in appeal over the departmental
proceedings or an order of punishment passed by the punishing authority.
Shri Jai Vir Yadav, learned counsel appearing for the appellant has vehemently argued
that another employee against whom the charges were primarily reflected, had been
exonerated.
I am afraid, the aforesaid argument of the learned counsel cannot be accepted by this
Court sitting in second appeal. As noticed above, it is for the department to find out the
merits of the charges against each of the delinquent officials. Until and unless some mala
fides are alleged and proved, the Civil Court has a very limited jurisdiction.
Nothing has been shown that the findings recorded by the Court below suffer from any
infirmity or are contrary to the record.
No question of law, much less any substantial question of law arises in the present appeal.
Dismissed."
12. Now, the appellant has preferred this appeal challenging the correctness and validity
of the judgment and order of the High Court.
13. We have heard Shri Kamal Mohan Gupta, learned counsel for the appellant, and Shri
Arvind Kumar Gupta, Additional Advocate General for the respondents and perused the
entire material placed on record. The facts narrated hereinabove are not in dispute to the
extent that the appellant on 25.07.1996 was deputed as Incharge of police party
comprising ASI Sucha Singh, HC Vijay Pal and HC Suraj Bhan to get technical repairs of
two cars of the Government of Haryana at Hyderabad. On 31.07.1996 during the
checking of the vehicles in the jurisdiction of District Adilabad (A.P.) by the Excise Staff
of the Government of Andhra Pradesh, 12 bottles of liquor were found in the staff car No.
HR 22 0020 which, at the relevant time, was being driven by HC Vijay Pal, against whom
a criminal case was registered by the Police in District Adilabad. The appellant and HC
Vijay Pal were also dealt with in departmental proceedings initiated against them under
the Punjab Police Rules.
@page-SC2483
The charge against the appellant was that the appellant did not exercise proper control
upon HC Vijay Pal, driver of the official vehicle, when HC Vijay Pal was apprehended by
the Excise Staff of Andhra Pradesh for concealing 12 bottles of liquor in the dickey of the
official vehicle of the State of Haryana. In the departmental proceedings, the Inquiry
Officer held the appellant as well as HC Vijay Pal guilty of misconduct, indiscipline and
dereliction of duties. The disciplinary authority, on consideration of the reply submitted
by the appellant to the show-cause notice, imposed punishment of stoppage of two annual
future increments with permanent effect upon the appellant. The appellate authority as
well as the revisional authority both have concurred with the disciplinary authority and
accordingly dismissed the appeal and revision respectively filed by the appellant. As
noticed above, the trial court, the first Appellate Court and the High Court in Second
Appeal have concurrently held that the Civil Court cannot sit in appeal over the
departmental proceedings or an order of punishment passed by the punishing authority.
The High Court dismissed the appeal of the appellant without framing the substantial
questions of law which were raised in precise terms before it in the Memorandum of
Appeal.
14. On perusal of the judgment of the court of first appeal, we find that the first appellate
court has practically recorded identical reasoning and finding as stated by the trial court
in its judgment and decree whereunder the suit of the appellant was dismissed. It was
urged on behalf of the appellant as noticed by the first appellate court in paragraph 8 of
the judgment that the appellant was discriminated by the respondents in dealing with the
departmental punishment recorded against him and against HC Vijay Pal whose
punishment was set aside by the appellate authority soon after his acquittal by the
criminal court in the Excise case, whereas the appeal and revision filed by the appellant
came to be rejected simply on the ground that the appellant being in-charge of the police
party had failed to take proper supervision over the conduct of HC Vijay Pal who
committed criminal offence as a police personnel in discharging his official duties. The
first Appellate Court, after noticing the arguments of the learned counsel for the parties,
has not recorded any reason for rejecting the pleas of the appellant and it dismissed the
appeal by observing as under :-
"The learned Lower Court has rightly discussed the evidence and the various rules. The
findings given under all the issues are correct and the same stands affirmed."
15. Before this Court, the appellant has filed a copy of the Memorandum of the Grounds
of Appeal preferred by him before the High Court. In paragraph 4 of the grounds of
Second Appeal, the appellant contended as under :-
"The learned courts below have committed a patent illegality in not considering the case
in its right perspective that the appellant was discriminated in the matter of awarding
punishment. The main accused namely HC Inder Pal Singh (real name HC Vijay Pal)
against whom the FIR was registered in Andhra Pradesh for being found in possession of
liquor in the dickey of the car and he has also departmentally proceeded against and was
punished with stoppage of two annual increments, but on an appeal, his punishment was
set aside. Thus, when no punishment was awarded to the main accused, there is no
justification to sustain the proceedings awarded to the appellant, who has been inflicted
the punishment simply on the ground that he being incharge was negligent in keeping
control over his subordinate."
16. On reading the above-extracted judgment of the High Court, it becomes clear that the
High Court has not framed the substantial questions of law as raised by the appellant
before it in terms of proviso to Section 100, sub-section (5) of the Code of Civil
Procedure and dismissed the Second Appeal in slip shod manner without assigning any
independent reason.
17. We have independently examined the entire material on record and find that the
appellant had filed a detailed reply to the show-cause notice dated 18.03.1997 and in
support of his defence, he filed statement of HC Vijay Pal dated 30.07.1996. A copy of
the said statement has been placed on record as Annexure P-1, which reads as under :-
"I, Vijay Pal Chaudhari S/o Madan Singh R/o not legible, Tehsil Jaggar, Distt. Rohtak
Haryana states that he started journey on Government duty from Panchkula to Hyderabad
on 25.07.96. I purchased [12] bottles of IML at "Quota Rajasthan" for "personal
@page-SC2484
consumption" as I have to stay in Hyderabad for 15 days to attend the Govt. work. I
purchased [12] bottles of IML at the rate of Rs.80/- each bottle. I kept the above IML
bottles in the dickey of the car without the knowledge of Man Singh.
The said 12 bottles of IML have been recovered and seized by the Excise Officer at
prohibited excise check post ICP Bhorj on 30.07.96 at about 7.30 a.m. I am not aware
about the implementation of prohibition Act in the A.P. State.
Sd/- Vijay Pal Choudhari
30.07.96"
18. In view of the factual backdrop and the above-stated statement of HC Vijay Pal, we
are of the opinion that the respondents cannot be permitted to resort to selective treatment
to the appellant and HC Vijay Pal, who was involved in criminal case besides
departmental proceedings. HC Vijay Pal has been exonerated by the appellate authority
mainly on the ground of his acquittal in the criminal case, whereas in departmental
proceedings he has been found guilty by the disciplinary authority and was awarded
punishment for serious misconduct committed by him as police personnel.
19. We may reiterate the settled position of law for the benefit of the administrative
authorities that any act of the repository of power whether legislative or administrative or
quasi-judicial is open to challenge if it is so arbitrary or unreasonable that no fair minded
authority could ever have made it. The concept of equality as enshrined in Article 14 of
the Constitution of India embraces the entire realm of State action. It would extend to an
individual as well not only when he is discriminated against in the matter of exercise of
right, but also in the matter of imposing liability upon him. Equal is to be treated equally
even in the matter of executive or administrative action. As a matter of fact, the doctrine
of equality is now turned as a synonym of fairness in the concept of justice and stands as
the most accepted methodology of a governmental action. The administrative action is to
be just on the test of 'fair play' and reasonableness. We have, therefore, examined the case
of the appellant in the light of the established doctrine of equality and fair play. The
principle is the same, namely, that there should be no discrimination between the
appellant and HC Vijay Pal as regards the criteria of punishment of similar nature in
departmental proceedings. The appellant and HC Vijay Pal were both similarly situated,
in fact, HC Vijay Pal was the real culprit who, besides departmental proceedings, was an
accused in the excise case filed against him by the Excise Staff of Andhra Pradesh for
violating the Excise Prohibition Orders operating in the State. The appellate authority
exonerated HC Vijay Pal mainly on the ground of his acquittal by the criminal court in
the Excise case and after exoneration, he has been promoted to the higher post, whereas
the appeal and the revision filed by the appellant against the order of punishment have
been rejected on technical ground that he has not exercised proper and effective control
over HC Vijay Pal at the time of commission of the Excise offence by him in the State of
Andhra Pradesh. The order of the disciplinary authority would reveal that for the last
about three decades the appellant has served the Police Department of Haryana in
different capacity with unblemished record of service.
20. In the backdrop of the above-mentioned facts and circumstances of the case, we are
of the view that the order of the disciplinary authority imposing punishment upon the
appellant for exhibiting slackness in the discharge of duties during his visit to Hyderabad
when HC Vijay Pal was found involved in Excise offence, as also the orders of the
appellate and revisional authorities confirming the said order are unfair, arbitrary,
unreasonable, unjustified and also against the doctrine of equality. The High Court has
failed to appreciate and consider the precise legal questions raised by the appellant before
it and dismissed the Second Appeal by unreasoned judgment. The judgment of the High
Court, therefore, confirming the judgments and decrees of the first appellate court and
that of the trial court is not sustainable. The appellant deserves to be treated equally in the
matter of departmental punishment initiated against him for the acts of omissions and
commissions vis-a-vis HC Vijay Pal, the driver of the vehicle.
21. However, in normal course we could have remitted the case to the High Court for
taking fresh decision, but we are of the opinion that in a case of this nature, we should in
exercise of our extraordinary jurisdiction under Article 142 of the Constitution of India
decided the case on merits to avoid further
@page-SC2485
ther delay in deciding the Regular Second Appeal by the High Court.
22. In the result, for the above-said reasons and discussions, the appeal is, accordingly,
allowed. The judgment dated 20.03.2006 of the High Court in RSA No. 4272 of 2005
confirming the Judgments and decrees of the courts below shall stand set aside.
Consequently, Civil Suit No. 571/1 of 2002 on the file of the Additional Civil Judge
(Senior Division), Sonepat, is decreed in terms of the relief sought for.
23. In the facts and circumstances of the case, the parties are left to bear their own costs.
Appeal allowed.
AIR 2008 SUPREME COURT 2485 "Babu Singh v. Ram Sahai"
(From : 2006 (1) Pun LR 592)
-2008.
Babu Singh and Ors. v. Ram Sahai @ Ram Singh
(A) Succession Act (39 of 1925), S.63 - Evidence Act (1 of 1872), S.68 - SUCCESSION
- DOCUMENTS - EXECUTION - WILL - Will - Execution - Proof - Examination of
attesting witnesses to prove due execution - Not all that is required - Propounder has to
explain, by leading evidence, surrounding, suspicious circumstances. (Para 11)
(B) Succession Act (39 of 1925), S.63 - Evidence Act (1 of 1872), S.69 - SUCCESSION -
DOCUMENTS - WILL - WITNESS - Will - Execution - Proof where no attesting
witnesses found - Relaxation from strict proof - Availability - Party must have taken steps
to compel attendance of attesting witnesses - No such steps taken - On mere statement of
party made through counsel that witness is won over - Relaxation of mode of proof by
Court - Not proper.
2006 (1) Pun LR 592, Reversed. (Paras 16, 21)
2007 AIR SCW 3886 : AIR 2007 SC 2219 (Ref.) 20
2007 AIR SCW 6787 : AIR 2008 SC 300 (Ref.) 12
AIR 1978 Mad 78 (Ref.) 19
AIR 1945 Cal 350 (Rel.on) 18
AIR 1939 Cal 688 (Rel. on) 17
Viraj Dattar, Vineet Jhanji and Ms. Jyoti Mendiratta, for Appellants; Ms. N. Shoba, Sri
Ram J. Thalapathy and V. Adhimoolam, for Respondent.
Judgement
2. Interpretation of Section 69 of the Evidence Act, 1872 is in question in this appeal
which arises out of a judgment and order dated 11.11.2005 passed by the High Court of
Punjab and Haryana.
3. One Ram Bux executed a Will dated 25.9.1981 in favour of the respondent herein
bequeathing his right, title and interest in the property in question. Appellants claimed
themselves to be the owner and in possession of the suit property which is a shop, as a
co-sharer to the extent of 6 marlas out of the land measuring 3 kanal and one marla
appertaining to Khasra No.53 situated in the area of Chhoti Haveli, Tehsil and District
Ropar.
4. Learned Trial Court, inter alia, raised : the following issues :
"1 .Whether the plaintiff is owner of the suit property? OPP
2. Whether the Plaintiffs are entitled to the possession of the shop in question? OPP
XXX XXX XXX
6. Whether the defendants are entitled to the counter claim to the effect that they are
owner of the shop in question and co-sharer to the extent of 0-6 marlas of the land fully
detailed in the counter claim? OPD"
We need not go into other issues between the parties.
5. The learned Trial Judge, although opined that the suit was bad for non-impleading
Karam Kaur and Dalwinder Kaur, daughters of the testator as parties to the suit,
proceeded to consider the validity of the Will in order to avoid any possibility of remand
by the Trial Court, stating :
"The plaintiff was duty bound to examine at least one attesting witnesses to prove the
execution of the Will Ex.P/2. It has come in evidence that Lambardar Mohan Singh
expired before he could be examined as a witness. Other attesting witnesses House was
alive and had been given up by the plaintiff on the plea that he had been won over by the
other party. Thus, Will Ex.P/2 has not been proved according to Section
@page-SC2486
68 of the Indian Evidence Act."
6. The learned Judge, however, noticed that one of the attesting witnesses, namely,
Harnek Singh @ House, according to the learned counsel for the plaintiff, had gone
outside India and another attesting witness, namely, Lambardar Mohan Singh being dead,
the Will must be held to have been duly proved. It was held :
"Though there is no plausible and cogent evidence on record to show that House had
gone to foreign country. But even if for argument sake the plea of the Plaintiff is taken to
be correct. Even in that eventuality the Sub-Registrar has only identified the signatures on
the will to be that of Mohan Singh as attesting witness. Though the Plaintiff also
examined PW-9 Davinder Parshad Handwriting expert who examined the signatures of
the executant on the Will Ex.P/2 and the sale deed but he took all these signatures as
standard signatures. The sale deeds, however, have not been proved by the Plaintiff to
contain the signatures of Ram Bux. Expert compared these standard signatures with the
questioned signatures on the family settlement. Therefore, there is nothing on record to
suggest that Handwriting expert took the signatures of will as questioned and compared
the same with admitted or proved signatures of Ram Bux. Therefore, the Plaintiff
miserably failed to show that the Will Ex.P/2 contained the signatures of Ram Bux.
Consequently, the Plaintiff failed to prove the due execution of the Will Ex.P/2, as per the
requirement of Section 69 of the Indian Evidence Act.
In result, the Plaintiff failed to show that deceased Ram Bux executed legal and valid
Will dated 25.9.1981 in his favour. In view of this finding I need not dilate on the
argument of the learned counsel for the defendants that the Will Ex.P/2 was surrounded
by suspicious circumstances."
7. An appeal was preferred thereagainst.
The First Appellate Court, however, on the said issue held :
"Now so far as the Will Ex.P/2 is concerned, it was allegedly executed by Ram Bux
Singh son of Daya Ram on 25.9.1981 and was duly got registered in the office of the
Sub-Registrar, Ropar, on the same date. It is evident that this Will was attested by two
witnesses, namely, Harnek Singh son of Ram Prakash and Mohan Singh, Lamberdar. So
far as Mohan Singh Lamberdar is concerned, he had since died on 4.7.1983 vide death
Certificate Ex.P3 and for this reason he could not be brought in the witness box.
However, Harnek Singh son of Ram Parkash is alive but it is stated by Shri A.L. Verma,
counsel for the Plaintiff as well as Plaintiff himself on 29.10.1999 that Harnek Singh
witness has joined hands with the opposite party and moreover, he has intentionally left
to a foreign country. For this reason, Harnek Singh son of Ram Parkash also could not be
examined by him. Now the question arises whether the statement of the deed-writer who
also knew Ram Bux Singh can be relied upon or not and whether he can be treated as an
attesting witness or not."
8. The High Court by reason of the impugned judgment dismissed the Second Appeal
preferred by the appellant herein opining that no substantial question of law arose for its
consideration.
9. Mr. Viraj Datar, learned counsel appearing on behalf of the appellant, submitted that in
the facts and circumstances of this case, Section 69 of the Evidence Act cannot be said to
have any application whatsoever and, thus, the High Court committed a serious error in
passing the impugned judgment.
10. Indisputably a Will is to be attested by two witnesses in terms of Section 68 of the
Indian Evidence Act (Act). Indisputably, the requirement of Section 63(1)(c) of the Indian
Succession Act is required for to be complied with for proving a Will. Section 68 of the
Act mandates proof by attesting witnesses of not merely of execution but also attestation
by two witnesses. That is to say, not only the execution of Will must be proved but
actually execution must be attested by at least two witnesses. Attestation must of
execution of Will be in conformity with the provisions of Section 3 of the Transfer of
Property Act.
'Attestation' and 'execution' connote two different meanings. Some documents do not
require attestation. Some documents are required by law to be attested.
11. In terms of Section 68 of the Act, although it is not necessary to call more than one
attesting witness to prove due execution of a Will but that would not mean that an attested
document shall be proved by the evidence of one attesting witness only and two or more
attesting witnesses need not be
@page-SC2487
examined at all. Section 68 of the Act lays down the mode of proof. It envisages the
necessity of more evidence than mere attestation as the words 'at least' have been used
therein. When genuineness of a Will is in question, apart from execution and attestation
of Will, it is also the duty of a person seeking declaration about the validity of the Will to
dispel the surrounding suspicious circumstances existing if any. Thus, in addition to
proving the execution of the Will by examining the attesting witnesses, the propounder is
also required to lead evidence to explain the surrounding suspicious circumstances, if
any. Proof of execution of the Will would, inter alia, depend thereupon.
12
. The Court, while granting probate of the will, must take into consideration all relevant
factors. It must be found that the will was product of a free will. The testator must have
full knowledge and understanding as regards the contents thereof. For the said purpose,
the background facts may also be taken note of. Where, however, a plea of undue
influence was taken, the onus wherefor would be on the objector and not on the
propounder. {See Savithri and Ors. v. Karthyayani Amma and Ors. [JT (2007) 12 SC
248]} 2007 AIR SCW 6787
13. Section 69 of the Act reads, thus :

"Section 69 - Proof where no attesting witness found - If no such attesting witness can be
found, or if the document purports to have been executed in the United Kingdom, it must
be proved that the attestation of one attesting witness at least is in his handwriting, and
that the signature of the person executing the documents is in the handwriting of that
person."
14. It would apply, inter alia, in a case where the attesting witness is either dead or out of
the jurisdiction of the court or kept out of the way by the adverse party or cannot be
traced despite diligent search. Only in that event, the Will may be proved in the manner
indicated in Section 69, i.e., by examining witnesses who were able to prove the
handwriting of the testator or executant. The burden of proof then may be shifted to
others.
15. Whereas, however, a Will ordinarily must be proved keeping in view the provisions
of Section 63 of the Indian Succession Act and Section 68 of the Act, in the event the
ingredients thereof, as noticed hereinbefore, are brought on record, strict proof of
execution and attestation stands, relaxed. However, signature and handwriting, as
contemplated in Section 69, must be proved.
16. Indisputably, one of the attesting witnesses was dead. Our attention, however, has
been drawn to the fact that a purported summons were taken out against the said Harnek
Singh. Admittedly, it was not served. There is nothing on record to show that any step
was taken to compel his appearance as a witness. Ram Sahai in his deposition did not
make any statement that the said Harnek Singh had been won over by the appellant. He
did not say that despite service of summons, Harnek Singh did not appear as a witness. In
his cross-examination, he alleged that he and Harnek Singh were inimically disposed of
towards each other even prior to 1991 and in fact "since the time of his ancestors". It was
furthermore alleged that they are not on speaking terms. A suggestion was given to him
that in fact Harnek Singh had come to Court on that day to which he denied his
knowledge. It is only in answer to a question in cross-examination, he stated that he did
not intend to examine the said Harnek Singh.
Harnek Singh may be a person who had been won over by the appellant but there must be
some evidence brought on records in that behalf. The learned Trial Judge, in our opinion,
rightly rejected the bare statement made by the learned counsel for the plaintiff that the
other attesting witness had gone out of the country. Respondent himself did not say so on
oath. He did not examine any other witness.
He did not make any attempt to serve another summons upon him. No process was asked
for to be served by the court. Interestingly, a statement was made by a counsel before the
appellate court. That statement is said to have been made before the appellate court by the
plaintiff himself on 29.10.1999. We are at a loss to understand how such a statement by a
counsel or by the respondent himself was taken into consideration for the purpose of
invoking Section 69 of the Indian Evidence Act. A purported statement, not as a witness
but through the counsel, cannot be said to be an evidence. We have noticed hereinbefore
that learned Trial Judge did not accept such a statement. In that view of the matter, the
first appellate Court, in our opinion, committed a serious legal error.
@page-SC2488
17. In Hare Krishna Panigrahi vs. Jogneswar Panda and Others [AIR 1939 Cal. 688],
B.K. Mukherjea, J. referring to Section 71 stated the law thus :
"This presupposes in my opinion that the witness is actually produced before the Court
and then if he denies execution or his memory fails or if he refuses to prove or turns
hostile, other evidence can be admitted to prove execution. In the case referred to above
the witness was actually before the Court and afterwards turned hostile. In this case
however, the witness was not before the Court at all and no question of denying or failing
to recollect the execution of the document did at all arise. The plaintiff simply took out a
summons as against this witness and nothing further was done later on. In a case like this
where the attesting witnesses are not before the Court, S. 71, Evidence Act, has in my
opinion, got no application. In such cases it is the duty of the plaintiff to exhaust all the
processes of the Court in order to compel the attendance of any one of the attesting
witnesses and when the production of such witnesses is not possible either legally or
physically, the plaintiff can avail himself of the provisions of S. 69, Evidence Act."
18. In Amal Sankar Sen and Ors. v. The Dacca Co-operative Housing Society Ltd. (in
liquidation) by Inspector Liquidator, Co-operative Society, Dacca [(A.I.R. (32) 1945
Calcutta 350], it was held :
"As we have already stated, that proposition of law cannot be challenged at this date. In
order that S.69, Evidence Act, may be applied, mere taking out of the summons or the
service of summons upon an attesting witness or the mere taking out of warrant against
him is not sufficient. It is only when the witness does not appear even after all the process
under Order 16 Rule 10, which the Court considered to be fit and proper had been
exhausted that the foundation will be laid for the application of Section 69, Evidence Act.
The party, namely, the plaintiff, must move the Court for process under Order 16, Rule
10, Civil P.C., when a witness summoned by him has failed to obey the summons but
when the plaintiff does move the Court but the Court refuses the process asked for we do
not see why Section 69, Evidence Act, cannot be invoked. The other view would place
the plaintiff in an impossible position when the witness is an attesting witness to the
document on which he has brought the suit, and the Court refuses coercive processes
contemplated in Order 16 Rule 10 Civil P.C."
19. In Doraiswami vs. Rathnammal and others [(AIR 1978 Mad. 78], the same principle
was reiterated, stating :
"11.D. 2. 2 merely identifies the signature of Palani Navithan found in Ex. B-1 as that of
his father. The mere fact that the signature of Palani Navithan is proved, in our opinion, is
not sufficient to prove the due execution of the will. The evidence of this witness is relied
on for proving the signature of one of the attesting witnesses and thus enable the third
defendant to adduce secondary evidence regarding the due execution of the will. The
evidence of D.W. 2 will be relevant only for the purposes of S. 69 of the Evidence Act.
Section 69 will come into play only when no attesting witness can be found. In this case,
as already stated, an attesting witness D.W. 4 has been examined and he has denied his
attestation of the document. Therefore S. 69 can have no application. The evidence of
D.W. 2, therefore, even if accepted, will not help the third defendant."
20
. We may notice that in Apoline D' Souza v. John D' Souza [(2007) 7 SCC 225], this
Court held that the question as to whether due attestation has been established or not will
depend on the fact situation obtaining in each case. Therein, it was held : 2007 AIR
SCW 3886
"13. Section 68 of the Evidence Act, 1872 provides for the mode and manner in which
execution of the will is to be proved. Proof of attestation of the will is a mandatory
requirement. Attestation is sought to be proved by PW 2 only. Both the daughters of the
testatrix were nuns. No property, therefore, could be bequeathed in their favour. In fact
one of them had expired long back. Relation of the testatrix with the respondent
admittedly was very cordial. The appellant before us has not been able to prove that she
had been staying with the testatrix since 1986 and only on that account she was made a
beneficiary thereof. The will was full of suspicious circumstances. PW 2 categorically
stated that the will was drafted before her coming to the residence of the testatrix and she
had only proved her signature as a witness to the execution of the will but the document
was a handwritten one. The original will is typed in Kannada, although the blanks were
filled up with English letters. There is no
@page-SC2489
evidence to show that the contents of the will were read over and explained to the
testatrix. PW 2 was not known to her. Why was she called and who called her to attest the
will is shrouded in mystery. Her evidence is not at all satisfactory in regard to the proper
frame of mind of the testatrix. There were several cuttings and overwritings also in the
will."
In the aforementioned situation, the Will was said to have not been proved. This Court
therein noticed, inter alia, the decision of B. Venkatamuni v. C.J. Ayodhya Ram Singh and
Ors. [(2006) 13 SCC 449] wherein the law has been laid down in the following terms :
"25. The Division Bench of the High Court was, with respect, thus, entirely wrong in
proceeding on the premise that compliance of legal formalities as regards proof of the
Will would subserve the purpose and the suspicious circumstances surrounding the
execution thereof is not of much significance." 2006 AIR SCW 6115
21. We generally agree with the aforementioned view of the Calcutta High Court.
Assuming, however, that even taking the course of Order XVI of the Code of Civil
Procedure might not be necessary, what was imperative was a statement on oath made by
the plaintiff. A deposition of the plaintiff is a witness before the Court and not the
statement through a counsel across the Bar. Such a statement across the Bar cannot be a
substitute for evidence warranting invocation of Section 69 of the Evidence Act.
22. For the reasons, aforementioned, the impugned judgment of the High Court as also
the First Court of Appeal cannot be sustained. They are set aside accordingly. Appeal is
allowed with no order as to costs.
Appeal allowed.
AIR 2008 SUPREME COURT 2489 "Hardeo Rai v. Shakuntala Devi"
(From : 2007 (1) Pat LJR 126)
-2008.
Hardeo Rai v. Shakuntala Devi and Ors.
(A) HINDU LAW - Hindu Law - Mitakshara Coparcenary property and joint Family
property - Distinction - Mitakshara Coparcenary carries definite concept - It is a body of
individuals created by law unlike a joint family which can be constituted by agreement of
parties. (Para 17)
(B) HINDU LAW - PARTITION - Hindu Law - Coparcenary property - Partition - When
intention is expressed to partition property, share of each of coparceners becomes clear -
Once share of a coparcener is determined, it ceases to be coparcenary property - Parties in
such an event would not possess property as "joint tenants" but as "tenants in common".
AIR 1969 SC 1330, Disting. (Para 21)
(C) Specific Relief Act (47 of 1963), S.20 - AGREEMENT TO SELL - SALE DEED -
PARTITION - POSSESSION - Specific Performance - Suit for - Agreement of sale -
Defendant failed to execute sale deed - Plea by defendant that property in question was
joint family property and agreement was result of forcible execution - However, existence
of coparcenary had not been established - No evidence was produced to show that parties
were in joint possession of property - Defendant failed to explain stipulation in agreement
that partition had already taken place - Admittedly, defendant and his other co-sharers
were in separate possession of property - Presumption of partition can therefore be drawn
- Plaintiff is entitled to decree.
AIR 1961 Pat 416, Disting. AIR 1936 Pat 417; AIR 1966 SC 470, Relied on. (Paras
19, 20, 26, 31)
AIR 1969 SC 1330 (Disting.) 18, 21, 25
AIR 1966 SC 470 (Rel. on) 24, 25
AIR 1961 Patna 416 (Disting.) 29
AIR 1936 Patna 417 (Rel. on) 28
Nagendra Rai, Sr. Advocate, Ansul Raj, Joseph Gaurav and T. Mahipal, for Appellants;
Gaurav Agrawal, for Respondents.
Judgement
2. Appellant is aggrieved by and dissatisfied with a judgment and order dated 16th
November, 2006 passed by a Division Bench of the Patna High Court in LPA No. 1334 of
1997 whereby and whereunder a judgment and order dated 15th September, 1997 passed
by a learned Single Judge of the said Court was set aside.
3. Appellant and the father of respondents herein had entered into an agreement to sell a
property admeasuring 18 kathas
@page-SC2490
and 5 dhurs of land situate in the District of Begusarai on or about 10th April, 1978. In
the said agreement a representation was made by the appellant herein that a partition of
the joint family property had taken place and each of four co-sharers had been in
possession of separate portions of the property allotted to them.
4. Father of the respondents had paid a sum of Rs. 16,000/- out of the total consideration
of Rs.25,000/-. They were put in possession of 16 kathas and 5 dhurs of land. The
balance amount of Rs. 9,000/- together with interest of Rs. 4,000/- was to be paid within
4 months from the date of agreement of sale i.e. 10th August, 1978.
5. Admittedly the said agreement was scribed by PW-14, Ram Gulam Pandit, PW-11,
Garib Nath Chaudhary and PW-12, Narayan Singh were witnesses to the said agreement.
6. As despite notice, the appellant failed and/or neglected to execute a sale deed in terms
of the said agreement a suit praying for specific performance thereof, which was
registered as Title Suit No.79 of 1978, was filed in the Court of the Subordinate Judge,
Begusarai.
7. In his written statement, the appellant raised two defences :
a) he was forcibly made to sign blank stamped papers whereon the purported agreement
of sale was scribed later on.
b) that the said property was a joint family property.
8. Respondents' father in support of his case examined himself as a witness. The scribe of
the agreement as also the witnesses were also examined in the said suit.
9. Appellant also examined 7 witnesses to prove his case. DW-2, Geeta Rai, admitted that
the appellant had been in possession of the land in dispute. Even appellant in his
deposition before the learned trial Judge, although stated in the examination-in-chief that
he and his brothers had not been in separate possession of the land, in the cross-
examination stated as under :-
"Bhiku Rai is my uncle. He has Â½ share on the south of the said property. My 4 kathas
and 19 dhurs is measured with 15 kathas of land on which there is my house. I have Â½
share in that there is no plot of 3 kathas and 6 dhurs. Brajkishore does not have
possession over any plot Khasra No. 1971 is measuring 1 bigha and 17 dhurs. There is
my share as well as share of Bhiku Rai in the south of the said property. There is no plot
of 4 kathas. No part in possession of Brajkishsore Rai. I have possession over the land
over which there is brick kiln Khasra No.2526 is as measuring 17 kathas. My share is
from the east."
10. Appellant, however, failed to explain the stipulation contained in the said agreement
that a partition of the joint family property had already taken place. Brothers of the
appellant were not examined to prove joint possession. Existence of the coparcenary had
not been established. The learned trial court keeping in view the nature of the evidences
brought on record, decreed the suit, dis-believing the defence of the appellant that the
said agreement was an outcome of a forcible execution. It, however, did not enter into the
question in regard to jointness of the property.
11. On an appeal having been preferred therefrom, the appellate court allowed the appeal
of the appellant by a judgment and decree dated 15th September, 1997 on the sole ground
that the suit property was a joint family property. The first appellate court in its judgment
held :-
"11. In his evidence the defendant has explained his alleged admission of private partition
in the family in the Mahda in question. According to him his signature and left thumb
impression was forcibly, on the point of gun, obtained by the plaintiff on blank papers
and later on a forged and fabricated Mahdanama was scribed over those papers.
12. I find that even in the Mahdanama (Ext. 1), it stood recited that rent receipt of entire
joint family lands were issued only in the name of Ram Autar Rai, the father of the
defendant. I further find that DWs 2, 5 and 6 and the defendant himself as DW 7 have
supported jointness in the family of the defendant at the time of execution of the alleged
Mahdanama and till date. Even after the death of his father in the year 1986. Nothing in
their cross-examination has been taken by the plaintiff to discredit their testimony in the
regard. The defendants' case that the lands shown is schedule A to the plaint have no
separate identification and it stood amalgamated on the spot with other lands belonging to
the family is supported by the report (Ext. 8) of the Advocate Commissioner (DW-3). In
such situation not
@page-SC2491
only jointness of the defendant with his brothers and father was proved, the plaintiff's
claim for being put in possession over 16 kathas 5 dhurs, including the brick kiln
(schedule B) on 10.4.1978 was also falsified."
12. The first appellate court, however, failed to determine the issue as to whether the
signatures of the appellant were forcibly obtained. In fact it did not enter into the said
question at all.
13. The Division Bench of the High Court, as noticed hereinbefore, allowed the appeal
preferred by the respondents herein.
14. Mr. Nagendra Rai, learned senior counsel appearing on behalf of the appellant, would
submit that keeping in view the specific defence raised by the appellant herein that the
property in question was a joint family property, it was obligatory on the part of the trial
court as also the Division Bench of the High Court to go into the said question.
15. The Division Bench, Mr. Rai would contend, wrongly proceeded on the basis that the
suit of the respondents could be decreed only on the basis of the representation made by
the appellant herein.
16. Mr. Gaurav Agrawal, learned counsel appearing on behalf of the respondents, on the
other hand, would submit :-
i) Jointness of a family must be established having regard to jointness of kitchen and
mess, which having not been proved and on the contrary, separate possession of the
appellant in the property having been admitted, there is no infirmity in the impugned
judgment.
ii) Main defence of the appellant in the suit being that he had not executed the document,
and the same having been found to be incorrect by the learned trial court there is no
infirmity in the impugned judgment particularly when no finding contrary thereto was
arrived at by the first appellate court.
17. There exists a distinction between a Mitakashra Coparcenary property and Joint
Family property. A Mitakashra Coparcenary carries a definite concept. It is a body of
individuals having been created by law unlike a joint family which can be constituted by
agreement of the parties. A Mitakashra Coparcenary is a creature of law. It is, thus,
necessary to determine the status of the appellant, and his brothers.
18. We may at the outset notice the characteristics of a Mitakakashra Coparcenary from
the decision of this Court whereupon Mr. Rai has placed strong reliance being State Bank
of India vs. Ghamandi Ram (Dead) through Gurbax Rai, AIR 1969 SC 1330.
Therein this Court was concerned with a notification issued by the Government of
Pakistan in terms of Section 45 of the Pakistan (Administration of Evacuee Property)
Ordinance, 1949. We may, however, notice the dicta laid down therein :
"7. According to the Mitakshara School of Hindu Law all the property of a Hindu joint
family is held in collective ownership by all the coparceners in a quasi-corporate
capacity. The textual authority of the Mitakshara lays down in express terms that the joint
family property is held in trust for the joint family members then living and thereafter to
be born (See Mitakshara, Chapter I. 1-27). The incidents of co-parcenership under the
Mitakshara law are : first, the lineal male descendants of a person up to the third
generation, acquire on birth ownership in the ancestral properties of such person;
secondly that such descendants can at any time work out their rights by asking for
partition; thirdly, that till partition each member has got ownership extending over the
entire property conjointly with the rest; fourthly, that as a result of such co-ownership the
possession and enjoyment of the properties is common; fifthly, that no alienation of the
property is possible unless it be for necessity, without the concurrence of the coparceners,
and sixthly, that the interest of a deceased member lapses on his death to the survivors. A
coparcenery under the Mitakshara School is a creature of law and cannot arise by act of
parties except in so far that on adoption the adopted son becomes a co-parcener with his
adoptive father as regards the ancestral properties of the latter."
19. The first appellate court did not arrive at a conclusion that the appellant was a
member of a Mitakashra co-parcenary. The source of the property was not disclosed. The
manner in which the properties were being possessed by the appellant vis-a-vis, the other
co-owners had not been taken into consideration. It was not held that the parties were
joint in kitchen or mess. No other documentary or oral evidence was brought on record to
show that the parties were in
@page-SC2492
joint possession of the properties.
20. One of the witnesses examined on behalf of the appellant admitted that the appellant
had been in separate possession of the suit property. Appellant also in his deposition
accepted that he and his other co-sharers were in separate possession of the property.
21
. For the purpose of assigning one's interest in the property, it was not necessary that
partition by metes and bounds amongst the coparceners must take place. When an
intention is expressed to partition the coparcenary property, the share of each of the
coparceners becomes clear and ascertainable. Once the share of a co-parcener is
determined, it ceases to be a coparcenary property. The parties in such an event would not
possess the property as "joint tenants" but as "tenants in common". The decision of this
Court in State Bank of India (supra), therefore is not applicable to the present case.
AIR 1969 SC 1330
22. Where a coparcener takes definite share in the property, he is owner of that share and
as such he can alienate the same by sale or mortgage in the same manner as he can
dispose of his separate property.
23. We have noticed the representation made by the appellant. If the representation to the
respondents' father was incorrect, the appellant should have examined his brothers. He
should have shown that such a representation was made under a mistaken belief. He did
nothing of that sort.
24
. In M.V.S. Manikayala Rao vs. M. Naraisimhaswami and others : AIR 1966 SC 470 this
Court stated the law thus :- Para 5 of AIR
"It is well settled that the purchaser of a coparcener's undivided interest in joint family
property is not entitled to possession of what he has purchased."
Thus, even a coparcenary interest can be transferred subject to the condition that the
purchaser without the consent of his other coparceners cannot get possession. He acquires
a right to sue for partition.
25
. It does not appear that in State Bank of India (supra) binding precedent in M.V.S.
Manikayala Rao (supra) was noticed. AIR 1969 SC 1330
AIR 1966 SC 470
26. However, in view of the admission made by the appellant himself that the parties had
been in separate possession, for the purpose of grant of a decree of specific performance
of an agreement, a presumption of partition can be drawn.
27. The learned single Judge of the High Court, with respect, committed a serious error in
so far as it failed to take into consideration the essential ingredients of a Mitakshra
Coparcernary.
28
. We may also notice that the Patna High Court in Dhanu Pathak vs. Sona Koeri : (1936)
XVII Patna Law Times 380 had held thus :- AIR 1936 Patna 417
"It is hardly necessary to add that there would have been no estoppel, if there had been
any collusion between the plaintiffs and the defendant, and if it had been established that
the former had deliberately misrepresented themselves to be tenure-holders to the
knowledge of the latter to defeat the provisions of the Chota Nagpur Tenancy Act."
29. The decision of the Patna High Court in Bageshwari Prasad Duivedi vs. Deopati Kuer
and another : AIR 1961 Patna 416 whereupon reliance has been placed by Mr. Rai was
rendered on a finding that the family was governed by Mitakashara School of Hindu Law
and the parties thereto was joint and in that view of the matter the share of defendant
No.2 therein not having been defined, no decree could be passed against him for the
execution of the mukarrari patta. In the aforementioned situation it was held that
agreement of sale cannot be enforced against the defendant No. 1 therein. Such is not the
position here.
30. The question which now arises for consideration is as to whether in a situation of this
nature the Court shall exercise its discretionary jurisdiction under Section 20 of the
Specific Relief Act, 1963.
31. The agreement was entered into in the year 1978. The suit had been decreed on 7th
February, 1981. Respondents' father had been put in possession of the property. No suit
has been filed by the alleged coparceners of the defendant/appellant so long. There was,
therefore, in our opinion, no reason as to why the judgment and decree passed by the
learned trial court should be interfered with.
32. For the reasons abovementioned the appeal fails and is dismissed with costs.
Appeal dismissed.
@page-SC2493
AIR 2008 SUPREME COURT 2493 "Godavari Finance Co., M/s. v. Degala
Satyanarayanamma"
-2008
M/s. Godavari Finance Co. v. Degala Satyanarayanamma and Ors.
Motor Vehicles Act (59 of 1988), S.2(30), S.168 - MOTOR VEHICLES - HIRE-
PURCHASE AGREEMENT - 'Owner of vehicle' - Motor Vehicle subjected to hire
purchase agreement - Financier cannot be treated as owner - Liability to pay
compensation cannot be saddled on him.
C.M.A. No. 844 of 1999, D/-08-08-2006 (AP), Reversed.
In case of a motor vehicle, which is subjected to a hire purchase agreement, the financier
cannot ordinarily be treated to be the owner. The person who is in possession of the
vehicle, and not the financier being the owner would be liable to pay damages for the
motor accident. Thus, the name of financier in the Registration Certificate would not be
decisive for determination as to who was the owner of the vehicle. Though ordinarily the
person in whose names the Registration Certificate stands should be presumed to be the
owner but such a presumption can be drawn only in the absence of any other material
brought on record or unless the context otherwise requires. C. M. A. No. 844 of 1999, D/-
8-8-2006 (AP), Reversed. (Paras 12, 13)
Ms. Bina Madhavan, S. Udaya Kumar Sagar, Hemal K. Sheth (for M/s. Lawyer's Knit
and Co.), for Appellant; M.K. Dua and Kishore Rawat, for Respondents.
* CMA No. 844 of 1999, D/-08-08-2006 (AP).
Judgement
2. Whether a financier would be an owner of a motor vehicle within the meaning of
Section 2(30) of the Motor Vehicles Act, 1988 (for short the Act) is the core question
involved herein.
3. Ch. Praveen Kumar, fourth respondent, was the owner of a vehicle being a mini truck
of 'Mahendra Nissan' make purchased by him having been financed by the appellant for a
sum of Rs. 50,000/-. The said loan was discharged by him by the end of 1995.
4. Indisputably the said vehicle had all along been in possession and control of the fourth
respondent herein. It met with an accident on 29th May, 1995. In the said accident one
Degala Balakrishana died. Respondent Nos. 1 and 2 filed an application claiming
compensation alleging rash and negligent driving on the part of the driver of the said
vehicle.
5. On or about 18th June, 1998, the appellant herein was impleaded in the proceeding on
the premises that it was the financier of the said vehicle.
6. The name of the appellant as a financier indisputably was incorporated in the
Registration Book of the vehicle. However, the extract of Registration Book revealed that
the vehicle was registered in the name of the 4th respondent only w.e.f. 3rd June, 1992. It
further revealed that the said vehicle was held under a Hire-Purchase Agreement with the
appellant w.e.f. 6th February, 1995 which was cancelled on 10th November, 1995.
7. Appellant herein filed a written statement stating that on the date of accident the
ownership of the vehicle was solely with the 4th respondent and not with the appellant.
The Motor Vehicle Accident Claims Tribunal by a judgment dated 28th October, 1998
awarded a sum of Rs. 2,08,000/- in favour of the respondent Nos. 1 and 2. The objection
of the appellant that it was not liable to pay any amount of compensation together with
the owner of the vehicle, driver and insurance company was rejected by the Tribunal
stating :-
"In the light of the decisions cited above, the legal position that emerges is that it is the
person who is in actual possession and control of the vehicle, who can be brought under
the definition of owner, under the Act in order to make him tortuously liable for the acts
of the servant and the burden lies upon the party, who asserts it and on their failure
adverse inference can be drawn and the financier can also fastened with liability along
with the registered owner. In our case, R-4 except taking a plea that the vehicle is under
the control of the owner R-2, it failed to file documents to show the nature of the
transaction between it and R-2 and who is in actual control of the vehicle. The mere
@page-SC2494
fact that R.W. 1, widow of the deceased admitted in her evidence that the vehicle belong
to R-2 and it is in his custody, in my view, it cannot absolve R-4 from the burden of
establishing this fact in order to avoid the liability. P.W. 1 a widow and a third party
cannot be attributed with knowledge of control over the vehicle and the actual contract
between the parties. Thus, it is quite evident that R-2 and R-4 did not place any material
to show as to who is in actual control of the vehicle and what are the rights of R-4 over
it."
8. An appeal preferred thereagainst by the appellant herein, by reason of the impugned
judgment, dated 8th August, 2006 has been dismissed.
9. Ms. Bina Madhavan, appearing on behalf of the appellant, would submit :
(1) In terms of Section 168 of the Act a financier cannot be held liable to pay
compensation as the definition of an "owner" as contained in Section 2(30) of the Act
would mean only a "registered owner".
(2) In view of the fact that it was not the case of the claimants that the appellant was in
possession or control over the vehicle at the time of accident, the impugned judgment is
wholly unsustainable.
(3) The finding of the learned Tribunal as also the High Court that appellant as a
registered owner was liable for payment of compensation is wholly unsustainable.
10. Indisputably, as on November 10, 1995 the Hire-Purchase Agreement was cancelled
and an information thereabout was sent to the Deputy Transport Commissioner,
Kakinada.
11. Appellant admittedly was the financier. As the vehicle was the subject-matter of Hire-
Purchase Agreement, the appellant's name was mentioned in the Registration Book.
12. Section 2 of the Act provides for interpretation of various terms enumerated therein.
It starts with the phrase "Unless the context otherwise requires". The definition of
"owner" is a comprehensive one. The interpretation clause itself states that the vehicle
which is the subject-matter of a Hire-Purchase Agreement, the person in possession of
vehicle under that agreement shall be the owner. Thus, the name of financier in the
Registration Certificate would not be decisive for determination as to who was the owner
of the vehicle. We are not unmindful of the fact that ordinarily the person in whose name
the Registration Certificate stands should be presumed to be the owner but such a
presumption can be drawn only in the absence of any other material brought on record or
unless the context otherwise requires.
13. In case of a motor vehicle which is subjected to a Hire-Purchase Agreement, the
financier cannot ordinarily be treated to be the owner. The person who is in possession of
the vehicle, and not the financier being the owner would be liable to pay damages for the
motor accident.
14. Motor Accident Claims Tribunals are constituted in terms of Section 165 of the Act
occurring in Chapter XII thereof. Section 166 lays down the manner in which the
application for compensation should be filed and who can file the same. Section 168
deals with the award of the Claims Tribunal, subsection (1) thereof reads as under :-
"168. Award of the Claims Tribunal. - (1) On receipt of an application for compensation
made under section 166, the Claims Tribunal shall, after giving notice of the application
to the insurer and after giving the parties (including the insurer) an opportunity of being
heard, hold an inquiry into the claim or, as the case may be, each of the claims and,
subject to the provisions of section 162 may make an award determining the amount of
compensation which appears to it to be just and specifying the person or persons to whom
compensation shall be paid and in making the award the Claims Tribunal shall 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 :
Provided that where such application makes a claim for compensation under Section 140
in respect of the death or permanent disablement of any person, such claim and any other
claim (whether made in such application or otherwise) for compensation in respect of
such death or permanent disablement shall be disposed of in accordance with the
provisions of Chapter X."
15. In terms of the aforesaid provisions, the Tribunal is required to issue a notice to the
insurer and after giving the parties, including the insurer, an opportunity of being heard, it
must hold an inquiry into the
@page-SC2495
claims and determine the person who would be liable therefor. It can make an award and
while doing so it can specify the amount which could be paid by the insured or owner or
driver of the vehicle involved in the accident or by all or any of them, as the case may be.
16. An application for payment of compensation is filed before the Tribunal constituted
under Section 165 of the Act for adjudicating upon the claim for compensation in respect
of accident involving the death of, or bodily injury to, persons arising out of the use of
motor vehicles, or damages to any property of a third party so arising, or both. Use of the
motor vehicle is a sine qua non for entertaining a claim for compensation. Ordinarily if
driver of the vehicle would use the same, he remains in possession or control thereof.
Owner of the vehicle, although may not have anything to do with the use of vehicle at the
time of the accident, actually he may be held to be constructively liable as the employer
of the driver. What is, therefore, essential for passing an award is to find out the liabilities
of the persons who are involved in the use of the vehicle or the persons who are
vicariously liable. The insurance company becomes a necessary party to such claims as in
the event the owner of the vehicle is found to be liable, it would have to reimburse the
owner inasmuch as a vehicle is compulsorably insurable so far as a third party is
concerned, as contemplated under Section 147 thereof. Therefore, there cannot be any
doubt whatsoever that the possession or control of a vehicle plays a vital role.
17
. The question came up for consideration before this Court in Rajasthan State Road
Transport Corporation vs. Kailash Nath Kothari and others : (1997) 7 SCC 481, where
the owner of a vehicle rented the bus to Rajasthan State Road Transport Corporation. It
met with an accident. Despite the fact that the driver of the bus was an employee of the
registered owner of the vehicle, it was held :- 1997 AIR SCW 3531, (Para 17)
"Driver of the bus, even though an employee of the owner, was at the relevant time
performing his duties under the order and command of the conductor of RSRTC for
operation of the bus. So far as the passengers of the ill-fated bus are concerned, their
privity of contract was only with the RSRTC to whom they had paid the fare for
travelling in that bus and their safety therefore became the responsibility of the RSRTC
while travelling in the bus. They had no privity of contract with Shri Sanjay Kumar, the
owner of the bus at all. Had it been a case only of transfer of services of the driver and
not of transfer of control of the driver from the owner to RSRTC, the matter may have
been somewhat different. But on facts in this case and in view of Conditions 4 to 7 of the
agreement (supra), the RSRTC must be held to be vicariously liable for the tort
committed by the driver while plying the bus under contract of the RSRTC. The general
proposition of law and the presumption arising therefrom that an employer, that is the
person who has the right to hire and fire the employee, is generally responsible
vicariously for the tort committed by the employee concerned during the course of his
employment and within the scope of his authority, is a rebuttable presumption. If the
original employer is able to establish that when the servant was lent, the effective control
over him was also transferred to the hirer, the original owner can avoid his liability and
the temporary employer or the hirer, as the case may be, must be held vicariously liable
for the tort committed by the employee concerned in the course of his employment while
under the command and control of the hirer notwithstanding the fact that the driver would
continue to be on the payroll of the original owner. The proposition based on the general
principle as noticed above is adequately rebutted in this case not only on the basis of the
evidence led by the parties but also on the basis of Conditions 6 and 7 (supra), which go
to show that the owner had not merely transferred the services of the driver to the RSRTC
but actual control and the driver was to act under the instructions, control and command
of the conductor and other officers of the RSRTC."
18
. The question again came up for consideration recently before this Court in National
Insurance Co. Ltd. vs. Deepa Devi and others : 2007 (14) SCALE 168. This Court in that
case was dealing with a matter where the vehicle in question was requisitioned by the
State Government while holding that the owner of the vehicle would not be liable it was
opined :- 2007 AIR SCW 7882
" 10. Parliament either under the 1939 Act or the 1988 Act did not take into consideration
@page-SC2496
a situation of this nature. No doubt, Respondent Nos. 3 and 4 Page 4561 continued to be
the registered owner of the vehicle despite the fact that the same was requisitioned by the
District Magistrate in exercise of its power conferred upon it under the Representation of
the People Act. A vehicle is requisitioned by a statutory authority, pursuant to the
provisions contained in a statute. The owner of the vehicle cannot refuse to abide by the
order of requisition of the vehicle by the Deputy Commissioner. While the vehicle
remains under requisition, the owner does not exercise any control thereover. The driver
may still be the employee of the owner of the vehicle but he has to drive it as per the
direction of the officer of the State, who is put in-charge thereof. Save and except for
legal ownership, for all intent and purport, the registered owner of the vehicle loses entire
control thereover. He has no say as to whether the vehicle should be driven at a given
point of time or not. He cannot ask the driver not to drive a vehicle on a bad road. He or
the driver could not possibly say that the vehicle would not be driven in the night. The
purpose of requisition is to use the vehicle. For the period the vehicle remains under the
control of the State and/or its officers, the owner is only entitled to payment of
compensation therefore in terms of the Act but he cannot exercise any control thereupon.
In a situation of this nature, this Court must proceed on the presumption that the
Parliament while enacting the 1988 Act did not envisage such a situation. If in a given
situation, the statutory definitions contained in the 1988 Act cannot be given effect to in
letter and spirit, the same should be understood from the common sense point of view."
In so opining the Court followed Kailash Nath Kothari (supra). 1997 AIR SCW 3531
The legal principles as noticed hereinbefore, clearly show that the appellant was not
liable to pay any compensation to the claimants.
19. For the aforementioned reasons, the impugned judgment cannot be sustained. It is set
aside accordingly. The appeal is allowed. No costs.
Appeal allowed.
AIR 2008 SUPREME COURT 2496 "V. A. Shabeer v. P. A. Niamathulla"
(From : Kerala)*
Coram : 2 PRAKASH PRABHAKAR NAOLEKAR AND V. S. SIRPURKAR, JJ.
-2008.
V.A. Shabeer v. P.A. Niamathulla.
(A) Kerala Panchayat Raj Act (13 of 1994), S.42, S.43 - PANCHAYAT - ELECTION -
ELECTION COMMISSION - Election - Power to administer oath and accept nomination
papers - Conferred by Election Commission on Secretary of Block Panchayat - Extension
Officer holding full additional charge of Block Development Officer who has retired and
who was also Secretary of Block Panchayat at relevant period - Can administer oath and
accept nomination papers.
AIR 2007 NOC 2392 (Ker.), Reversed.
Where the Block Development Officer who was also Secretary of Block Panchayat
retired and an Extension Officer was appointed in his place by Notification issued by
District Collector to hold full additional charge of Block Development Officer, he would
be acting as Block Development Officer and Secretary to Block Panchayat and merely
because he was holding additional charge of the BDO, it did not mean that he was not
holding the full charge of the post of BDO. It was, therefore, obvious that he was, during
that period, working as a Secretary of the Block Panchayat. Consequently he would be
empowered to administer oath and accept nomination papers in view of Notification
issued by State Election Commission appointing Secretary to Block Panchayat as
Assistant Returning Officer for that particular block. In such a case, the Secretaries of
each Block were not empowered, under the said notification, in their name. It was only
the incumbent of the office of the Secretary of each Block Panchayat who was
empowered to act as the Assistant Returning Officer. It, therefore, naturally follows that
every incumbent who was working, at the relevant time, as the Secretary of the Block
Panchayat was empowered to act as the Assistant Returning Officer. Moreover, under
Section 42(2) every Returning Officer, subject to the control of the Returning Officer,
would be competent to perform all or
@page-SC2497
any of the functions of the Returning Officer. Thus, by necessary logic he was competent
to perform all or any of the functions of the Returning Officer including subscribing oath
and/or accepting the nomination papers. It was moreso, when the acceptance of
nomination papers of the appellant and the subscription of oath by said Officer to the
appellant was never objected to either by the Returning Officer or by the subsequent
BDO who took the charge of that post. Again all these objections were also not raised at
the time when the scrutiny of the nomination papers was done.
AIR 2007 NOC 2392 (Ker), Reversed. (Paras 14, 15, 22)
It could not also be said in such a case, that the District Election Officer has no authority
to appoint any person as Assistant Returning Officer without the concurrence of the State
Election Commission, when the District Election Officer has not appointed person as
Assistant Returning Officer. It is because of Notification of State Election Commission
that he could ipso facto take the authorization from the State Election Commission to act
as the Assistant Returning Officer. (Para 32)
(B) Kerala Panchayat Raj Act (13 of 1994), S.42(2), S.43 - PANCHAYAT - ELECTION
COMMISSION - COMMISSIONS - Assistant Returning Officer - Performing functions
of the Returning Officer - No authorisation of Returning Officer required for same -
Instruction by State Election Commission to the contrary - Cannot override provision of
Act.
AIR 2007 NOC 2392 (Ker), Reversed.
There is nothing in the language of S. 42(2) showing that any authorisation was required
by Returning Officer for Assistant Returning Officer to perform any function of
Returning Officer. Assistant Returning Officers are to be appointed by the State Election
Commission and not by the Returning Officer. Assistant Returning Officers draw their
powers directly from the State Election Commission. Moreover, the words in Section 43
"any function which he is authorized to perform under sub-section (2) of Section 42" do
not mean to suggest that there has to be an authorization, much less in writing by the
Returning Officer in favour of the Assistant Returning Officer. The words refer only to
the functions which the Assistant Returning Officer 'can' perform or is 'capable' of
performing under sub-section (2) of Sec. 42.
AIR 2007 NOC 2392 (Ker), Reversed. (Paras 17, 18)
In such a case, it could not be said that there were instructions from the State Election
Commission, issued in exercise of powers under Article 243K (1) of the Constitution of
India read with Sections 44 and 48-A of the Act and that the said instructions included
that there has to be a specific authorization of the Returning Officer in favour of the
Assistant Returning Officer. Whatever may be the instructions from the State Election
Commission, they cannot override the provisions of the Act holding that no such specific
authorization was ever necessary. It was moreso, when the said document was produced
for the first time before the Supreme Court after the case was closed and judgment was
reserved. (Para 26)
AIR 1969 SC 1111 (Ref.) 28
C. S. Rajam, Sr. Advocate, A. Raghunath, Advocate with him, for Appellant; Respondent-
in-Person.
* M. F. A. No. 11 of 2007 (B), D/- 18-6-2007 (reported in AIR 2007 NOC 2392 : 2007
(4) Ker LT 195).
Judgement
1 . V. S. SIRPURKAR, J. :-Leave granted.
2. This appeal is directed against the judgment of the learned Single Judge of the Kerala
High Court whereby the learned Single Judge allowed the appeal filed against the order
of the Trial Court and declared the election of the appellant void.
3. The appellant and the respondent were the candidates who contested the election from
Ward No. 2 of Alangad Block Panchayat held on 24th September, 2005. The appellant
was declared elected. The candidate who lost the election (respondent herein) challenged
the election by way of an Election Petition before the Election Tribunal mainly on two
grounds. It was first contended that the officer who accepted the nomination papers of the
appellant had no authority to receive the same and secondly the appellant had not made
or subscribed an oath or affirmation before the Returning Officer or any other person
authorized by the State Election Commission and, therefore, he was not qualified to fill a
seat.
4. The Election Petition was opposed on the ground that the election petition was not
maintainable and that it was filed after the
@page-SC2498
expiry of the period of limitation. It was contended that the appellant had signed the oath
or affirmation according to the form set out for the purpose in the First Schedule of the
Kerala Panchayat Raj Act, 1994 (hereinafter referred to as "the Act") and that the
appellant was fully qualified to contest the election. It was also pointed out that the
nomination papers were filed before the Assistant Returning Officer who was fully
competent to verify the nomination papers and receive the same. Hence there was
absolutely no ground to declare the election as void.
5. The Election Petitioner (respondent herein) examined five witnesses and marked 11
documents while the appellant did not adduce any evidence. The Election Tribunal (2nd
Additional District Judge, Ernakulam) came to the conclusion that the oath or affirmation
of the appellant was made before the Assistant Returning Officer and it did not matter
that the Assistant Returning Officer had no authority. The Trial Court applying "de facto
doctrine" held that oath was before an appropriate authority and as per the Rules. The
Election Tribunal also held that the officer who received the nomination papers was
holding the charge of Block Development Officer and was an Assistant Returning Officer
and as such he was competent to receive the same. The Election Petition was, therefore,
dismissed. The appeal was filed against this order before the High Court on two grounds,
they being :
i) The appellant had not made and subscribed the oath or affirmation before a person
authorized by the State Election Commission and thereby he was not qualified for being
chosen to fill the seat in the Panchayat.
ii) The appellant had not delivered the nomination papers to the Returning Officer or to
the Assistant Returning Officer duly authorized by the Returning Officer who had
authority to receive the same.
6. The High Court came to the conclusion that on both the counts the election was void.
The elected candidate, the appellant herein now comes before us by way of the present
appeal.
7. Shri C. S. Raja, Senior Advocate, appearing on behalf of the appellant, contends before
us that the High Court has committed a grave error in holding that the appellant had not
made and subscribed the oath or affirmation before the Returning Officer or any other
person authorized by State Election Commission and thereby he was not qualified to be
chosen to fill a seat in the Panchayat. Learned counsel also urged that the High Court was
in grave error in holding that the officer before whom the nomination papers were
tendered by the appellant had no authority to receive the same.
8. As against this, the respondent who appeared in person, supported the order of the
High Court relying on the various provisions of the Act. It will be, therefore, for us to
consider as to whether the High Court was right in declaring the election of the appellant
as void.
9. It is an admitted fact that the State Election Commission had appointed Deputy
Director of Fisheries (Zonal) as the Returning Officer for this election. It is also an
admitted position that one Smt. P. C. Mary was working as Block Development Officer,
Alangad and she retired from service on the afternoon of 31.8.2005. There is an order on
record (vide Exhibit X-9) passed by District Collector bearing No. RD. 299/2005 dated
31.8.2005, to the following effect :
"Smt. P. C. Mary, Block Development Officer, Alangad retired from service on the A.N.
of 31.8.2005. She is relieved of her duties as Block Development Officer on the A.N. of
31.8.2005. Shri O.G. Venugopal, Extension Officer (IRD) will hold full additional charge
of the BDO, Alangad till further orders."
Thus it was Shri O.G. Venugopal who was holding the charge for Mrs. P. C. Mary. It was
this Mr. O. G. Venugopal who was holding the additional charge of Block Development
Officer, had accepted the nomination of the appellant and it was before him alone that the
appellant had taken the oath. The High Court has found fault with both the aspects.
10. At this juncture it will be proper to see a few provisions of the Act on which the
parties rely. Section 29 of the Act provides for the qualifications for Membership of a
Panchayat. Section 29(e) is as under :
"29. Qualifications for membership of a Panchayat - A person shall not be qualified for
chosen to fill a seat in a Panchayat at any level unless :
(a) xxx
(b) xxx
@page-SC2499
(c) xxx xxxx
(d) xxx xxx
(e) he makes and subscribes before the returning officer or any other person authorized
by the State Election Commission an path or affirmation according to the form set out for
the purpose in the first schedule."
Sections 40, 41, 42, 43 as are relevant for our purpose read as under :
"40. General duties of district election officer - Subject to the superintendence, direction
and control of the State Election Commission, the district election officer, shall
coordinate and supervise all work, in the district in connection with the conduct of all
elections to the Panchayats in the district.
41. Returning Officers- For every Panchayat, for every election to fill a seat or seats in
the Panchayat, the State Election Commission shall, in consultation with the Government,
designate or nominate one or more returning officer who shall be an officer of the
Government or of a local self-Government Institutions.
Provided that nothing in this section shall prevent the State Election Commission from
designating or nominating the same person to be the returning officer for more than one
Panchayats lying adjacent.
42. Assistant Returning Officers - (1) The State Election Commission may appoint one or
more persons as assistant returning officers to assist any returning officer in the
performance of his functions.
(2) Every assistant returning officer shall, subject to the control of the returning officer,
be competent to perform all or any of the functions of the returning officer.
Provided that no assistant returning officer shall perform any of the functions of the
returning officer which relates to the scrutiny of nominations unless the returning officer
is unavoidably prevented from performing the said function.
43. Returning officer to include assistant returning officers performing the functions of
the returning officer - References in this Act to the returning officer shall, unless the
context otherwise requires, be deemed to include an assistant returning officer performing
any function which he is authorized to perform under sub-section (2) of Section 42."
The contention of the Election Petitioner (respondent herein) was that it was Smt. P. C.
Mary alone who was authorized to accept the nomination papers and also to subscribe the
oath to the appellant and since she had superannuated on 31.8.2005, and was replaced by
Shri O.G. Venugopal, Extension Officer, IRD and since Shri O.G. Venugopal was not
authorized specifically by the State Election Commission or the Returning Officer either
to subscribe the oath or to accept the nomination papers, the appellant in effect had not
taken oath before a properly authorized officer nor had he tendered his nomination papers
before a properly authorised officer.
11. Admittedly, Shri O.G. Venugopal was holding a full additional charge as per the order
of the Collector from 31.8.2008 upto 6.9.2005 when Smt. M.K. Padmavaty took charge
in the forenoon. The High Court seems to have accepted the contention that since Shri
Venugopal was not specifically authorized by the State Election Commission, or even by
Returning Officer, he had no authority to either accept the nomination papers or subscribe
oath to the candidates who were tendering the nomination papers. It cannot be disputed
that every candidate has to subscribe an oath before the Returning Officer or any other
person authorized by the State Election Commission. It has been held by the High Court
that Smt. P. C. Mary was appointed as an Assistant Returning Officer by the State
Election Commission and not by the District Collector. While she was a Block
Development Officer, Shri O.G. Venugopal (PW5) was not even a Block Development
Officer, he was merely discharging the functions of Block Development Officer as a stop
gap arrangement by virtue of an order of District Collector. The High Court also held that
the State Election Commission has not passed any order designating Shri Venugopal
(PW5) as the Assistant Returning Officer. It was on this ground that the High Court found
that Shri Venugopal did not have a proper authorization.
12. The High Court has dealt with Sections 39 to 43 of the Act and ultimately held that
the combined reading of Sections 42 and 43 of the Act would make it clear that a
Returning Officer can authorize the Assistant Returning Officer to perform all or any of
the functions of the Returning Officer except the function of Returning Officer which
relates to the scrutiny of nomination.
@page-SC2500
The High Court further held that there was no material before the court to hold that
Sairabanu (PW2) who was the Returning Officer had authorized Shri O.G. Venugopal to
discharge the function of Returning Officer. The High Court held that only other evidence
relied on by the respondent (appellant herein) was Exhibit X-8, a notification dated
29.8.2005 also could not empower Shri O.G. Venugopal to act as it could not be said as
an authorized by the Returning Officer.
13. Learned counsel for the appellant invited our attention to the notification dated
29.8.2005 issued by the State Election Commission. The notification which is Exhibit X-
8 before the Election Tribunal, reads as under :
"In exercise of the powers conferred under sub-section (1) of Section 42 of the Kerala
Panchayat Raj Act, 1994 (Act 13 of 1994), the State Election Commission hereby
appoints the Secretary of each block panchayat as the Assistant Returning Officer to
assist the Returning Officers notified in Notification No. 192/2005/SEC dated 18th
August, 2005 and 191/2005/SEC, dated 18.8.2005 of the State Election Commission."
Learned counsel also pointed out before us and it was not contradicted that the District
Collector was designated by the State Election Commission as the District Election
Officer. It will be seen from Section 40 that subject to superintendence, direction and
control of the State Election Commission, the District Election Officer is duty-bound to
co-ordinate and supervise all the work in the whole District in connection with the
conduct of all elections to the Panchayat in the District. Therefore, it is obvious that the
Collector, Ernakulam, who was appointed as a District Election Officer was to co-
ordinate and supervise all work.
14. It is also an admitted position that Shri O.G. Venugopal (PW5) was posted in place of
Mrs. P. C. Mary, the erstwhile Block Development Officer and a Secretary of the
concerned Block Panchayat and that at least for that period Shri O.G. Venugopal was
holding full additional charge of the BDO, Alangad Block Panchayat. It is, therefore,
obvious that Shri O.G. Venugopal, who was an Extension Officer during the period from
31.8.2005 upto 6.9.2005, was acting as a Block Development Officer and the Secretary to
the Block Panchayat for all practical purposes. Merely because Shri O.G. Venugopal was
holding additional charge of the BDO, Alangad, it did not mean that he was not holding
the full charge of the post of BDO. It was, therefore, obvious that he was, during that
period, working as a Secretary of the Block Panchayat. This position could not be and
cannot be contradicted. Now, revereting back to the aforementioned notification dated
29.8.2005, it is obvious that the said notification appointed "Secretary of each Block
Panchayat" as the "Assistant Returning Officer" to assist the Returning Officer for that
particular Block.
15. There is also no dispute that Sairabanu (PW2) was the Returning Officer under the
notifications by the State Election Commission dated 18th August, 2005. Once this
position is clear, the very look of the notification suggests that the Secretaries of each
Block were not empowered, under the said notification, in their name. It was only the
incumbent of the office of the Secretary of each Block Panchayat who was empowered to
act as the Assistant Returning Officer. It, therefore, naturally follows that every
incumbent who was working, at the relevant time, as the Secretary of the Block
Panchayat was empowered to act as the Assistant Returning Officer. There is no reason to
hold that Shri O.G. Venugopal was not working as the Secretary to the Block Panchayat,
Alangad. The order, quoted by us, passed by the District Collector who was also the
District Election Officer, specifically provided that Shri O.G. Venugopal was to hold full
additional charge of BDO. Resultantly he was also the Secretary of the Block Panchayat
and was acting as such. Once this position is clear, then it is obvious that he had all the
powers, authority and the responsibilities of an Assistant Re-turning Officer. At this
juncture it will be necessary to note the specific provision under Section 42(2) of the Act
under which every Returning Officer, subject to the control of the Returning Officer,
would be competent to perform all or any of the functions of the Returning Officer. Thus
by necessary logic Shri O.G. Venugopal was competent to perform all or any of the
functions of the Returning Officer including subscribing oath and/or accepting the
nomination papers.
16. The proviso to sub-section (2) of Section 42, however, specifically provides that the
Assistant Returning Officer could not perform any of the functions which relate to the
scrutiny of nominations unless the
@page-SC2501
Returning Officer is unavoidably prevented from performing the said function. This
proviso would mean that in an emergent situation where the Returning Officer is not able
to function by some unforeseen event as a Returning Officer, the Assistant Returning
Officer could also go ahead with the task of scrutinizing the nominations. That, however,
would depend upon, the evidence. In the present case this was not the situation. All that
Shri O.G. Venugopal did was to act as the Assistant Returning Officer owing to his
holding a full charge of the post of the Secretary to the Block Panchayat. It is also an
admitted position and not contradicted before us that every such BDO for a Block
Panchayat acts also as a Secretary to the Block Panchayat. If the language and spirit of
Section 42(2) is realized, then there is no question of holding that Shri O.G. Venugopal
did not have any authority to act as the Assistant Returning Officer.
17. In para 17 of its judgment, the High Court though had noticed Exhibit X-8, curiously
observed that such authorization has to be given by the Returning Officer. We do not see,
in the language of Section 42(2) any authorization by the Returning Officer for an
Assistant Returning Officer to perform any function. Section 42(2) is merely an
empowering section which declares that the Assistant Returning Officer is competent to
perform all or any of the functions of the Returning Officer. However, his functions are
subject to the control of Returning Officer, meaning thereby that he can be prohibited by
the Returning Officer to do a particular function or his actions would be subject to the
rigid control of the Returning Officer. However, in order to clothe him with the
competence to act, he does not require any specific authorisation from the Returning
Officer.
18. Indeed the observations of the High Court in its judgment, more particularly in para
17 are clearly in total derogation of the specific language of Sections 42(1) and 42(2) of
the Act. It is to be noted that Assistant Returning Officers are to be appointed by the State
Election Commission and not by the Returning Officer. The Assistant Returning Officers
draw their powers directly from the State Election Commission. We have already pointed
out that the State Election Commission, in the present case, had empowered all the
Secretaries of the Block Panchayat as the Assistant Returning Officers. It is not necessary
that a Returning Officer should be assisted only by one Assistant Returning Officer.
Therefore, in cases where there are more than one person acting as the Secretaries (which
is unlikely case), all such Assistant Returning Officers could assist the Returning Officer.
The language of sub-section (1) of Section 42 is more than explicit to so suggest. The
High Court demanded some evidence to show that the Assistant Returning Officer of
Ward II, Alangad Block Panchayat was authorized by the Returning Officer to discharge
the functions of Returning Officer. We do not see any such necessity from the language of
Section 42 of the Act. The High Court has probably made the observations owing to the
language of Section 43 of the Act which provides that wherever the Returning Officer is
referred to in the Act, it would be deemed that the reference includes the Assistant
Returning Officer performing any function which he/she is authorized to perform under
sub-section (2) of Section 42. The words in Section 43 "any function which he is
authorized to perform under sub-section (2) of Section 42" do not mean to suggest that
there has to be an authorization, much less in writing by the Returning Officer in favour
of the Assistant Returning Officer. The words refer only to the functions which the
Assistant Returning Officer 'can' perform or is 'capable' of performing under sub-section
(2) of Section 42. We do not see any necessity of specific authorization on behalf of the
Returning Officer in favour of the Assistant Returning Officer. If we read Section 43 of
the Act as rigidly as the High Court has done, then there may be a situation where the
proviso to Section 42 would itself become otiose.
19. It will be seen that under the proviso during the emergent situation where the
Returning Officer is unavoidably prevented to perform the functions of scrutiny of
nominations, the Assistant Returning Officer can go ahead even with that function. Now,
if there arises a situation that on the date fixed in the election programme for scrutiny of
nominations, the Returning Officer meets with an accident and is not able to
communicate anything to the Assistant Returning Officer, under such emergent situation,
the Assistant Returning Officer can and has to go ahead with the task of scrutinizing the
nominations because the scrutiny must be held on that particular date as per the election
@page-SC2502
programme. If we insist on any such so-called written authorization, the whole proviso
would be rendered meaningless. This aspect has completely been missed by the High
Court.
20. We are, therefore, of the clear opinion that Shri O.G. Venugopal who was, at the
relevant time, working as a Secretary to the Block Panchayat and was holding a full
additional charge of the Block Development Officer for Alangad Block Panchayat was
quite competent to subscribe oath to the appellant. He was also quite competent to accept
the nomination papers.
21. It is obvious that Shri Venugopal had to accept the nomination papers and subscribe
oath on the day that he did introduce the oath to the appellant and also accepted his
nomination papers due to the absence of the Returning Officer. It is unthinkable that
during the period when the election programme is on, there would be nobody to accept
the nomination form and also to introduce the oath to a person tendering his nomination
form. Such situation can never be imagined. There could not be a void during the period
when the election programme is on. It is unthinkable that for the Alangad constituency in
the absence of Returning Officer, nobody could accept the nomination form or subscribe
the oath during the period from 31.8.2005 to 6.9.2005. This is also one of the reasons
why we are of the opinion that the judgment of the High Court has become erroneous.
22. Last but not the least, the acceptance of nomination papers of the appellant and the
subscription of oath by Shri Venugopal (PW5) to the appellant was never objected to
either by the Returning Officer or by the subsequent BDO who took the charge of that
post from PW5 on 6.9.2005. Again all these objections were also not raised at the time
when the scrutiny of the nomination papers was done. Offcourse that may not be the only
reason to throw out the election petition but that is certainly an additional factor to be
taken into consideration.
23. Once this position is arrived at, there would be no necessity to even refer to the de
facto doctrine as has been done by the Election Tribunal because we have considered that
Shri Venugopal (PW5) was perfectly competent to accept the nomination papers as also
to subscribe the oath.
24. The High Court in para 18 of its judgment has referred to Exhibit X-2, a notification
and has held that since Shri Venugopal (PW5) could not come in the category of a
Returning Officer, he could not have introduced oath. The observation is patently
incorrect in view of what we have held above relying on Sections 42 and 43.
25. It has also been held that the District Collector was not competent to confer any
powers of Returning Officer or Assistant Returning Officer to PW5. In our opinion this
observation is also not correct in view of the fact that for a limited period between
31.8.2005 to 6.9.2005 Shri Venugopal (PW5) was actually acting as the Secretary to the
Block Panchayat, since he was holding a full additional charge of the Block Panchayat.
His very appointment to that post would clothe him by the powers under the State
Election Commission vide notification Exhibit X-8. The other authorities referred to by
the High Court in its judgment are not apposite to the controversy in question.
26. The respondent herein has tendered arguments in writing after the matter was closed.
We have gone through the said written note of arguments carefully. In paras 1 and 2 again
the same argument is repeated that PW5 did not have a proper authorization from the
Returning Officer. An absurd statement has thereafter been made to the following effect :
"There was only Exhibit X-8(a) endorsement, which is also disputed as it was only the
creation done just before producing it before the court for creating false evidence, of the
Returning Officer which is quoted in para 17 of the impugned judgment."
We are surprised at such a statement being made without any basis, rhyme or reason. This
question of Exhibit X-8(a) being false document was not even raised before the High
Court. It is then expressed in the same paragraph that document Exhibit X-7(a) was got
proved before the trial court which contained the instructions from the State Election
Commission, issued in exercise of powers under Article 243K(1) of the Constitution of
India read with Sections 44 and 48A of the Act and that the said instructions included that
there has to be a specific authorization of the Returning Officer in favour of the Assistant
Returning Officer. Firstly this document was never referred to during the arguments
before us and it is only now, after the case is closed and the judgment
@page-SC2503
reserved that the point is being raised. Further, the said document was never produced
before us by the respondent who chose to argue his case in person. Lastly whatever may
be the instructions from the State Election Commission, they cannot override the
provisions of the Act which we have taken into consideration for holding that no such
specific authorization was ever necessary. The contention is, therefore, rejected.
27. A question has been raised then that the appointment and control of the Secretaries of
the Panchayats are governed by Sections 179 and 180 of the Act. It is, however, not
clarified as to how there is any breach of Sections 179 and 180 of the Act. We have
already explained that the District Collector had empowered PW5, with the full charge of
Smt. P. C. Mary. If, Smt. P. C. Mary was acting as the Secretary of the Block Panchayat
then automatically PW5 would get all those powers by his holding the full charge of Smt.
P. C. Mary. The other contentions raised in paras 4 and 5 of the written arguments have
already been considered and they are nothing but the repetition of the earlier arguments.
Reference to Articles 243F(a) and 191(e) of the Constitution of India is wholly
unnecessary.
28. In para 5 again the question regarding the oath has been raised. There can be no doubt
that taking of the oath is a sine qua non for a proper candidature. Again an absurd
statement is to be found to the following effect :
"If so that will hit directly the mandate of Article 243F, 173(a) and 191(e) of the
Constitution of India read with Section 36(2)(a) of the Representation of the People Act,
1951 read with the decision of the Hon'ble Apex Court in Shaik Abdul Rahman v. Jagat
Ram Aryan [AIR 1969 SC 1111).
The contentions raised in paras 5 (a) and 5(b) on the basis of the reported decision in
Shaik Abdul Rahman (supra) are completely meaningless. Further contentions raised in
para 5(b) are nothing but the repetition of the earlier contentions. It has already been
explained by us earlier that it was not necessary for PW5 to be in the rank of Gazetted
Officer in the State service. The respondent has completely misread Exhibit X-2(a), the
notification issued under Section 29(a) of the Act.
29. It is suggested in para 5(c) that by Exhibit X-9, the District Collector had provided the
full additional charge only of the Block Development Officer, Alangad to PW5 and not
that of the Secretary of Block Panchayat, Alangad. This is a complete misreading of the
notification. What was authorized by the said notification was the full charge of Smt. P.
C. Mary. Once it is an admitted position that the BDOs were acting as the Secretary,
Block Panchayat and more particularly since Smt. P. C. Mary was acting as the Secretary,
PW5 would enjoy the same powers. The contentions raised in para 5(c) has, therefore, to
be rejected.
30. The contentions raised in para 5(d) regarding Section 52 of the Act read with Rule 6
of the Kerala Panchayat Raj (Conduct of Election) Rules, 1995 is totally irrelevant. Some
other contentions have been raised at page 9 of the Note in para 5 which should in fact be
para 6. The contentions are again in respect of the authorization under Section 43 of the
Act and it is apprehended that in the absence of such authorization the election machinery
will break down. We only say that since the Assistant Returning Officer has to act under
the control and supervision of the Returning Officer, the apprehension is not only
unfounded but absurd. We are not prepared to disbelieve in the State machinery.
31. In para 6(a) a further question is raised based on Section 52(1) and Section 55(2)(b)
of the Act and it is suggested that no other person or officer can perform all or any of the
functions of the Returning Officer of conducting the elections. We have already shown
earlier the scope and the powers of the Assistant Returning Officer. The contention has,
therefore, to be rejected.
32. Lastly it is suggested that the District Election Officer has no authority to appoint any
person as Assistant Returning Officer without the concurrence of the State Election
Commission. That may be so. In this case the District Election Officer has not appointed
PW5 as Assistant Returning Officer. It is because of Notification Exhibit X-8(a) that PW5
could ipso facto take the authorization from the State Election Commission to act as the
Assistant Returning Officer. We, therefore, find no merits in the arguments.
33. In view of the above, we allow this appeal, set aside the order of the High Court and
hold that the Election Tribunal was right in upholding the election and dismissing the
@page-SC2504
election petition. Counsel's fee fixed at Rs. 10,000/-.
Appeal allowed.
AIR 2008 SUPREME COURT 2504 "Management, Essorpe Mills Ltd. v. Presiding
Officer, Labour Court"
(From : Madras)*
Management, Essorpe Mills Ltd. v. Presiding Officer, Labour Court and Ors.
(A) Industrial Disputes Act (14 of 1947), S.22 - Industrial Disputes (Central) Rules
(1957), R.71 - INDUSTRIAL DISPUTE - STRIKE AND LOCK-OUT - Notice of strike -
Giving of intimation or copy of notice u/S.22 to Conciliation Officer in Form L - Not
required because there is no dispute at stage of notice u/S.22 - Such notice is to be given
to employer - Form 'L' refers to R.71 and not S.22. (Para 16)
(B) Industrial Disputes Act (14 of 1947), S.22 - INDUSTRIAL DISPUTE - STRIKE
AND LOCK-OUT - WORDS AND PHRASES - Notice of strike - Only ten days' time
between date of strike given and not six weeks time - Notice cannot be treated to be one
u/S.22 - Expression 'such notice' refers to six weeks' advance notice - Earlier illegal strike
is not remedied by subsequent notice as provided in S.22 .
W. A. Nos. 4088 and 4089 of 2003, D/-31-12-2003 (Mad.), Reversed. (Paras 18, 20)
2002 AIR SCW 249 : AIR 2002 SC 643 : 2002 Lab IC 513 (Disting.) 2, 11, 18
P. P. Rao, Sr. Advocate, C. Manohar Gupta, V. Ramasubramanian, Anshuman Ashok,
Purshottam S.T., Ms. Fabin A. K., Ms. Sahar Bakht and Abhishek Gupta, for Appellant;
S. Gurukrishna Kumar, C. K. Chandrasekaran, S. R. Sethia, for Respondents.
* W. A. Nos. 4088 and 4089 of 2003, D/- 31-12-2003 (Mad).
Judgement
1. Dr. ARIJIT PASAYAT, J. :- Challenge in this appeal is to the order passed by a
Division Bench of the Madras High Court dismissing the Writ Appeals filed by the
appellant.
2. Background facts as projected by the appellant are as follows :
Respondents 2 to 23 went on illegal strike from 8.11.1990. Respondent No. 15 and one
S.L. Sundaram who had died in the meantime were the first to strike work in the blow
room resulting in the stoppage of entire operation of the appellant's textile mills. Other
workmen followed. All the 55 workers who resorted to strike were suspended. Even after
their suspension, respondents 2 to 17 remained in the premises causing obstruction. All
the 55 workers were charged for misconduct. Out of them 34 apologized and they were
taken back into service. But subsequently, three more also apologized and they too were
allowed to join duty. The respondents 2 to 23, however, did not relent. On 14.3.1991 the
General Secretary of the Tamil Nadu Panchalai Workers' Union served a strike notice on
the management purportedly under Section 22(1) of the Industrial Disputes Act, 1947 (in
short the 'Act') stating that "strike would commence on or after 24.3.1991" and on 8th and
24th April and 13th May, 1991 the respondents 2 to 23 were dismissed from service after
holding a disciplinary enquiry. Petitions were filed under Section 2-A of the Act for re-
instatement with back wages and continuity of service. The Labour Court by its award
dated 24.1.1994 held that the strike was illegal. However, in purported exercise of powers
under Section 11-A of the Act the Labour Court substituted the punishment of dismissal
by order of discharge and awarded compensation of Rs. 50,000/- to each workman. The
award was challenged by the appellant as well as the workmen before the High Court. On
5.8.2000 a learned Single Judge of the High Court allowed the Writ Petition No. 8389 of
1995 filed by the respondents 2 to 23 on the ground of non-compliance of Section 33 (2)
(b) of the Act and directed re-instatement of the workmen with full back wages and
continuity of service. He took the view that a copy of the strike notice dated 14.3.1991
was sent to the Conciliation Officer and, therefore, conciliation proceedings were pending
on the date of dismissal and since the dismissal was without the approval of the
Conciliation Officer in terms of Section 33 of the Act the same was illegal. Reliance was
placed on a decision of this Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v.
Ram Gopal 2002 AIR SCW 249
@page-SC2505
Sharma (2002 (2) SCC 244). The appellant's Writ Petition No. 10239 of 1999 against the
alteration of punishment was dismissed. On 30.12.2003 by the impugned judgment a
Division Bench of the High Court dismissed the Writ Appeals holding that the judgment
of this Court did not make any distinction between the proceeding pending before the
Conciliation Officer and those pending before an Industrial Tribunal.
3. On 21.2.2004 the Special Leave Petitions were filed and when the matter came up for
hearing on 20.3.2006 after notice, a Bench of this Court suggested certain terms for
amicable settlement as set out in the order of said date. The appellant agreed to the terms
proposed, but the respondents 2 to 23 did not agree.
4. The basic stand of the appellant is as follows :
The High Court failed to appreciate that in the absence of a valid notice of strike in terms
of Section 22(1) there can be no commencement of conciliation proceedings in terms of
Section 20(1) of the Act. Section 22(1) prohibits a strike in a public utility service, in
breach of contract, without giving to the employer advance notice of six weeks. It
prohibits strike (a) within the notice period of six weeks, (b) within 14 days of giving
such notice, (c) before the expiry of the date of strike specified in such a notice, (d)
during the pendency of any conciliation proceedings before a Conciliation Officer and
seven days after the conclusion of such proceedings. The strike notice issued on 14-3-
1991 stating that the strike will commence on or after 24-3-1991 i.e. (just 10 days' notice)
does not satisfy the requirement of advance notice stipulated u/S. 22 (1). Therefore, it is
not a valid notice. Consequently, in the eye of law there was no commencement of
conciliation proceedings as a result of the said notice.
5. On the dates of dismissal of workmen no conciliation proceeding was pending in the
eye of law. Unless a conciliation proceeding was pending at the time of dismissal of
workmen, Section 33 will not be attracted and there is no question of seeking permission
of the Conciliation Officer in such a case.
6. The High Court failed to appreciate that in terms of Section 33-A for not obtaining
permission of the Conciliation Officer under Section 33, the only legal consequence
provided is that the Conciliation Officer shall take the complaint of contravention of the
provisions of Section 33 into account in mediating in and promoting the settlement of
such industrial dispute. Therefore the order of dismissal in any event was not illegal.
There was no complaint made to the Conciliation Officer in this case.
7. The Conciliation officer, unlike the Labour Court or an Industrial Tribunal, has no
power of adjudication. Therefore, he cannot set aside the order of dismissal. The
dismissal remains valid.
8
. Stand of the respondents 2 to 23 on the other hand is that the appellant did not raise the
plea that there was no conciliation proceeding pending at the time of dismissal of the
workmen. It is stated that there was deemed conciliation. Before a learned Single Judge
the primary issue revolved on the question as to whether any notice of conciliation had
been issued by the Conciliation Officer and, therefore, there was pendency of conciliation
proceeding. Learned Single Judge held against the appellant relying on a decision of this
Court in Lokmat Newspapers Pvt. Ltd. vs. Shankarprasad (1999 (6) SCC 275) holding
that once strike notice is issued under Section 22 of the Act, conciliation proceeding is
deemed to have been commenced and no further notice from the Conciliation Officer is
necessary. 1999 AIR SCW 2565
9. The stand that the notice of strike does not meet the requirements of Section 22 of the
Act is also not tenable. Section 22(1)(d) of the Act provides that no person employed in a
public utility service shall go on strike in breach of contract during the pendency of any
conciliation proceedings before the Conciliation Officer and 7 days after the conclusion
of the proceedings. The Conciliation Officer shall hold the conciliation proceedings when
notice under Section 22 of the Act has been given. Under Section 12(3) if a settlement is
arrived at during conciliation proceedings, a report is to be sent by the Conciliation
Officer to the Government together with the settlement. If no settlement is arrived at the
Conciliation Officer has to send the failure report under Section 12(4) of the Act and
Government has to refer the dispute under Section 12(5). Unlike in the case of non public
utility service, the concept of deemed conciliation has been statutorily provided in the
case of public utility service so that workmen did not go on strike
@page-SC2506
during pendency of the conciliation proceedings. When strike notice under Section 22 of
the Act has been given the Conciliation Officer is mandatorily required to hold the
conciliation proceedings under Section 20(1) of the Act.
10. The purpose of providing for deemed conciliation is to prevent dis-location of public
utility service. The object of enacting sub-sections (a) and (b) of Section 22(1) is for the
purpose of ensuring that workers do not rush into strike and give a chance to the
Conciliation Officer to resolve the dispute.
11
. It is therefore clear that there was a deemed conciliation proceeding when the notice
under Section 22 in Form 'O' of the Tamil Nadu Industrial Disputes Rules, 1958 (in short
the 'Rules') has been issued. Several alternatives are provided in Section 22(1) and sub-
clauses (a) to (d) are the alternatives which is clear from the use of the expression "or".
As such the time limit set out in either one of the clauses (a) or (b) would therefore have
to be read disjunctively which is clear from sub-clause (c) which provides that strike shall
not be undertaken "before the expiry of the date of strike specified in any such notice as
aforesaid". It is further submitted that decision in Jaipur Zila's case (supra) has full
application. 2002 AIR SCW 249
12. A few facts which have relevance need to be noted.

The notice was given about the proposed strike after the strike. Undisputedly, the workers
resorted to strike on 8.11.1990. The notice was given on 14.3.1991. Different stages
enumerated by Section 22(1) are as follows :
(i) Advance notice of 6 weeks.
(ii) 14 days given to the employer to consider the notice;
(iii) the workmen giving the notice cannot go on strike before the indicated date of strike;
(iv) Pendency of any conciliation proceedings.
13. In this case no conciliation proceedings were pending under sub-section (4). Sub-
section (4) of Section 22 states that the notice of strike referred to in sub-section (1) has
to be given in such manner as may be prescribed. The Central Rule 71 prescribes the
manner in which the notice has to be given and the notice is in Form 'L'. The notice as
mandated under Section 22 has to be given to the employer.
14. Learned counsel for the respondent relied on Section 20 which deals with
commencement and conclusion of proceedings. According to the High Court the
conciliation proceeding is deemed to have been commenced on the date on which the
notice of strike under Section 22 is received by the Conciliation Officer.
15. The High Court seems to have lost sight of the crucial words "notice of strike or lock
out under Section 22". Section 22 pre-supposes a notice before the workmen resorted to
strike. The notice has to be given to the employer. Sub-section (6) of Section 22 also has
relevance because within a particular time period after receipt of the notice under sub-
section (1) he shall report to the appropriate Government or to such authority as the
Government may prescribe.
16. Stand of the respondents is that simultaneously notice is required to be given to the
Conciliation Officer in Form 'L' and, therefore, Section 20 has full application. This plea
is clearly untenable because Form 'L' refers to Rule 71 and not Section 22. There is
nothing in Section 22 which requires giving of intimation or copy of the notice under
Section 22 to the Conciliation Officer. At the stage of notice under Section 22 there is no
dispute.
17. The date of notice is 14.3.1991 and the proposed strike was on 24.3.1991. Therefore,
on the face of it, it cannot be treated to be a notice as contemplated under Section 22(1)
(a). The notice in question reads as follows :
"By Registered Post
The Strike notice issued by the employees under Rule 59(1)
From :
The General Secretary,
Tamil Nadu Panchalal Workers Union,
39, 11th Cross Road,
Tatabath,
Coimbatore-12
To :
The Management,
Essorpe Mills,
Saravanapatti (Post),
Coimbatore-35.
Sir,
We have decided to strike work at Essorpe Mills, Saravanampatti Post, Coimbatore.
@page-SC2507
Therefore, we are giving advance notice of strike under the provisions of Section 22(1) of
the Industrial Disputes Act, 1947 (Central Act No. 14 of 1947). We would inform you as
per Section 22(1)(c) that the strike will commence on or after 24th March, 1991. We have
enclosed our demands under Rule 29 of the Chennai Industrial Disputes Rules, 1958.
Always in service to the Nation
Sd/- K. Palanichamy,
The General Secretary,
Tamil Nadu Panchalal Workers Union Copy to :
1. Commissioner of Labour, Chennai
2. Addl. Commissioner of Labour, Coimbatore
3. Deputy Commissioner of Labour, Coimbatore
4. Asstt. Commissioner of Labour (Conciliation-2), Coimbatore
5. The Commissioner of Police, Coimbatore
6. The Collector, Coimbatore
7. The Commissioner cum Secretary, Labour and Recruitment Board, Fort. St., George,
Chennai
8. The Inspector of Factories, Coimbatore"
18
. In the notice it is stated that the strike will commence on or after 24.3.1991. Obviously,
six weeks' time before the date of strike was not given. In this case notice is 14.3.1991
and the proposed strike was on or after 24.3.1991. The inevitable conclusion is that the
notice cannot be treated to be one under Section 22. Jaipur Zila's case (supra) has no
application if the notice given is not in accordance with law. If no notice is given to the
employer, the effect of it is that he is not aware of the proceedings. Obviously, the
conciliation proceedings must be one meeting the requirements of law. Here, no notice in
terms of Section 22 of the Act was there. 2002 AIR SCW 249
19. Somewhat unacceptable plea has been taken by the respondents 2 to 23 that in terms
of Section 22(1)(b) after 14 days of giving the notice, the workmen can go on strike. If
this plea is accepted six weeks' time stipulated in Section 22 (1)(a) becomes redundant.
The expression "giving such notice" as appearing in Section 22(1)(b) refers to the notice
under Section 22(1)(a). Obviously, therefore, the workmen cannot go on strike within six
weeks notice in terms of Section 22(1)(a) and 14 days thereafter in terms of Section 22(1)
(b).
20. The expression "such notice" refers to 6 weeks advance notice. Earlier illegal strike is
not remedied by a subsequent strike as provided in Section 22. If such stand is accepted it
will go against the requirement of Section 22 which aims at stalling action for illegal
strike.
21. Above being the position, the judgments of learned Single Judge as well as that of the
Division Bench cannot be sustained and deserve to be set aside which we direct.
Notwithstanding the same the fair approach indicated by the appellant by accepting the
decision of this Court by order dated 20.3.2006 can be given effect to. It is open to
respondents 2 to 23 or any of them to comply with the terms indicated.
22. The appeal is allowed to the extent indicated above. There will be no order as to
costs.
Appeal allowed.
AIR 2008 SUPREME COURT 2507 "Municipal Council, Udaipur v. Mahendra Kumar"
(From : Rajasthan)*
Coram : 2 Dr. A. PASAYAT AND LOKESHWAR SINGH PANTA, JJ.
Civil Appeal No. 2546 with 2547 of 2004, D/- 27 -3 -2008.
Municipal Council, Udaipur v. Mahendra Kumar.
(A) Specific Relief Act (47 of 1963), S.38 - INJUNCTION - Permanent injunction - Suit
by Licensee to restrain licensor from increasing rent of suit shop - License period. had
already expired - Suit is not maintainable.
2006 AIR SCW 1751, Relied on. (Para 15)
(B) Specific Relief Act (47 of 1963), S.38 - Rajasthan Premises (Control of Rent and
Eviction) Act (17 of 1950), S.13(3) - INJUNCTION - HOUSES AND RENTS - Suit for
permanent injunction - By Licensee against Licensor to restrain him from enhancing rent
- Power of enhancement had been provided in license agreement - Restraining it to a one
time exercise by 10% is not proper as clause itself permits issue of orders "from time
@page-SC2508
to time". (Paras 15, 17)
Sushil Kumar Jain, Puneet Jain, Sarad Singhania, Ms. Christi Jain, for Appellant; Arun K.
Sinha, for Respondent.
* S. B. Civil Regular S. A. No. 393 of 1999, D/- 3-8-2000 (Raj)
Judgement
Dr. ARIJIT PASAYAT, J. :- Challenge in these appeals is to the judgment rendered by a
learned Single Judge of the Rajasthan High Court in two second appeals. The appeals
were preferred by the appellant questioning correctness of the conclusions arrived at by
the Courts below.
2. Factual position which is almost undisputed in both the cases needs to be noted in brief
and is as follows :
3. For the sake of convenience the facts situation in Civil Appeal No.2546 of 2004
(Municipal Council, Udaipur v. Mahendra Kumar) is reflected.
4. The respondent as plaintiff filed a suit against the appellant seeking following reliefs :
"a) That a decree for permanent injunction be passed in favour of the plaintiff and against
the defendant to the effect that the defendant should recover rent at the rate of Rs. 175/-
(rupees one hundred seventy five) per month from the plaintiff fixed before coming into
being of the relationship of lessee and lessor between the plaintiff and the defendant and
apart from this not to increase the rent unilaterally, not to recover the late fee, nor recover
the rent by increasing the same, nor get the shops vacated forcibly from the plaintiff, nor
dispossess him from the disputed shops nor create any sort of obstacle in his business,
neither do such acts itself nor through its servants, agents or any officer nor allow them to
do the same."
5. For the purpose of the claim respondent relied on an agreement dated 8.11.1980. The
agreement had been executed describing that it was based on a license and was for a
limited period of 11 months. According to the appellant the license automatically stood
terminated on expiry of the period. Thereafter no time was extended by the defendants.
Plaintiffs claim that the defendants were accepting the rent regularly. By notice dated
6.6.1986 which was challenged in the suit an offer was made to occupy the property on
payment of Rs.6,000/- per year. Stand of the respondent was that he was entitled to
occupy the premises by payment of rent or license fee of Rs.175/- as agreed to in the
agreement dated 8.11.1980 and which stood terminated by time. The Trial Court decreed
the suit. However, the First Appellate Court allowed the appeal to enhance once by 10%
and thereafter to seek the consent of the respondent if there was to be any enhancement.
6. High Court dismissed the second appeal. The order of the High Court is challenged in
this appeal.
7. According to the learned counsel for the appellant-corporation the High Court enlarged
the scope of dispute and went on to decide as to whether the agreement was a license or
lease. It is submitted that property was that of the local authority and, therefore,
Rajasthan Rent and Premises (Control of Rent Eviction) Act, 1950 (in short 'Rent Control
Act') unilaterally does not apply to the facts of the present case. It was pointed out that
the respondent can be evicted from the suit premises by giving notice under Section 106
of the Transfer of Property Act, 1882 (in short 'TP Act') where the lease did not subsist
and the respondent had not occupied or continued the same property. The High Court and
the First Appellate Court erroneously came to the conclusion that the appellant again
increased the rent unilaterally. There was no question of any bilateral agreement for
fixation of new rent as a person occupying property would never agree to enhance and
would continue to remain in the property for any length of time at a rate fixed years back.
The conclusion that it can be enhanced once is without any legal foundation. It was
pointed out that even if it is assumed that the agreement subsists, clauses 3 and 8
permitted the appellant to unilaterally alter the conditions by way of orders which have to
be complied with by the respondent and for a period of 11 months renew for further fresh
term.
8. Learned counsel for the respondent on the other hand submitted that the respondent is
willing to pay at such rate as may be fixed in accordance with law.
9. At the outset has to be noticed that the validity of the notice was not challenged in the
suit. Notice dated 6.6.1986 contained a reference to the order No.F5(293)LB/77/
@page-SC2509
2183-2730 dated 10.8.83 of the Local Self Government which permitted fixing of rent in
a particular manner. According to the learned counsel, the notice for fixing of rent was
based on the aforesaid order of the Local Self Government of the State.
10. It was not the stand of the respondent that the order of the Local Self Government
was not binding and/or that the same was without any authority. Clauses 3 and 8 of the
agreement are also relevant. They read as follows :
"3. That the said agreement shall be deemed to have been executed for eleven months and
for further renewal the licensee shall have to move an application one month before,
which shall be considered by the Council and if found proper further renewal shall be
made. The shop shall be handed over in the same condition in which it has been taken
and shall not make any alterations therein nor shall cause any damage."
8. That apart from the said conditions in connection with this shop the Council shall also
issue other orders from time to time, which shall also be complied with by the licensee."
11. The suit was for permanent injunction, in terms of Section 38 of the Specific Relief
Act, 1963 (for short 'Specific Relief Act'). Section 38 reads as under :
"38. Perpetual injunction when granted. - (1) Subject to the other provisions contained in
or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to
prevent the breach of an obligation existing in his favour, whether expressly or by
implication.
(2) When any such obligation arises from contract, the court shall be guided by the rules
and provisions contained in Chapter II.
(3) xxx xxx xxx
12
. An interesting question arises as to whether in the absence of the subsisting agreement a

decree for specific performance can be granted. There is no dispute that the plaintiff can
seek for performance only an agreement which is subsisting. As was noted by this Court
in Percept D'mark (India) (P) Ltd. v. zaheer Khan and Anr. (2006 (4) SCC 227), the
plaintiff cannot maintain a suit for specific performance after the contract is determined.
In the aforesaid case it was noted as follows : 2006 AIR SCW 1751
"60. We have perused the contract in detail. The terms of the contract were expressly
limited to 3 years from 30.10.2000 to 29.10.2003, unless extended by mutual agreement,
and all obligations and services under the contract were to be performed.
61. Clause 31 (b) was also to operate only during the term i.e. from the conclusion of the
first negotiation period under clause 31(a) on 29.7.2003 till 29.10.2003. This Respondent
1 has scrupulously complied with. So long as clause 31 (b) is read as being operative
during the term of the agreement i.e. during the period from 29.7.2003 till 29.10.2003, it
may be valid and enforceable. However, the moment it is sought to be enforced beyond
the term and expiry of the agreement, it becomes prima facie void, as rightly held by the
Division Bench."
13. It is to be noted that the property being of the local authority the Rent Control Act did
not have any application.
14. The High Court considered the agreement to be a lease overlooking the fact that
under the Rajasthan Municipality Act, 1959 (in short 'Municipal Act') no lease can be
made without following the procedure prescribed under the Rules made hereunder.
15. The controversy can be looked at from another angle. For a period of 11 months there
was no attempt to modify the rent fixed under the contract. On the expiry of the period a
fresh agreement has to be entered into. That has to be on agreed terms. In that view of the
matter the question of enhancement of rent unilaterally does not arise.
16. It is to be noted that even the original agreement in clause 8 permitted the Council to
issue such orders from time to time in relation to the conditions. If the view expressed by
the First Appellate Court and the High Court is accepted then the power to issue orders
from time to time in relation to the conditions becomes redundant. Once there is no
dispute about the power of enhancement, the question of enhancing the rent once by 10%
and thereafter to enhance it on consent of both the parties is clearly without any
foundation.
17. In the circumstances it is to be held that the agreement was for a period of 11 months.
For continuance a fresh agreement was required to be entered into. If no agreement
@page-SC2510
existed between the parties, the question of unilateral possession does not arise. Since the
power of enhancement has been considered on the basis of clause 8, the question of
restraining it to a one-time exercise is clearly without any foundation as the clause itself
permits issue of orders "from time to time". Additionally, in the background of the scope
of Section 38 of the Specific Relief Act, the First Appellate Court and the High Court
were not justified in granting relief to the respondent. In the normal course we would
have left fixation of rent to the authorities considering the long passage of time while
deciding the question of law, we feel interest of justice would be best served if the rent is
enhanced to Rs. 1,000/- from 1.1.2007 and Rs.700/- for the previous three years. The
agreement on the aforesaid terms shall be duly entered into by the parties.
18. The appeals are accordingly disposed of without any order as to costs.
Order accordingly.
AIR 2008 SUPREME COURT 2510 "Vishwanath Dadoba Karale v. Parisa Shantappa
Upadhye"
(From : Bombay)*
-2008.
Vishwanath Dadoba Karale v. Parisa Shantappa Upadhye (deceased by L.Rs.).
Transfer of Property Act (4 of 1882), S.54, S.58(c) - SALE - MORTGAGE -
POSSESSION - Conditional sale or mortgage - Plaintiff's father entering in transaction
with defendant - Deed titled as conditional sale - Market price of land higher than
specified consideration at relevant point of time - Transaction showing that defendant was
to have title in property for period of five years - He was to remain in possession of
property only for said period - Plaintiff was entitled to tender amount not only at expiry
of said period but even prior thereto - On tender of such document defendant was
required to execute deed of conveyance in favour of plaintiff - Terms of sale and
condition of repurchase recorded in one document - Held, transaction was not sale but
was mortgage. (Paras 6, 7, 8, 9, 10)
(2007) 3 Scale 331 (Disting.) 11
2006 AIR SCW 4235 : AIR 2006 SC 2965 : 2006 (5) AIR Kar R 591 : 2007 (1) AIR Jhar
R 34 (Ref.) 11
2006 AIR SCW 4905 : AIR 2006 SC 3359 (Ref.) 11
AIR 1966 SC 902 (Ref.) 10
AIR 1954 SC 345 (Ref.) 11
Shivaji M. Jadhav, for Appellant; Vinay Navare and Ms. Abha R. Sharma, for
Respondents.
* S. A. No. 525 of 2001, D/- 17-8-2006 (Bom).
Judgement
1. Parisa Shantappa Upadhye, the predecessor-in-interest of the respondent, was the
owner of the land. He entered into a transaction with the appellant herein on or about
7.10.1969. The deed was titled as Conditional Sale Deed of immovable property. The
land, in question, was situate in the town of Kolhapur in a market area. A shed was
constructed thereupon. The relevant terms of the said document evidencing the
transaction in question are as under :-
"2. The property described above is sold by me for a period of five years and you are put
into possession thereof. Consideration of Rs. 500/- for the said sale is paid by you to me
and I have received the same and there is no grievance with respect to the said receipt.
3. You are entitled to enjoy the possession of the said property till the said period and get
the property transferred in your name and pay the municipal assessment with respect
thereto.
4. In case the abovesaid amount of Rs. 500/- is repaid to you by the end of the abovesaid
period or prior thereto, you will accept the same and restore the said property in my
possession and execute the sale deed in my favour as per the agreement between us.
5. At the end of the period mentioned hereinabove or also before the expiry of the said
period at any time if we return the sale deed amount of Rs. 500/-, after accepting the said
amount you have to return the possession in our favour and to execute sale deed in our
favour. This is agreed between us."
2. The plaintiff/respondent offered to
@page-SC2511
return the said amount of Rs. 500/- to the appellant/defendant. It was not accepted on the
premise that he had acquired an absolute title thereto. A suit for redemption of mortgage
was filed on or about 24.2.1981. The issue which arose for consideration before the
courts below was as to whether the transaction in question contemplated conditional sale
with an option to purchase or it was a conditional mortgage.
3. The High Court by reason of the impugned judgment upon construction of the said
deed dated 7.10.1969 (Exhibit 40) opined that the transaction constituted a mortgage and
not an out and out sale. Notice was taken of the fact that only one document was
executed.
4. Mr. Shivaji M. Jadhav, learned counsel appearing on behalf of the appellant would
submit that the High Court committed a serious error in passing the impugned judgment
insofar as it failed to take into consideration the concurrent finding of both the learned
Trial Judge as also the first appellate court that the transaction was that of a sale and not a
mortgage. The High Court, it was urged, committed a serious error in reappreciating the
evidence in a second appeal.
5. Mr. Vinay Navare, the learned counsel appearing on behalf of the respondent, on the
other hand, would support the judgment contending that not only that a sale for a fixed
period is not envisaged under the Transfer of Property Act, the amount of loan could have
been returned even before the expiry of a period of five years.
6. An answer to the question as to whether the transaction is a sale or a mortgage not only
would depend upon the language used in the deed, but also the circumstances attending
thereto. The plaintiff in his deposition categorically stated that his father had taken by
way of a loan a sum of Rs. 500/- from the appellants.
7. There are also evidences on record to show that the market price of the land was higher
than Rs. 500/- at the relevant point of time.
8. When an absolute transfer of property is made, it cannot be limited to a period. The
transaction shows that the appellant was to have title in the property for a period of five
years. Appellant was to remain in possession thereof only for the said period.
Plaintiff/respondent was entitled to tender the said amount of Rs. 500/- not only at the
expiry of the said period but even prior thereto. On tender of such document, the
appellant was required to execute a deed of reconveyance in favour of the
plaintiff/respondent.
9. Such a transaction, in our opinion cannot be construed to be a transaction of sale. It
was a mortgage as has rightly been held by the High Court.
A suit for redemption of mortgage, therefore was maintainable. A suit for redemption is
essentially a suit for recovery of possession.
Section 58(c) of the Transfer of Property Act, 1882 reads as under :-
"58 "Mortgage", "mortgagor", "mortgagee", "mortgage-money" and "mortgage-deed"
defined.
(a) *** *** ***
(b) *** *** *** *** ***
(c) Mortgage by conditional sale - Where, the mortgagor ostensibly sells the mortgaged
property -
on condition that on default of payment of the mortgage-money on a certain date the sale
shall become absolute, or
on condition that on such payment being made the sale shall become void, or
on condition that on such payment being made the buyer shall transfer the property to the
seller,
the transaction is called mortgage by conditional sale and the mortgagee a mortgagee by
conditional sale :
Provided that no such transaction shall be deemed to be a mortgage, unless the condition
is embodied in the document which effects or purports to effect the sale."
10. In this case, the terms of the sale and condition of repurchase were recorded in one
document.
The question came up for consideration in P.L. Bapuswami vs. N. Pattay Gounder
[(1966) 2 SCR 918], where this Court laid down the law in the following terms : AIR
1966 SC 902 (Para 6)
"........In the first place, there is the important circumstance that the condition for
repurchase is embodied in the same document. In the second place, there is the significant
fact that the consideration for Ex. B-1 was Rs. 4,000/-, while the real value of the
property was, according to the Munsif
@page-SC2512
and the Subordinate Judge, Rs. 8,000/-. The High Court has dealt with this question and
reached the finding that the value of the property was Rs. 5,500/-, but it is submitted by
Mr. Ganapathi Iyer on behalf of the appellant that the question of valuation was one of
fact and the High Court was not entitled to go into the question in the second appeal. The
criticism of learned Counsel for the appellant is justified and we must proceed on the
basis that the valuation of the property was Rs. 8,000/- and since the consideration for Ex.
B-1 was only Rs. 4,000/- it was a strong circumstance suggesting that the transaction was
a mortgage and not an outright sale. In the third place, there is the circumstance that the
patta was not transferred to the 1st defendant after the execution of Ex. B-1 by Palani
Moopan. It appears that defendant No. 1 did not apply for the transfer of patta and the
patta admittedly continued in the name of Palani Moopan even after the execution of Ex.
B-1. Exhibits A-6 and A-7 are certified copies of thandal extract of patta for the years
1945-54 and they prove this fact. These exhibits also show that the plaintiff had obtained
patta for the land on the basis of Ex. A-2. The registered deed of transfer of patta was
executed by the sons of Palani Moopan in favour of the plaintiff. There is also the
circumstance that the kist for the land was continued to be paid by Palani Moopan and
after his death, by the sons of Palani Moopan. Lastly, there is the important circumstance
that the consideration for reconveyance was Rs. 4,000/-, the same amount as the
consideration for Ex. B-1. Having regard to the language of the document, Ex. B-1 and
examining it in the light of these circumstances we are of the opinion that the transaction
under Ex. B-1 was mortgage by conditional sale and the view taken by the High Court
with regard to the legal effect of the transaction must be reversed..........."
11
. This Court in Bishwanath Prasad Singh vs. Rajendra Prasad and another [(2006) 4 SCC
432] noticing Pandit Chunchun Jha v. Sk. Ebadat Ali [(1955) 1 SCR 174] and several
other decisions, opined that although the deed was termed as "valbulwafa", but therein
the transfer was complete and not partial. 2006 AIR SCW 4235
AIR 1954 SC 345
However, in Tulsi and others vs. Chandrika Prasad and others [(2006) 8 SCC 322]
distinguishing Bishwanath Prasad Singh (supra), it was held : 2006 AIR SCW 4905
(Paras 14 to 17)
"14. Before we consider the stipulations contained in the deed dated 30-12-1968, it may
be noticed that in terms of Section 58(c) of the Transfer of Property Act, a transaction
may be held to be a mortgage with conditional sale if it is evidenced by one document.
The condition precedent for arriving at a finding that the transaction involves mortgage
by way of conditional sale is that there must be an ostensible sale. It must contain a
condition that on default of payment of mortgage money on a certain date, the sale shall
become absolute or on condition that on such payment being made the sale shall become
void, or on condition that on such payment being made the buyer shall transfer the
property to the seller.
15. A distinction exists between a mortgage by way of conditional sale and a sale with
condition of purchase. In the former the debt subsists and a right to redeem remains with
the debtor but in case of the latter the transaction does not evidence an arrangement of
lending and borrowing and, thus, right to redeem is not reserved thereby.
16. The proviso appended to Section 58(c) of the Transfer of Property Act was added by
Act 20 of 1929 for resolution of the conflict in decisions on the question whether the
condition relating to reconveyance contained in a separate document could be taken into
consideration in finding out whether a mortgage was intended to be created by the
principal deed.
17. The transaction in this case has been evidenced by one document. Section 58(c) of the
Transfer of Property Act will, therefore, apply."
Recently in Manjabai Krishna Patil (D) by L.Rs. vs. Raghunath Revaji Patil and Anr.
[2007 (3) SCALE 331], it was held :
"12. Proviso appended to Section 58(c) is clear and unambiguous. A legal fiction is
created thereby that the transaction shall not be held to be a mortgage by conditional sale,
unless a condition is embodied in the document which effects or purports to effect the
sale. Where two documents are executed, the transaction in question would not amount to
a mortgage by way of conditional sale. In a case of this nature, ordinarily the same would
be considered to be a deed of sale coupled with an agreement of reconveyance."
@page-SC2513
In the facts of that case, however, it was held that no relationship of debtor and creditor
came in existence and no security was created and in fact conveyance of the title of the
property by the respondent to the appellant was final and absolute.
12
. Strong reliance, however, has been placed by Mr. Jadhav on Tamboli Ramanlal Motilal
(Dead) by LRs. vs. Ghanchi Chimanlal Keshavlal (Dead) by LRs. and Another [1993
Supp (1) SCC 295). 1992 AIR SCW 1170
The said decision cannot be said to have any application in the instant case. Therein an
absolute title was conveyed. It was in the aforementioned fact-situation, this Court held :
"21. The last important clause is after the period of five years the transferee will have a
right to get the municipal record mutated in his name and pay tax. Thereafter, the
transferee will have an absolute right to mortgage, sell, or gift the suit property. Neither
executant nor any one else could dispute the title. All the above clauses are clearly
consistent with the express intention of making the transaction a conditional sale with an
option to repurchase. Ex. 39 was pressed into service. But we do not think much
assistance can be derived by the appellant. That only shows there were dealings between
the parties. Further, it also contains account relating to betel leaves. That has nothing to
do with the suit transaction."
Therein also this Court observed :
"16.........Having regard to the nice distinctions between a mortgage by conditional sale
and a sale with an option to repurchase, one should be guided by the terms of the
document alone without much help from the case law. Of course, cases could be referred
for the purposes of interpreting a particular clause to gather the intention. Then again, it is
also settled law that nomenclature of the document is hardly conclusive and much
importance cannot be attached to the nomenclature alone since it is the real intention
which requires to be gathered. It is from this angle we propose to analyse the document.
No doubt the document is styled as a deed of conditional sale, but as we have just
observed, that is not conclusive of the matter."
Having regard to the terms of the transaction, we are of the opinion that the High Court
was correct in its opinion that the transaction evidenced a mortgage and not a sale.
13. For the reasons aforementioned, there is no merit in this appeal which is dismissed
with costs. Counsel's fee assessed at Rs. 10,000/-.
Appeal dismissed.
AIR 2008 SUPREME COURT 2513 "Dev Dutt v. Union of India"
(From : Gauhati)
Dev Dutt v. Union of India and Ors.
(A) Constitution of India, Art.16 - EQUALITY IN PUBLIC EMPLOYMENT - Annual
Confidential Report (ACR) - Entry made in - Communication - Not to be of adverse entry
only - Every entry needs to be communicated - Rule not to apply to armed services.
W. A. No. 447 of 2001, D/-26-11-2001 (Gau.), Reversed.
Fairness and transparency in public administration requires that all entries whether poor,
fair, average, good or very good in the Annual Confidential Report of a public servant,
whether in civil, judicial, police or any other State service must be communicated to him
within a reasonable period so that he can make a representation for its upgradation. The
rule will not apply to military officers because the position for them is different will apply
to employees of statutory authorities, public sector corporations and other
instrumentalities of the State. (Paras 9, 39, 41)
Nomenclature of the entry is not relevant, it is the effect which the entry is having which
determines whether it is an adverse entry or not. It is thus the rigours of the entry which is
important, not the phraseology. The grant of a 'good' entry is of no satisfaction to the
incumbent if it in fact makes him ineligible for promotion or has an adverse effect on his
chances. Communication of entries and giving opportunity to represent against them is
particularly important on higher posts which are in a pyramedical structure where often
the principle of elimination is followed in selection for promotion, and even a single
entry can destroy the career of an officer which has otherwise been
@page-SC2514
outstanding throughout. This often results in grave injustice and heart-burning, and may
shatter the morale of many good officers who are superseded due to this arbitrariness,
while officers of inferior merit may be promoted. (Paras 10, 24)
The Office Memorandum 21011/4/87 (Estt. 'A') issued by the Ministry of
Personnel/Public Grievance and Pensions dated 10/11-9-1987, if it is interpreted to mean
that only adverse entries are to be communicated to the concerned employee and not
other entries, would be arbitrary and hence illegal being violative of Art. 14. All similar
Rules/Govt. Orders/Office Memoranda, in respect of all services under the State, whether
civil, judicial, police or other service except the military, will hence also be illegal and
therefore liable to be ignored. (Paras 12, 39)
In the instant case the bench-mark laid down by the authorities for promotion to the post
of Superintending Engineer was that the candidate should have 'very good' entry for the
last five years. The appellant had one 'good' entry in one of the years. He was therefore
refused promotion. The 'good' entry was not communicated thus denying him an
opportunity to make representation for upgradation of entry. The Court directed that the
'good' entry be communicated to the appellant within a period of two months. If on
representation made by appellant his entry is upgraded the appellant shall be considered
for promotion retrospectively by the Departmental Promotion Committee. Since the
appellant has retired he will get the benefit of higher pension and the balance of arrears of
pay along with 8% per annum interest.
W. A. No. 447 of 2001, D/-26-11-2001 (Gau.), Reversed. (Paras 47, 48)
(B) Constitution of India, Art.14 - EQUALITY - NATURAL JUSTICE - PRINCIPLES -
Natural justice - Rules of, are flexible - Have an expanding content and is not stagnant - It
is, therefore, open to Court to develop new principles of natural justice in appropriate
cases. (Paras 34, 38)
2007 AIR SCW 474 : AIR 2007 SC 777 (Ref.) 44
2005 AIR SCW 2005 : AIR 2005 SC 2090 (Ref.) 42
2005 AIR SCW 6113 : 2006 Lab IC 150 : 2006 (1) ALJ 485 (Rel. on.) 41
2004 AIR SCW 5457 : AIR 2004 SC 4778 (Ref.) 21
(1999) 1 SCC 529 (Disting.) 8
1997 AIR SCW 1951 : AIR 1997 SC 3671 : 1997 All LJ 1166 (Rel. on.) 13
1996 AIR SCW 1729 : AIR 1996 SC 1661 : 1996 All LJ 746 (Expln.) 21, 22
AIR 1990 SC 1984 : 1990 Cri LJ 2148 (Ref.) 37
AIR 1988 SC 686 : 1988 Lab IC 1497 (Ref.) 31, 37
AIR 1988 SC 2060 : 1989 Lab IC 45 (Disting.) 8
AIR 1985 SC 1416 : 1985 Lab IC 1393 (Ref.) 34
AIR 1981 SC 818 (Ref.) 35
AIR 1978 SC 597 (Ref.) 13, 19, 21, 23, 37
AIR 1978 SC 851 (Ref.) 35
(1978) 1 Ch 201 : (1978) 3 All ER 280 34
AIR 1970 SC 150 (Ref.) 29, 37
(1949) 1 All ER 109 : 65 TLR 225 33
1943 AC 627 : (1943) 2 All ER 337 43
(1914) 1 KB 160 : 83 LJ KB 86 43
(1885) 55 LJQB 39 : 2 TLR 122 27
M.T. George, for Appellant; Ashok Bhan, Ms. Rekha Pandey, D. S. Mahra and Anil
Katiyar, for Respondents.
Judgement
MARKANDEY KATJU, J. :- This appeal by special leave has been filed against the
impugned judgment of the Gauhati High Court dated 26.11.2001 in Writ Appeal No. 447
of 2001. By the aforesaid judgment the Division Bench of the Gauhati High Court
dismissed the Writ Appeal of the appellant filed against the judgment of the Learned
Single Judge dated 21.8.2001.
3. The appellant was in the service of the Border Roads Engineering Service which is
governed by the Border Roads Engineering Service Group 'A' Rules, as amended. As per
these rules, since the appellant was promoted as Executive Engineer on 22.2.1988, he
was eligible to be considered for promotion to the post of Superintending Engineer on
completion of 5 years on the grade of Executive Engineer, which he completed on
21.2.1993. Accordingly the name of the appellant
@page-SC2515
was included in the list of candidates eligible for promotion.
4. The Departmental Promotion Committee (DPC) held its meeting on 16.12.1994. In that
meeting the appellant was not held to be eligible for promotion, but his juniors were
selected and promoted to the rank of Superintending Engineer. Hence the appellant filed a
Writ Petition before the Gauhati High Court which was dismissed and his appeal before
the Division Bench also failed. Aggrieved, this appeal has been filed by special leave
before this Court.
5. The stand of the respondent was that according to para 6.3(ii) of the guidelines for
promotion of departmental candidates which was issued by the Government of India,
Ministry of Public Grievances and Pension, vide Office Memorandum dated 10.4.1989,
for promotion to all posts which are in the pay scale of Rs. 3700-5000/- and above, the
bench mark grade should be 'very good' for the last five years before the D.P.C. In other
words, only those candidates who had 'very good' entries in their Annual Confidential
Reports (ACRs) for the last five years would be considered for promotion. The post of
Superintending Engineer carries the pay scale of Rs. 3700-5000/- and since the appellant
did not have 'very good' entry but only 'good' entry for the year 1993-94, he was not
considered for promotion to the post of Superintending Engineer.
6. The grievance of the appellant was that he was not communicated the 'good' entry for
the year 1993-94. He submitted that had he been communicated that entry he would have
had an opportunity of making a representation for upgrading that entry from 'good' to
'very good', and if that representation was allowed he would have also become eligible
for promotion. Hence he submits that the rules of natural justice have been violated.
7. In reply, learned counsel for the respondent submitted that a 'good' entry is not an
adverse entry and it is only an adverse entry which has to be communicated to an
employee. Hence he submitted that there was no illegality in not communicating the
'good' entry to the appellant.
8
. Learned counsel for the respondent relied on a decision of this Court in Vijay Kumar vs.
State of Maharashtra and Ors., 1988 (Supp) SCC 674, in which it was held that an un-
communicated adverse report should not form the foundation to deny the benefits to a
Government servant when similar benefits are extended to his juniors. He also relied
upon a decision of this Court in State of Gujarat and Anr. vs. Suryakant Chunilal Shah,
1999 (1) SCC 529, in which it was held : AIR 1988 SC 2060
"Purpose of adverse entries is primarily to forewarn the Government servant to mend his
ways and to improve his performance. That is why, it is required to communicate the
adverse entries so that the Government servant to whom the adverse entry is given, may
have either opportunity to explain his conduct so as to show that the adverse entry was
wholly uncalled for, or to silently brood over the matter and on being convinced that his
previous conduct justified such an entry, to improve his performance".
On the strength of the above decisions learned counsel for the respondent submitted that
only an adverse entry needs to be communicated to an employee.
9. We do not agree. In our opinion every entry must be communicated to the employee
concerned, so that he may have an opportunity of making a representation against it if he
is aggrieved.
10. In the present case the bench-mark (i.e. the essential requirement) laid down by the
authorities for promotion to the post of Superintending Engineer was that the candidate
should have 'very good' entry for the last five years. Thus in this situation the 'good' entry
in fact is an adverse entry because it eliminates the candidate from being considered for
promotion. Thus, nomenclature is not relevant, it is the effect which the entry is having
which determines whether it is an adverse entry or not. It is thus the rigours of the entry
which is important, not the phraseology. The grant of a 'good' entry is of no satisfaction to
the incumbent if it in fact makes him ineligible for promotion or has an adverse effect on
his chances.
11. Hence, in our opinion, the 'good' entry should have been communicated to the
appellant so as to enable him to make a representation praying that the said entry for the
year 1993-94 should be upgraded from 'good' to 'very good'. Of course, after considering
such a representation it was open to the authority concerned to reject the representation
and confirm the 'good' entry (though of course in a fair manner), but at
@page-SC2516
least an opportunity of making such a representation should have been given to the
appellant, and that would only have been possible had the appellant been communicated
the 'good' entry, which was not done in this case. Hence, we are of the opinion that the
non-communication of the 'good' entry was arbitrary and hence illegal, and the decisions
relied upon by the learned counsel for the respondent are distinguishable.
12. Learned counsel for the respondent submitted that under the Office Memorandum
21011/4/87 [Estt.'A'] issued by the Ministry of Personnel/Public Grievance and Pensions
dated 10/11.09.1987, only an adverse entry is to be communicated to the concerned
employee. It is well settled that no rule or government instruction can violate Article 14
or any other provision of the Constitution, as the Constitution is the highest law of the
land. The aforesaid Office Memorandum, if it is interpreted to mean that only adverse
entries are to be communicated to the concerned employee and not other entries, would in
our opinion become arbitrary and hence illegal being violative of Article 14. All similar
Rules/Government Orders/Office Memoranda, in respect of all services under the State,
whether civil, judicial, police, or other service (except the military), will hence also be
illegal and are therefore liable to be ignored.
13
. It has been held in Maneka Gandhi vs. Union of India and Anr., AIR 1978 SC 597 that
arbitrariness violates Article 14 of the Constitution. In our opinion, the non-
communication of an entry in the A.C.R. of a public servant is arbitrary because it
deprives the concerned employee from making a representation against it and praying for
its up gradation. In our opinion, every entry in the Annual Confidential Report of every
employee under the State, whether he is in civil, judicial, police or other service (except
the military) must be communicated to him, so as to enable him to make a representation
against it, because non-communication deprives the employee of the opportunity of
making a representation against it which may affect his chances of being promoted (or
get some other benefits). Moreover, the object of writing the confidential report and
making entries in them is to give an opportunity to a public servant to improve his
performance, vide State of U.P. vs. Yamuna Shankar Misra 1997 (4) SCC 7. Hence such
non-communication is, in our opinion, arbitrary and hence violative of Article 14 of the
Constitution. 1997 AIR SCW 1951
14. In our opinion, every entry (and not merely a poor or adverse entry) relating to an
employee under the State or an instrumentality of the State, whether in civil, judicial,
police or other service (except the military) must be communicated to him, within a
reasonable period, and it makes no difference whether there is a bench-mark or not. Even
if there is no bench mark, noncommunication of an entry may adversely affect the
employee's chances of promotion (or getting some other benefit), because when
comparative merit is being considered for promotion (or some other benefit) a person
having a 'good' or 'average' or 'fair' entry certainly has less chances of being selected than
a person having a 'very good' or 'outstanding' entry.
15. In most services there is a gradation of entries, which is usually as follows :
(i) Outstanding
(ii) Very Good
(iii) Good
(iv) Average
(v) Fair
(vi) Poor.
A person getting any of the entries at items (ii) to (vi) should be communicated the entry
so that he has an opportunity of making a representation praying for its upgradation, and
such a representation must be decided fairly and within a reasonable period by the
concerned authority.
16. If we hold that only 'poor' entry is to be communicated, the consequences may be that
persons getting 'fair', 'average', 'good' or 'very good' entries will not be able to represent
for its upgradation, and this may subsequently adversely affect their chances of
promotion (or get some other benefit).
17. In our opinion if the Office Memorandum dated 10/11.09.1987, is interpreted to mean
that only adverse entries (i.e. 'poor' entry) need to be communicated and not 'fair',
'average' or 'good' entries, it would become arbitrary (and hence illegal) since it may
adversely affect the incumbent's chances of promotion, or get some other
@page-SC2517
benefit.
18. For example, if the bench-mark is that an incumbent must have 'very good' entries in
the last five years, then if he has 'very good' (or even 'outstanding') entries for four years,
a 'good' entry for only one year may yet make him ineligible for promotion. This 'good'
entry may be due to the personal pique of his superior, or because the superior asked him
to do something wrong which the incumbent refused, or because the incumbent refused to
do sycophancy of his superior, or because of caste or communal prejudice, or for some
other extraneous consideration.
19
. In our opinion, every entry in the A.C.R. of a public servant must be communicated to
him within a reasonable period, whether it is a poor, fair, average, good or very good
entry. This is because non-communication of such an entry may adversely affect the
employee in two ways : (1) Had the entry been communicated to him he would know
about the assessment of his work and conduct by his superiors, which would enable him
to improve his work in future (2) He would have an opportunity of making a
representation against the entry if he feels it is unjustified, and pray for its upgradation.
Hence non-communication of an entry is arbitrary, and it has been held by the
Constitution Bench decision of this Court in Maneka Gandhi vs. Union of India (supra)
that arbitrariness violates Article 14 of the Constitution. AIR 1978 SC 597
20. Thus it is not only when there is a bench-mark but in all cases that an entry (whether
it is poor, fair, average, good or very good) must be communicated to a public servant,
otherwise there is violation of the principle of fairness, which is the soul of natural
justice. Even an outstanding entry should be communicated since that would boost the
morale of the employee and make him work harder.
21
. Learned counsel for the respondent has relied on the decision of this Court in U. P. Jal
Nigam vs. Prabhat Chandra Jain AIR 1996 SC 1661. We have perused the said decision,
which is cryptic and does not go into details. Moreover it has not noticed the Constitution
Bench decision of this Court in Maneka Gandhi vs. Union of India (supra) which has held
that all State action must be non-arbitrary, otherwise Article 14 of the Constitution will be
violated. In our opinion the decision in U.P. Jal Nigam (supra) cannot be said to have laid
down any legal principle that entries need not be communicated. As observed in Bharat
Petroleum Corporation Ltd. vs. N.R. Vairamani AIR 2004 SC 4778 (vide para 9) : 1996
AIR SCW 1729
AIR 1978 SC 597
2004 AIR SCW 5457
"Observations of Courts are neither to be read as Euclid's Theorems nor as provisions of

the statute, and that too, taken out of their context".
22. In U.P. Jal Nigam's case (supra) there is only a stray observation "if the graded entry
is of going a step down, like falling from 'very good' to 'good' that may not ordinarily be
an adverse entry since both are a positive grading". There is no discussion about the
question whether such 'good' grading can also have serious adverse consequences as it
may virtually eliminate the chances of promotion of the incumbent if there is a bench-
mark requiring 'very good' entry. And even when there is no benchmark, such
downgrading can have serious adverse effect on an incumbent's chances of promotion
where comparative merit of several candidates is considered.
23
. Learned counsel for the respondent also relied upon the decision of this Court in Union
of India and Ann vs. S. K. Goel and Ors., AIR 2007 SC 1199 and on the strength of the
same submitted that only an adverse entry need be communicated to the incumbent. The
aforesaid decision is a 2-Judge Bench decision and hence cannot prevail over the 7-Judge
Constitution Bench decision of this Court in Maneka Gandhi vs. Union of India (supra) in
which it has been held that arbitrariness violates Article 14 of the Constitution. Since the
aforesaid decision in Union of India vs. S.K. Goel (supra) has not considered the
aforesaid Constitution Bench decision in Maneka Gandhi's case (supra), it cannot be said
to have laid down the correct law. Moreover, this decision also cannot be treated as a
Euclid's formula since there is no detailed discussion in it about the adverse consequences
of non-communication of the entry, and the consequential denial of making a
representation against it. 2007 AIR SCW 1235
AIR 1978 SC 597
24. It may be mentioned that communication of entries and giving opportunity to

@page-SC2518
represent against them is particularly important on higher posts which are in a
pyramidical structure where often the principle of elimination is followed in selection for
promotion, and even a single entry can destroy the career of an officer which has
otherwise been outstanding throughout. This often results in grave injustice and
heartburning, and may shatter the morale of many good officers who are superseded due
to this arbitrariness, while officers of inferior merit may be promoted.
25. In the present case, the action of the respondents in not communicating the 'good'
entry for the year 1993-94 to the appellant is in our opinion arbitrary and violative of
natural justice, because in substance the 'good' entry operates as an adverse entry (for the
reason given above).
26. What is natural justice? The rules of natural justice are not codified nor are they
unvarying in all situations, rather they are flexible. They may, however, be summarized in
one word : fairness. In other words, what they require is fairness by the authority
concerned. Of course, what is fair would depend on the situation and the context.
27. Lord Esher M.R. in Voinet vs. Barrett (1885) 55 L.J. QB 39, observed : "Natural
justice is the natural sense of what is right and wrong."
28. In our opinion, our natural sense of what is right and wrong tells us that it was wrong
on the part of the respondent in not communicating the 'good' entry to the appellant since
he was thereby deprived of the right to make a representation against it, which if allowed
would have entitled him to be considered for promotion to the post of Superintending
Engineer. One may not have the right to promotion, but one has the right to be considered
for promotion, and this right of the appellant was violated in the present case.
29. A large number of decisions of this Court have discussed the principles of natural
justice and it is not necessary for us to go into all of them here. However, we may
consider a few.
30
. Thus, in A. K. Kraipak and Ors. vs. Union of India and Ors., AIR 1970 SC 150, a
Constitution Bench of this Court held : Para 20 of AIR
"The concept of natural justice has undergone a great deal of change in recent years. In
the past it was thought that it included just two rules, namely (1) no one shall be a judge
in his own cause (Nemo debet esse judex propria causa), and (2) no decision shall be
given against a party without affording him a reasonable hearing (audi alteram partem).
Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries
must be held in good faith, without bias and not arbitrarily or unreasonably. But in the
course of years many more subsidiary rules came to be added to the rules of natural
justice".
(Emphasis supplied)
31. The aforesaid decision was followed by this Court in K. I. Shephard and Ors. vs.
Union of India and Ors., AIR 1988 SC 686 (vide paras 12-15). It was held in this decision
that even administrative acts have to be in accordance with natural justice if they have
civil consequences. It was also held that natural justice has various facets and acting
fairly is one of them.
32
. In Kumaon Mandal Vikas Nigam Ltd. vs. Girja Shankar Pant, AIR 2001 SC 24, this
Court held (vide para 2) : 2000 AIR SCW 3826
The doctrine (natural justice) is now termed as a synonym of fairness in the concept of
justice and stands as the most accepted methodology of a governmental action".
(Emphasis supplied)
33. In the same decision it was also held following the decision of Tucker, LJ in Russell
vs. Duke of Norfolk, (1949) 1 All ER 109:
"The requirement of natural justice must depend on the circumstances of the case, the
nature of the enquiry, the rules under which the tribunal is acting, the subject-matter that
is being dealt with, and so forth".
34. In Union of India etc. vs. Tulsiram Patel etc., AIR 1985 SC 1416 (vide para 97) a
Constitution Bench of this Court referred to with approval the following observations of
Ormond, L.J. in Norwest Holst Ltd. vs. Secretary of State for Trade, (1978) 1, Ch. 201 :
"The House of Lords and this court have repeatedly emphasized that the ordinary
principles of natural justice must be kept flexible and must be adapted to the
circumstances prevailing in any particular case".
(Emphasis supplied)
Thus, it is well settled that the rules of natural
@page-SC2519
justice are flexible. The question to be asked in every case to determine whether the rules
of natural justice have been violated is : have the authorities acted fairly?
35. In Swadeshi Cotton Mills etc. vs. Union of India etc. AIR 1981 SC 818, this Court
following the decision in Mohinder Singh Gill and Anr. vs. The Chief Election
Commissioner and Ors., AIR 1978 SC 851 held that the soul of the rule (natural justice)
is fair play in action.
36. In our opinion, fair play required that the respondent should have communicated the
'good' entry of 1993-94 to the appellant so that he could have an opportunity of making a
representation praying for upgrading the same so that he could be eligible for promotion.
Non-communication of the said entry, in our opinion, was hence unfair on the part of the
respondent and hence violative of natural justice.
37. Originally there were said to be only two principles of natural justice :
(1) the rule against bias and (2) the right to be heard (audi alteram partem).
However, subsequently, as noted in A.K. Kraipak's case (supra) and K.L. Shephard's case
(supra), some more rules came to be added to the rules of natural justice, e.g. the
requirement to give reasons vide S.N. Mukherji vs. Union of India, AIR 1990 SC 1984.
In Maneka Gandhi vs. Union of India (supra) (vide paragraphs 56 to 61) it was held that
natural justice is part of Article 14 of the Constitution. AIR 1970 SC 450
AIR 1988 SC 686
AIR 1978 SC 597
38. Thus natural justice has an expanding content and is not stagnant. It is therefore open
to the Court to develop new principles of natural justice in appropriate cases.
39. In the present case, we are developing the principles of natural justice by holding that
fairness and transparency in public administration requires that all entries (whether poor,
fair, average, good or very good) in the Annual Confidential Report of a public servant,
whether in civil, judicial, police or any other State service (except the military), must be
communicated to him within a reasonable period so that he can make a representation for
its upgradation. This in our opinion is the correct legal position even though there may be
no Rule/G.O. requiring communication of the entry, or even if there is a Rule/G.O.
prohibiting it, because the principle of non-arbitrariness in State action as envisaged by
Article 14 of the Constitution in our opinion requires such communication. Article 14 will
override all rules or government orders.
40. We further hold that when the entry is communicated to him the public servant should
have a right to make a representation against the entry to the concerned authority, and the
concerned authority must decide the representation in a fair manner and within a
reasonable period. We also hold that the representation must be decided by an authority
higher than the one who gave the entry, otherwise the likelihood is that the representation
will be summarily rejected without adequate consideration as it would be an appeal from
Caesar to Caesar. All this would be conducive to fairness and transparency in public
administration, and would result in fairness to public servants. The State must be a model
employer, and must act fairly towards its employees. Only then would good governance
be possible.
41
. We, however, make it clear that the above directions will not apply to military officers
because the position for them is different as clarified by this Court in Union of India vs.
Major Bahadur Singh, 2006 (1) SCC 368. But they will apply to employees of statutory
authorities, public sector corporations and other instrumentalities of the State (in addition
to Government servants). 2005 AIR SCW 6113
42
. In Canara Bank vs. V. K. Awasthy, 2005 (6) SCC 321, this Court held that the concept of
natural justice has undergone a great deal of change in recent years. As observed in para 8
of the said judgment : 2005 AIR SCW 2005
"Natural justice is another name for common-sense justice. Rules of natural justice are
not codified canons. But they are principles ingrained into the conscience of man. Natural
justice is the administration of justice in a common-sense liberal way. Justice is based
substantially on natural ideals and human values".
43. In para 12 of the said judgment it was observed :
"What is meant by the term "principles of natural justice" is not easy to determine. Lord
Summer (then Hamilton, L.J.) in R. v. Local Govt. Board (1914) 1 KB 160 : 83 LJKB 86
described the phrase as sadly lacking in
@page-SC2520
precision. In General Council of Medical Education and Registration of U.K. v.
Spackman (1943) AC 627 : (1943) 2 All ER 337, Lord Wright observed that it was not
desirable to attempt "to force it into any Procrustean bed".
44
. In State of Maharashtra vs. Public Concern for Governance Trust and Ors. 2007 (3) SCC
587, it was observed (vide para 39) : "In our opinion, when an authority takes a decision
which may have civil consequences and affects the rights of a person, the principles of
natural justice would at once come into play". 2007 AIR SCW 474
45. In our opinion, non-communication of entries in the Annual Confidential Report of a

public servant, whether he is in civil, judicial, police or any other service (other than the
military), certainly has civil consequences because it may affect his chances for
promotion or get other benefits (as already discussed above). Hence, such
noncommunication would be arbitrary, and as such violative of Article 14 of the
Constitution.
46. In view of the above, we are of the opinion that both the learned Single Judge as well
as the learned Division Bench erred in law. Hence, we set aside the judgment of the
Learned Single Judge as well as the impugned judgment of the learned Division Bench.
47. We are informed that the appellant has already retired from service. However, if his
representation for upgradation of the 'good' entry is allowed, he may benefit in his
pension and get some arrears. Hence we direct that the 'good' entry of 1993-94 be
communicated to the appellant forthwith and he should be permitted to make a
representation against the same praying for its upgradation. If the upgradation is allowed,
the appellant should be considered forthwith for promotion as Superintending Engineer
retrospectively and if he is promoted he will get the benefit of higher pension and the
balance of arrears of pay along with 8% per annum interest.
48. We, therefore, direct that the 'good' entry be communicated to the appellant within a
period of two months from the date of receipt of the copy of this judgment. On being
communicated, the appellant may make the representation, if he so chooses, against the
said entry within two months thereafter and the said representation will be decided within
two months thereafter. If his entry is upgraded the appellant shall be considered for
promotion retrospectively by the Departmental Promotion Committee (DPC) within three
months thereafter and if the appellant gets selected for promotion retrospectively, he
should be given higher pension with arrears of pay and interest @ 8% per annum till the
date of payment.
49. With these observations this appeal is allowed. No costs.
Appeal allowed.
AIR 2008 SUPREME COURT 2520 "Bharat Glass Tube Ltd. v. Gopal Glass Works Ltd."
(From : 2006 (2) Cal LJ 264)
-2008.
Bharat Glass Tube Ltd. v. Gopal Glass Works Ltd.
Designs Act (16 of 2000), S.19 - DESIGN - Cancellation of registration - Design "new or
original" - Design applied to glass sheets - Registered in name of respondent in India -
Not proved to be reproduced or registered anywhere in world - Would be "new and
original" - Registration of design, held, not liable to be cancelled.
Where the design applied to glass sheets and registered in name of respondent in India
was sought to be cancelled by the appellant on ground that it was not new or original in
India or abroad and appellant produced only a letter by German Company stating that
they produced rollers for bringing particular design on glass and sold in market but there
was no evidence to show that said Company produced glass sheets prepared out of these
rollers and appellant also failed to prove that said design was reproduced on glass or it
was registered anywhere in India or in world and alleged similar design downloaded by
appellant and produced in evidence from website of Patent office in U. K. was not
showing whether U. K. Company reproduced it on glass-sheet in U. K. or not and from
patterns and configuration there could be no comparison between said two designs, the
design registered in name of respondent in India for first time was thus "new and
original". The cancellation of registration of design of respondent
@page-SC2521
would not be proper. (Paras 8, 14, 15)
(1988) 16 RPC 343 10
(1987) FSR 283 10
AIR 1983 Del 537 9
1981 PTC 239 (Del) 9
(1981) FSR 613 10
(1941) 58 RPC 207 12
(1927) 44 RPC 503 10
AIR 1919 Cal 887 13
(1912) 29 RPC 196 8
(1910) 27 RPC 498 11
Dipankar P. Gupta, Jaideep Gupta, Sr. Advocates, Saurav Banerjee, S. Majumdar and
Pranab Kumar Mullick, Advocates, for Appellant; Ashok Kumar Desai, Sr. Advocate
Huzefa Ahmadi, Harin P. Raval, Raghavandra S. Srivatsa, Jasani and Abhijat P. Medh for
Respondents.
Judgement
2. This appeal is directed against the order dated 17.8.2005 passed by the Calcutta High
Court whereby learned Single Judge has set aside the order passed by the Assistant
Controller of Patents and Designs, Kolkata dated 20.9.2004 whereby the Assistant
Controller has cancelled the registration of the respondent herein and held that there was
no material on record to show that the design had previously been applied to glass sheets.
It was also held by learned Single Judge that the order impugned considered with the
materials on record, including in particular the computer print-outs clearly revealed that
the respondent has only compared the pattern and/or configuration considered the visual
appeal thereof, but not the visual appeal of the pattern and/or configuration on the article.
In other words, the Assistant Controller has not considered the visual appeal of the
finished product. The visual effect and/or appeal of a pattern embossed into glass sheets
by use of embossing rollers could be different from the visual effect of the same pattern
etched into glass sheets manually. This aspect was not considered. Aggrieved against this
order passed by learned Single Judge, the present appeal has been filed by the appellant.
3. In order to appreciate the controversy involved in the present appeal, a few facts may
be dilated here. The respondent herein claimed to carry on business inter alia of
manufacture and marketing of figured and wired glass sheets since 1981. The respondent
claimed to be the originator of new and original industrial designs, applied by mechanical
process to glass sheets. According to the respondent, the glass sheets have eye catching
shape, configuration, ornamental patters, get up and colour shades and the same were
registered and/or were awaiting registration as industrial designs under the Designs Act,
2000 (hereinafter to be referred to as the Act of 2000) and the Rules framed thereunder.
For production of glass sheets of the design registered as Design No. 190336, two rollers
are required. The rollers are manufactured by M/s. Dorn Bausch Gravuren GMBH of
Germany (hereinafter to be referred as the German Company). According to the
respondent the rollers are not only used for manufacture of glass sheets, but for various
other articles including plastic, rexin and leather. The respondent placed an order on the
German Company for supply of the rollers for launching a design of figured glass with
new and novel features not produced before by anyone else. On or about 29.10.2002 the
respondent applied to the Controller of Patents and Designs under Section 51 of the Act
of 2000 for registration of the said design in Class 25-01. The said design was duly
registered on 5.11.2002 and was to remain valid for a period of 10 years from the date of
its registration. The respondent claimed the exclusive copyright in India on the said
design applied to glass sheets. It was claimed that no other person has any right to apply
the said design to glass sheets as the respondent has exclusive right over the said design
on the glass sheets. The respondent marketed the glass sheets of the said design under the
name of Diamond Square and that became popular amongst the customers soon after its
launch in the market. After registration of the said design the respondent issued a notice
on 21.5.2003 cautioning other manufactures from infringing copyright of the respondent
in respect of the said registered design. But in the meanwhile the appellant and its
associate IAG Co.Ltd. started imitating the said registered design, as a result thereof the
respondent was constrained to file a suit being Civil Suit No. 1 of 2004 against the
appellant in the District Court of Mehsana. The respondent obtained a restraint order
restraining IAG Co. Ltd. from infringing the copyright of the respondent against the said
design. In order to counter-blast the suit,
@page-SC2522
the appellant herein filed an application under Section 19 of the Act of 2000 before the
Controller of Patents and Designs for cancellation of registration of Design No. 190336
in the name of the respondent mainly on the ground that the design has already been
previously published in India and abroad and on the ground that the design was not new
or original. The appellant primarily relied on a catalogue of the German Company and
letter dated 10.9.2003 of the German company addressed to M/s. IAG Co. Ltd. the
holding company of the appellant stating that the said German Company had developed
design No.2960-9010 in the year 1992 and the other evidence relied on by the appellant
was a document downloaded from the internet from the official website of the Patent
Office of the United Kingdom on 22.9.2004 which indicated that the same design had
been registered in United Kingdom in the name of M/s.Vegla Vereinigte Glaswerke
Gmbh sometime in 1992. As against this the respondent filed an affidavit stating that the
German Company has been engaged in the manufacture of engraving rollers and no other
goods and it was contended that the company was not engaged in manufacture of the
goods other than engraving rollers. It was contended that the company never
manufactured engraved glass sheets by using engraved rollers. The respondent also relied
on the communication dated 4.3.2004 of the German company confirming that the
embossing rollers covered by Design No.2950-910 had been sold to the respondent on
condition that all user rights available in India under Indian laws would vest exclusively
in the respondent and that the respondent would be entitled to exclusive user rights for at
least five years. The German company was aware of the registration of the Design No.
190331 and it had no objection to the design being marketed by the respondent herein. An
affidavit was also filed by the Liaison Executive of the respondent company that he
visited Germany and upon enquiry ascertained that M/s. Vegla Vereinigte Glaswerke
Gmbh had never manufactured glass sheets of the design registered as Design
No.2022468 in the United Kingdom. The respondent also objected to the admissibility of
the materials alleged to have been downloaded from the United Kingdom Patent Office.
It was also contended that in absence of corroborative evidence, such evidence cannot be
tendered and it cannot be treated as admissible evidence. It was also contended that the
German Company only manufactured rollers but did not produce glass-sheets prepared
out of these rollers.
4. On the basis of the pleadings, learned Assistant Controller of Patents and Designs
framed following three issues for determination :
(1) Whether the design was not new or original in view of the fact that the roller bearing
the design is published before the date of registration and the registered proprietor is not
owner of design.
(ii) Whether the design was published outside India as well as in India prior to the date of
application.
(iii) Whether the registered design was in public domain due to sale/use of the design
prior to the date of application of the registered proprietor.
The first two issues were decided against the respondent and the third issue was not
adjudicated since the evidence by way of affidavit was not taken on record on technical
reasons. Hence, the Assistant Controller of the Patents and Designs set aside the
registration of the respondent. Aggrieved against this order the respondent filed a regular
appeal under Section 36 of the Act of 2000 before the High Court. Learned Single Judge
after considering the matter reversed the finding of the Assistant Controller and dismissed
the application filed by the appellant for cancellation of registration of the respondent
herein. Aggrieved against this impugned order passed by learned Single Judge of the
Calcutta High Court the present appeal was filed by the appellant-complainant.
5. We have heard learned senior counsel for the parties at length and perused the record.
Before we proceed to decide on the merit of the matter, it would be profitable to refer to
the relevant provisions of the Act. It may be mentioned here that in 1911 the Designs Act
was passed by the then British Government in India. But with the advancement of science
and technology and the number of registration of the design having increased in India, the
Act of 1911 was amended wholesale by the Parliament and this new Act known as
Designs Act, 2000 came to be introduced in the Parliament and the same was passed as
such. The statement of objects and reasons read as under :
@page-SC2523
"STATEMENT OF OBJECTS AND REASONS
Since the enactment of the Designs Act, 1911 considerable progress has been made in the
field of science and technology. The legal system of the protection of industrial designs
requires to be made more efficient in order to ensure effective protection to registered
designs. It is also required to promote design activity in order to promote the design
element in an article of production. The proposed Design Bill is essentially aimed to
balance these interests. It is also intended to ensure that the law does not unnecessarily
extent protection beyond what is necessary to create the required incentive for design
activity while removing impediments to the free use of available designs."
Section 2 of the Act of 2000 deals with the definitions and the Controller has been
defined in Section 2 (b) as follows :
"(b) "Controller" means the Controller-General of Patents, Designs and Trade Marks
referred to in section 3."
"Copyright" means the exclusive right to apply a design to any article in any class in
which the design is registered. Section 2 (d) defines design which reads as under :
"(d) "design" means only the features of shape, configuration, pattern, ornament or
composition of lines of colours applied to any article whether in two dimensional or three
dimensional or in both forms, by any industrial process or means, whether manual,
mechanical or chemical, separate or combined, which in the finished article appeal to and
are judged solely by the eye; but does not include any mode or principle of construction
or anything which is in substance a mere mechanical device, and does not include any
trade mark as defined in clause (v) of sub-section (1) of section 2 of the Trade and
Merchandise Marks Act, 1958 (43 of 1958) or property mark as defined in section 479 of
the Indian Penal Code (45 of 1860) or any artistic work as defined in clause (c) of section
2 of the Copyright Act, 1957 (14 of 1957);"
Section 2 (g) defines original which reads as follows :
"(g) "original", in relation to a design, means originating from the author of such design
and includes the cases which though old in themselves yet are new in their application;"
Section 2 (i) defines 'prescribed' which means prescribed by rules made under this Act.
Section 2(j) defines proprietor of a new or original design' which reads as under :
"(j) "proprietor of a new or original design". -
(i) where the author of the design, for good consideration, executes the work for some
other person, means the person for whom the design is so executed;
(ii) where any person acquires the design or the right to apply the design to any article,
either exclusively of any other person or otherwise, means, in the respect and to the
extent in and to which the design or right has been so acquired, the person by whom the
design or right is so acquired; and
(iii) in any other case, means the author of the design; and where the property in or the
right to apply, the design has devolved from the original proprietor upon any other
person, includes that other person." Section 3 deals with the Controller and other officers.
Section 4 deals with the prohibition of registration of certain designs which has relevant
bearing on our case. It reads as follows :
"4. Prohibition of registration of certain designs.- A design which -
(a) is not new or original; or
(b) has been disclosed to the public anywhere in India or in any other country by
publication in tangible form or by use or in any other way prior to the filing date, or
where applicable, the priority date of the application for registration; or
(c) is not significantly distinguishable from known designs or combination of known
designs; or
(d) comprises or contains scandalous or obscene matter,
shall not be registered."
Section 5 deals with the application for registration of designs. Section 6 deals with the
registration to be in respect of particular article. Section 7 deals with publication of
particulars of registered designs. Section 9 deals with the certificate of registration which
reads as under :
"9. Certificate of registration. - (1) The Controller shall grant a certificate of registration
to the proprietor of the design when registered.
(2) The Controller may, in case of loss of
@page-SC2524
the original certificate, or in any other case in which he deems it expedient, furnish one or
more copies of the certificate." Section 10 deals with register of designs which reads as
follows :
"10. Register of designs. - (1) There shall be kept at the patent office a book called the
register of designs, wherein shall be entered the names and addresses of proprietors of
registered designs, notifications of assignments and of transmissions of registered
designs, and such other matter as may be prescribed and such register may be maintained
wholly or partly on computer floppies or diskettes, subject to such safeguards as may be
prescribed.
(2) Where the register is maintained wholly or partly on computer floppies or diskettes
under sub-section (1), any reference in this Act to any entry in the register shall be
construed as the reference to the entry so maintained on computer floppies or diskettes.
(3) The register of designs existing at the commencement of this Act shall be
incorporated with and form part of the register of designs under this Act.
(4) The register of designs shall be prima facie evidence of any matter by this Act
directed or authorized to be entered therein."
Section 11 deals with copyright on registration which reads as under :
"11. Copyright on registration. - (1) When a design is registered, the registered proprietor
of the design shall, subject to the provisions of this Act, have copyright in the design
during ten years from the date of registration.
(2) If, before the expiration of the said ten years, application for extension of the period
of copyright is made to the Controller in the prescribed manner, the Controller shall, on
payment of the prescribed fee, extend the period of copyright for a second period of five
years from the expiration of the original period often years."
Section 12 deals with restoration of lapsed designs which reads as under :
"12. Restoration of lapsed designs. - (1) Where a design has ceased to have effect by
reason of failure to pay the fee for the extension of copyright under sub-section (2) of
section 11, the proprietor of such design or his legal representative and where the design
was held by two or more persons jointly, then, with the leave of the Controller one or
more of them without joining the others, may, within one year from the date on which the
design ceased to have effect, make an application for the restoration of the design in the
prescribed manner on payment of such fee as may be prescribed.
(2) An application under this section shall contain a statement, verified in the prescribed
manner, fully setting out the circumstances which led to the failure to pay the prescribed
fee, and the Controller may require from the applicant such further evidence as he may
think necessary."
Section 17 deals with inspection of registered designs which reads as under :
"17. Inspection of registered designs. - (1) During the existence of copyright in a design,
any person on furnishing such information as may enable the Controller to identify the
design and on payment of the prescribed fee may inspect the design in the prescribed
manner.
(2) Any person may, on an application to the Controller and on payment of such fee as
may be prescribed, obtain a certified copy of any registered design." Section 18 deals
with information as to existence of copyright which reads as under :
"18. Information as to existence of copyright. - On the request of any person furnishing
such information as may enable the Controller to identify the design, and on payment of
the prescribed fee, the Controller shall inform such person whether the registration still
exists in respect of the design, and, if so, in respect of what classes of articles, and shall
state the date of registration, and the name and address of the registered proprietor.
Section 19 deals with cancellation of registration which reads as under :
"19. Cancellation of registration. - (1) Any person interested may present a petition for
the cancellation of the registration of a design at any time after the registration of the
design, to the Controller on any of the following grounds, namely :-
(a) that the design has been previously registered in India; or
(b) that it has been published in India or in any other country prior to the date of
registration; or
(c) that the design is not a new or original design; or
@page-SC2525
(d) that the design is not registerable under this Act; or
(e) that it is not a design as defined under clause (d) of section 2.
(2) An appeal shall lie from any order of the Controller under this section to the High
Court, and the Controller may at any time refer any such petition to the High Court, and
the High Court shall decide any petition so referred."
Section 22 deals with piracy of registered design. Chapter VI deals with fees, notice of
trust not to be entered in registers etc. with which we are not concerned. Section 32 in
Chapter VII deals with the powers and duties of the Controller which reads as follows :
"32. Powers of Controller in proceedings under Act. - Subject to any rules in this behalf,
the Controller in any proceedings before him under this Act shall have the powers of a
civil court for the purpose of receiving evidence, administering oaths, enforcing the
attendance of witnesses, compelling the discovery and production of documents, issuing
commissions for the examining of witnesses and awarding costs and such award shall be
executable in any court having jurisdiction as if it were a decree of that court."
Section 36 deals with the appeals to the High Court. Section 37 in Chapter VIII says that
evidence can be tendered by affidavit or it can be by way of viva voce in lieu of or in
addition to evidence by affidavit and the party may be allowed to cross-examine on the
contents of the affidavit. Section 44 deals with reciprocal arrangement with the United
Kingdom and other convention countries or group of countries or inter-governmental
organizations. The Central Government in exercise of power conferred under sub-section
(3) of section 1 of the Act of 2000 framed the rules known as The Designs Rules, 2001
(hereinafter to be referred to as the Rules of 2001). It has framed necessary rules to
implement the provisions of the Act. Rule 11 says how the application is to be made for
registration and says the mode of submission of application for registration. Rule 29 deals
with the procedure how the cancellation of the registration can be made and a detailed
provision has been made for implementation of Rule 29 of the Rules of 2001. Form of
application for applying for registration is also provided as Form 1. Form 8 deals with the
petition for cancellation for the registration of a design. This is the whole background of
the Act.
6. In fact, the sole purpose of this Act is protection of the intellectual property right of the
original design for a period of ten years or whatever further period extendable. The object
behind this enactment is to benefit the person for his research and labour put in by him to
evolve the new and original design. This is the sole aim of enacting this Act. It has also
laid down that if design is not new or original or published previously then such design
should not be registered. It further lays down that if it has been disclosed to the public
anywhere in India or in any other country by publication in tangible form or by use or in
any other way prior to the filing date, or where applicable, the priority date of the
application for registration then such design will not be registered or if it is found that it
is not significantly distinguishable from known designs or combination of known
designs, then such designs shall not be registered. It also provides that registration can be
cancelled under section 19 of the Act if proper application is filed before the competent
authority i.e. the Controller that the design has been previously registered in India or
published in India or in any other country prior to the date of registration, or that the
design is not a new or original design or that the design is not registrable under this Act or
that it is not a design as defined in clause (d) of section 2. The Controller after hearing
both the parties if satisfied that the design is not new or original or that it has already
been registered or if it is not registrable, cancel such registration and aggrieved against
that order, appeal shall lie to the High Court. These prohibitions have been engrafted so
as to protect the original person who has designed a new one by virtue of his own efforts
by researching for a long time. The new and original design when registered is for a
period of ten years. Such original design which is new and which has not been available
in the country or has not been previously registered or has not been published in India or
in any other country prior to the date of registration shall be protected for a period of ten
years. Therefore, it is in the nature of protection of the intellectual property right. This
was the purpose as is evident from the statement of objects and reasons and from various
provisions of the Act. In this background,
@page-SC2526
we have to examine whether the design which was registered on the application filed by
the respondent herein can be cancelled or not on the basis of the application filed by the
appellant. In this connection, the law of Copyright and Industrial Designs by P.Narayanan
(Fourth Edition), Para 27.01 needs to be quoted.
"27.01. Object of registration of designs. The protection given by the law relating to
designs to those who produce new and original designs, is primarily to advance
industries, and keep them at a high level of competitive progress.
"Those who wish to purchase an article for use are often influenced in their choice not
only by practical efficiency but the appearance. Common experience shows that not all
are influenced in the same way. Some look for artistic merit. Some are attracted by a
design which is a stranger or bizarre. Many simply choose the article which catches their
eye. Whatever the reason may be one article with a particular design may sell better than
one without it : then it is profitable to use the design. And much thought, time and
expense may have been incurred in finding a design which will increase sales". The
object of design registration is to see that the originator of a profitable design is not
deprived of his reward by others applying it to their goods.
The purpose of the Designs Act is to protect novel designs devised to be applied to (or in
other words, to govern the shape and configuration of) particular articles to be
manufactured and marketed commercially. It is not to protect principles of operation or
invention which, if profitable at all, ought to be made the subject-matter of a patent. Nor
is it to prevent the copying of the direct product of original artistic effort in producing a
drawing. Indeed the whole purpose of a design is that it shall not stand on its own as an
artistic work but shall be copied by embodiment in a commercially produced artefact.
Thus the primary concern, is what the finished article is to look like and not with what it
does and the monopoly provided for the proprietor is effected by according not, as in the
case of ordinary copyright, a right to prevent direct reproduction of the image registered
as the design but the right, over a much more limited period, to prevent the manufacture
and sale of article of a design not substantially different from the registered design. The
emphasis therefore is upon the visual image conveyed by the manufactured article."
7. As mentioned above, the Assistant Controller primarily has taken into consideration the
two evidence, (i) that the design was registered way back 1992 by the German company
on the roller to be used either on glass, or rexin or on leather, therefore it is not new and
original and (ii) that the same design has been obtained in United Kingdom as is evident
from the downloading of Patent website of the United Kingdom. On the basis of this two
evidence, the Assistant Controller has held that the design which was registered on the
application filed by the respondent herein was not a new and original. Therefore, on the
application filed by the appellant, the Assistant Controller of Patents and Designs
cancelled that design of the respondent.
8. Now, we shall examine to what extent the view taken by the Assistant Controller can
be sustained and whether the view taken by learned Single Judge was correct or not.
Now, coming to the first issue which has been framed by the Assistant Controller, the
Assistant Controller found that M/ s.Dornbusch Gravuren Gmbh, a German Company
published a brochure bearing distinctive number 2960-910 for the first time on 10.9.1993
and the registered proprietor took the user's right and got it registered. The Assistant
Controller found that it is not the inventive ingenuity of the respondent and found that in
order to register the design it should be new or original and the Assistant Controller found
that there is insufficient evidence of originality and therefore, he came to the conclusion
that the design is not a new and original one registered prior to the date of registration.
Therefore, the question is whether the design is new and original. Section 4 which is
couched in the negative terms, says that the design which is not a new or original then
such design cannot be registered. Therefore, the question is the design which has been
prepared by the German Company and which has been sold to the respondent which
became the proprietor of it, is a new or original or not. In this connection, the burden was
on the complainant to show that the design was not original or new. We have no
hesitation in recording a finding that the burden was not discharged by the complainant. It
only tried to prove on the basis of the
@page-SC2527
letter of the German company that they produced the rollers and sold in market but it was
nowhere mentioned that these rollers have been reproduced on the glass sheets by the
German company or by any other company. The expression, "new or original" appearing
in Section 4 means that the design which has been registered has not been published
anywhere or it has been made known to the public. The expression, "new or original"
means that it had been invented for the first time or it has not been reproduced by anyone.
The respondent company purchased the rollers from the German company and got it
registered with the registering authority that by these rollers they are going to produce the
design on the glass sheets. Design has been defined in section 2(d) which means that a
feature of shape, configuration, pattern, ornament or composition of lines or colours
applied to any article whether in two dimensional or three dimensional or in both forms,
by any industrial process. That means that a feature or a pattern which is registered with
the registering authority for being produced on a particular article by any industrial
process whether manual, mechanical or chemical or by any other means which appears in
a finished article and which can be judged solely by eye appeal. The definition of design
as defined in section 2(d) read with application for registration and rule 11 with form 1
makes it clear that the design which is registered is to be applied to any finished article
which may be judged solely by eye appeal. A conjoined reading of these three provisions
makes it clear that a particular shape or a particular configuration is to be registered
which is sought to be produced on any article which will have visual appeal. Such design
once it is registered then it cannot be pirated by any other person. But the question is
whether it is new or original. In the present case, the complainant relied on the
correspondence of the German company which produced the rollers and sold it to the
respondent herein and it gave the proprietary right to the present respondent company.
'Proprietor' as defined in section 2 (j) of the Act means that any person who acquires the
design or right to apply the design to any article, either exclusively of any other person or
otherwise, means, in the respect and to the extent in and to which the design or right has
been so acquired. Therefore, this right to reproduce this design on an article has been
given by the German company to the respondent. But again the question is whether the
complainant had discharged their burden to show that this design is not new or original.
For this purpose, they only banked upon the letter of the German company which
prepared these rollers and there is no evidence to show that the design which was
reproduced on glass sheets was either produced by any other agency. Therefore, the
expression that 'new or original' in this context has to be construed that whether this
design has ever been reproduced by any other company on the glass sheet or not. There is
no evidence whatsoever produced by the complainant either before the Assistant
Controller or before any other forum to show that this very design which has been
reproduced on the glass sheet was manufactured anywhere in the market in India or in
United Kingdom. There is no evidence to show that these rollers which were
manufactured or originally designed by the company was marketed by this company to
be reproduced on glass sheets in India or even in United Kingdom. This proprietorship of
this design was acquired by this respondent from the German company and there is no
evidence on record to show that these rollers were used for designing them on the glass
sheets in Germany or in India or in United Kingdom. What is required to be registered is
a design which is sought to be reproduced on an article. This was the roller which was
designed and if it is reproduced on an article it will give such visual feature to the design.
No evidence was produced by the complainant before the Assistant Controller that
anywhere in any part of the world or in India this design was reproduced on glass or it
was registered anywhere in India or in any part of the world. The German company only
manufactured the roller and this roller could have been used for bringing a particular
design on the glass, rexin or leather but we are concerned here with the reproduction of
the design from the roller on glass which has been registered before the registering
authority. Therefore, this design which is to be reproduced on the article i.e. glass has
been registered for the first time in India and the proprietary right was acquired from the
German company. We have gone through the letter of the German company and it
nowhere says that this was reproduced on a glass sheet. No evidence
@page-SC2528
was produced by the complainant that this design was reproduced on a glass sheet in
Germany or in India. The contents of the letter are very clear. It shows that it was
designed in 1992 and was marketed in 1993. But there is no evidence to show that this
design was reproduced on glass sheet anywhere in Germany. Section 4 clearly says that
the Controller will only register a design on application made under Section 5 by the
proprietor of any new or original design not previously published in any country and
which is not contrary to public order or morality and it further says that this application
shall be in a prescribed form and the prescribed form has been given in form 1. Form 1
clearly says that the design is to be applied. Relevant column of the form reads as under :
Insert number of class You are requested to register the accompanying in Class No.. in the
name of....
Insert (in full) the name Address and nationality .................. who claim(s) to be the
proprietor thereof.
State whether drawings, Photographs, tracings or specimens. Four exactly
similar........ of the design accompany this request.
Insert name of article or articles to which the design is to be applied or state trade
description of each of the articles contained in the set. The design is to be applied to
...............
That shows that for name of the article on which the design is sought to be transcripted
has to be mentioned at the time of registration. The respondent moved an application
filling this form that this roller which has been manufactured by the German company
with that design shall be reproduced on the glass. Therefore, when the application was
filed by the respondent for registration, it was registered on the basis that the roller which
will be used by mechanical process will bring design on a glass which is registered.
Therefore, what is sought to be protected is that the design which will be reproduced on
the roller by way of mechanical process and that design cannot be reproduced on glass by
anybody else. Now, the question is whether it is new or original design. For that it is clear
that there is no evidence to show that this design which is reproduced on the glass sheet
was either registered in India or in Germany or for that matter in United Kingdom. The
expression, 'design' has come up for interpretation in English courts. The expression,
design is almost pari materia with the definition of design in the Indian context. The
expression, 'design' in the English Act which is known as the Registered Designs Act,
1949 reads as under :
"In this Act the expression, 'design' means features of shape, configuration, pattern or
ornament applied to an article by any industrial process, being features which in the
finished article appeal to and are judged solely by the eye, but does not include
(a) a method or principle of construction or
(b) features of shape or configuration which
(i) are dictated solely by the function which the article has to perform, or
(ii) are dependent upon the appearance of another article of which the article is intended
by the author of the design to form an integral part."
The history of this definition has been detailed by Russel-Clarke and Howe on Industrial
Designs (Seventh Edition) at para 3.11 at page 74 which reads as under :
"3-11. This definition contains a cumulative series of requirements, many of which have
been the subject of judicial decision and analysis. The historical process by which this
definition has evolved is of importance to its present day interpretation
@page-SC2529
and application. Some of the more important embellishments to the definition, such as
those dealing with eye appeal and methods or principles of construction, have found their
way into the pre-2001 statutory definition as a result of the explicit adoption such
requirements were held to be implicit in the earlier and less elaborate statutory definitions
of "design". This manifests an intention by the legislature to adopt and make explicit the
principles developed in those cases.
xx xx xx
3. 13. The words of the section are : "........design means features of shape configuration,
pattern or ornament applied to an article . ."(Emphasis supplied). Thus a registrable
design, as defined by the RDA (A), must have reference to some specific article to which
it is to be applied. The design to be registered "is a shape, configuration or pattern to be
applied a particular specified article". It can be readily seen that a particular pattern of
surface ornamentation could be applied to wide range of different articles. An application
for registration was not in respect of the pattern as such, but in respect of its application
to the specific article named. If it was desired to register the same design, e.g. a surface
pattern or decoration, in respect of a series of different articles (apart from the special
case of articles which together form a set), then a separate application had to be made in
respect of each article, and each application to register was numbered separately and
treated as a separate and distinct application.
In the case of designs consisting of features of shape or configuration, there may of
course be cases where the design is intrinsically applicable only to a specific kind of
article. The article itself does not, however, constitute the design. In Dover v. Nurnberger
Celluloid Waren Fabrik Gebruder Wolff, Buckley L.J. said :
"Design means, therefore, a conception or suggestion or idea of a shape or of a picture or
of a device or of some arrangement which can be applied to an article by some manual,
mechanical or chemical means. It is a conception, suggestion, or idea, and not an article,
which is the thing capable of being registered. It is a suggestion of form or ornament to
be applied to a physical body." [Pugh v. Riely Cycle Co Ltd. (1912) 29 R.P.C. 196]
Accordingly, it is submitted that a design is an idea or conception as to features of shape,
configuration, pattern or ornament applied to an article. Although that idea, while still in
the author's head, may be potentially capable of registration, in fact it must be reduced to
visible form to be identifiable, and until it is so reduced there is nothing capable of
registration. It may be so rendered either by its being embodied in the actual article, or by
its being placed upon a piece of paper in such a way that the shape or other features of the
article to be made are clear to the eye. Whenever the means of identification (under some
of the old Acts, provision was made whereby a mere verbal description could in some
cases be accepted as sufficient), as soon as the idea is reduced to a form which is
identifiable, there is something which is a "design", and which, if new or original, may be
registrable."
Similarly our attention was also invited to para 27.07 of the law of Copyright and
Industrial Designs by P.Narayanan (Fourth Edition) which reads as under :
"27.07. Design as a conception or idea "Design means a conception or suggestion or idea
of a shape or of a picture or of a device or of some arrangement which can be applied to
an article by some manual, mechanical or chemical means mentioned in the definition
clause. It is a suggestion of form or ornament to be applied to a physical body". It is a
conception, suggestion or idea, and not an article, which is the thing capable of being
registered. It may according to the definition clause, be applicable to any article whether
for the pattern or for the shape or configuration or for the ornament thereof (that is to say
of the article) or for any two or more of such purposes. The design, therefore, is not the
article, but is the conception, suggestion, or idea of a shape, picture, device or
arrangement which is to be applied to the article, by some one of the means to be applied
to a physical body."
A design capable of registration cannot consist of a mere conception of the features
mentioned in the definition, or in the case of an article in three dimensions, of a
representation of such features in two dimensions. It must, in such a case, in order to
comply with the definition, consist of the features as they appear in the article to which
they have been applied by some industrial
@page-SC2530
process or means. An applicant for registration of a design has to produce a pictorial
illustration of the idea or suggestion which he has to establish as new or original;"
Therefore, the concept of design is that a particular figure conceived by its designer in his
mind and it is reproduced in some identifiable manner and it is sought to be applied to an
article. Therefore, whenever registration is required then those configuration has to be
chosen for registration to be reproduced in any article. The idea is that the design has to
be registered which is sought to be reproduced on any article. Therefore, both the things
are required to go together, i.e. the design and the design which is to be applied to an
article. In the present case, the design has been reproduced in the article like glass which
is registered. This could have been registered with rexin or leather. Therefore, for
registration of a particular configuration or particular shape of thing which is sought to be
reproduced on a particular article has to be applied. As in the present case the design
sought to be reproduced on a glass-sheet has been registered and there is no evidence to
show that this design was registered earlier to be reproduced on glass in India or any
other part of the country or in Germany or even for that matter in United Kingdom,
therefore, it is for the first time registered in India which is new and original design
which is to be reproduced on glass sheet. Therefore, the submission of learned senior
counsel for the appellant, Mr. Gupta cannot be accepted that this design was not new and
original.
9
. In this connection, our attention was invited to the decisions of the Delhi High Court in
1981 PTC 239 [M/s. Domestic Appliances and Others v. M/s. Globe Super Parts] and
1983 PTC 373 [The Wimco Ltd. Bombay v. M/s. Meena Match Industries, Sivakasi and
Ors.]. In M/s. Domestic Appliances and Ors., M/s. Globe Super Parts, Faridabad
manufactured gas tandoors and they got the design registered in respect of gas tandoor.
The petitioners- M/s. Domestic Appliances and Ors. also manufacture gas tandoors under
the trade mark 'Sizzler'. They were selling the same in Delhi market. The respondent filed
a suit against the petitioners alleging inter alia infringement of the design and obtained
temporary injunction restraining the petitioners from selling the seasonal goods. The
petitioners filed an application under Section 51A of the Designs Act, 1911 for
cancellation of the design No. 145258 before the Controller of Designs, Calcutta. The
cancellation was sought on the allegations that the design No. 145258 was prepublished
in India on the date of registration in as much as the respondents themselves were
manufacturing and selling the gas tandoors earlier to the date of application for
registration of design No. 145258 and sold the same to various parties in Delhi, Punjab,
Haryana, Jammu and Kashmir and Uttar Pradesh and also advertised the said supercook
gas tandoor in several newspapers. It was also alleged that the respondents were not the
originators or the owners of the design. Therefore, it should be cancelled. This was
resisted by the respondents. Similarly in this case here also it was alleged that this
application has been filed as a counterblast to the suit filed by the respondent and it was
also pleaded that the petitioners were not interested in cancellation of the design. In the
suit certain issues were framed and the High Court held that there was no definite
evidence produced by the parties that the design had been previously registered in India.
It was also held that the respondents were manufacturing the gas tandoors of the
impugned design prior to 1977 and ultimately the Court held that the gas tandoors of the
impugned design had been sold prior to the date of its publication. In other words the
design had been published for the first time in India in 1977. Therefore, this case was
decided purely on the question of fact and no ratio has been laid down. Similarly in 1983
PTC 373, this was a case by the Wimco Limited, a public limited company which carried
on business of manufacturing and selling match boxes. It was claiming that they were one
of the famous manufacturers of matches and they developed a design and gave it a name
as 'HOTSPOT and made an application for registration under the provisions of the
Designs Act, 1911 and the same was registered. Thereafter a suit was instituted against
M/ s. Meena Match Industries, M/s. Thilgaraj Match Works and Ms. Sanjay and Co. to
restrain the defendants from manufacturing, producing, selling and/or marketing or
offering for same match boxes bearing the impugned pattern/ design on the match boxes.
After review of the evidence on record AIR 1983 Delhi 537
AIR 1983 Delhi 537
@page-SC2531
the Court held that the design given to M/s. Wimco was liable to be cancelled on the
ground that it has been published in India prior to the date of registration and the design
was not a new or original one. Therefore, this was also decided basically on the question
of fact. Similarly in the present case, as we have discussed above, that this design which
was registered in the name of M/s. Gopal Glass Works was not published in India or in
Germany. Therefore, it was a new and original design.
10. The question of eye appeal came up for consideration in Interlego A.G. v. Tyco
Industries Inc. ([1988] 16 RPC 343). In that their Lordships have laid down important test
in the matter of visual appeal of the eye. It was observed as follows :
"In relation, however, to an assessment of whether a particular shape or configuration
satisfies the former and positive part of the definition, the fact that an important part of
the very purpose of the finished article is to appeal to the eye cannot be ignored. That
factor was one which was conspicuously absent from the articles upon which the courts
were required to adjudicate in the cases of Tecalemit Ltd. v. Ewarts Ltd.(1927) 44 RPC
503, Stenor and Amp and in the more recent Irish case of Allibert S.A. v. O'Connor
[1981] FSR 613, in all of which the claim to registration failed. It was one which was
present in the case of Kestos where the claim to the validity of the design succeeded. It is
present in the instant case. One starts with the expectation of eye-appeal, for part of the
very purpose of the article is to have eye-appeal. That was aptly expressed by Whitford J.
in relation to the same subject-matter as in this appeal in the case of Interlego A.G. v.
Alex Folley (Vic) Pty. Ltd. [1987] FSR 283 at page 298: -
"I would have expected a designer designing toys to have the question of the appeal of
the toy to the eye, even in the case of a functional, toy, in mind. Mr. Rylands who have
evidence for the defendants said that when designing a functional toy it is necessary to
have regard not only to suitability for purpose but to overall appearance. You have to
design so that the article in question will make an immediate visual appeal to a child or to
the parent or other person buying for a child."
One has to be very cautious unless two articles are simultaneously produced the Court
then alone the Court will be able to appreciate. But in the present case no design
reproduced on the glass-sheets was either produced before the Assistant Controller or
before the High Court or before us by the appellant to appreciate the eye appeal. The
appellant could have produced the design reproduced on glass-sheet it manufactured in
United Kingdom or Germany. That could have been decisive.
11. Our attention was invited to Dover Ltd. v. Nurnberger Celluloidaren Fabrik Gebruder
Wolff ([1910] 27 RPC 498). This was a case in which the question was of the pattern or
ornament of hand grip for cycle handles brought an action for infringement against a
German firm of manufacturers, and against their London agents. The defendants admitted
that they were selling cycle handles with the design resembling the plaintiffs' registered
design but pleaded that the plaintiffs' registered design was not a new or original design
not previously published in the United Kingdom and alleged that it was commonly
known for many years prior to the date of the registration. Though the Single Judge held
that the design was new and original having regard to the kind of article for which it was
registered and that it had been applied by the defendants to the cycle handles sold by
them but the Court of Appeal held that the design was not new or original within the
definition of the Patents and Designs Act, 1907, and that the defendants had not
infringed. Therefore, this case was decided on the question of fact and evidence lead by
the parties. In this case, Buckley, J. observed as follows :
"In my opinion, there is in this no originality. If, however, the Respondents' Counsel are
right in saying that the Design is the whole thing as shown in the picture, then, it seems to
me, that the Defendants have not infringed. Their handle is not divided into six panels but
into nine panels. Their grooves are so much more shallow than the Plaintiffs' grooves as
to be easily distinguishable from them. Fraudulent imitation there was certainly none;
neither was there obvious imitation either.
In my judgment, this Act was intended to protect Designs which really have some merit
by way of novelty or originality and not to give colour to such paltry and trivial claims as
have been set up in this case. The appeal must, I think, succeed and the action be
dismissed with costs."
@page-SC2532
Kennedy L.J. also took the similar view and observed as follows :
"In the present case, as I have already said, if I rightly appreciate the evidence, a panelled
hand grip with grooved divisions was not new, nor was the engine-turning of surfaces as
an ornamentation of those surfaces new, for it had been applied to what I may, I think,
fairly call the kindred surfaces of knife handles and penholders, where the hand grips
them. I cannot find either novelty or originality in the Plaintiffs' Design by reason of such
a combination."
Therefore, both the case was distinguishable on question of facts only.
12. Our attention was also invited to King Features Syndicate Incorporated and Frank
Cecil Betts, the Personal Representative of Elzie Chrisler Segar, Deceased, v. O. and M.
Kleeman Ld. ([1941] 58 RPC 207). In this case also, action was brought for alleged
infringement of certain copyright in certain drawings. It was contended by the defendants
that they had not manufactured or imported and sold as alleged by the plaintiffs and there
was no infringement. Leave was granted. The Court of Appeal allowed the appeal. The
plaintiffs appealed to the House of Lords and the appeal was allowed. There also much
turned on the question of evidence.
13. Our attention was invited to Gammeter v. Controller of Patents and Designs and
others AIR. 1919 Cal 887. Their Lordships discussed the concept of new and original. In
that context, it was observed as follows :
"A design in order to be new or original within the meaning of the Act, need not be new
or original in the sense of never having been seen before as applied to any article
whatever, there might be a novelty in applying an old thing to a new use, provided it is
not merely analogous. Where the design of a metal band called the "Novelty band,"
intended to attach a watch to the wrist, was similar in shape and configuration to a
bracelet previously manufactured for ornamental purpose."
Their Lordships further held as follows :
"Though the shape of the "Novelty" band by itself could not be said to be new and
original, the application of it to a watch to be worn on the wrist was for a purpose so
different from and for a use so similar to the purpose and use of the bracelet that the
design in question might be said to be original. Worn on the wrist was for a purpose so
different from and for a use so similar to the purpose and use of the bracelet that the
design in question might be said to be original."
Therefore, this case also depended on the appreciation of the material placed before the
Court.
14. The next evidence which was lead by the appellant was a website had been
downloaded from the United Kingdom Patent Office effecting patent that may be applied
to glass sheets. No evidence has been produced to show that M/s.Vegla Vereinigte
Glaswerke Gmbh had manufactured this design in glass sheet or not. It is only a design
downloaded from the website of the Patent office in U.K. and it is not known whether it
was reproduced on glass-sheet in U.K. or not. In this connection, the Assistant Controller
has only observed that he has made a visual comparison of the U.K. registered design
No.2022468 with the impugned design No. 190336 and he was satisfied that both the
designs make same appeal to the eye and there was sufficient resemblance between the
two designs. Therefore, the Assistant Controller held that the impugned design was prior
published and it could not be said to be new or original. The Assistant Controller further
observed that the proprietor of this design had not been able to make a difference between
the U.K. design and the present design. This was not accepted by learned Single Judge of
the Calcutta High Court and for the good reason. It was observed by learned Single Judge
as under :
"The illustrations in the form of drawings downloaded from the website of the United
Kingdom Patent Office depict the patterns that may be applied to glass sheets. The
patterns may be same but the illustrations do not give the same visual effect as the
samples of the glass sheets produced by the appellant in Court. There are also no clean
unmistakable instructions or directions for production of glass sheets of the pattern
illustrated.
The visual effect and/or appeal of a pattern embossed into glass sheets by use of
embossing rollers could be different from the visual effect of the same pattern etched into
glass sheets manually. The respondent No. 1 has not considered these factors.
The order impugned considered with the
@page-SC2533
materials on record, including in particular the computer print outs clearly reveals that the
respondent No. 1 has only compared the pattern and/or configuration considered the
visual appeal thereof, but not the visual appeal of the pattern and/or configuration on the
article. In other words, the Respondent No. 1 has not considered the visual appeal of the
finished product.
There are no materials on record to show that the design had previously been applied to
glass sheets. On the other hand, an affidavit was sworn on behalf of the appellant by a
Liaison Executive affirming that he had ascertained that the proprietor of the design
registered in the United Kingdom had never manufactured glass sheets of the design
registered."
From this it appears that in fact the pattern of the design which is reproduced on the
glass-sheet and the design and the pattern which was reproduced on the glass-sheet of the
United Kingdom was not common. The affidavit sworn on behalf of the respondent
herein, the liaison Executive that he had ascertained from the proprietor of the design
registered in United Kingdom and they have never manufactured glass-sheet of the
design registered. This affidavit evidence of the Liaison Executive of the respondent
company has remained un-rebutted. Secondly, the learned Assistant Controller has not
properly compared the two designs that on what comparison he found that the same
configuration or pattern are identical with that of the impugned design. Simply by saying
visually one can liable to commit the mistake but if the comparison is to be judged
whether the pattern of the United Kingdom and that of the present pattern is three
dimension or not. Both the designs were placed before us as was done before the High
Court also. Learned Single Judge recorded its finding after seeing both the designs that
there is distinguishable difference between the two. Similar attempt was made before us
to show that both the designs i.e. one that is published in United Kingdom and the
impugned design are identical. We have seen the original glass pattern produced before us
and the photograph of the pattern produced on record. If the complainant was serious
about the same, it could have produced the pattern which was reproduced on the glass-
sheet in the United Kingdom and the pattern which is reproduced on the glass-sheet by
the rollers of the design produced before us. If these two glass-sheets were placed before
learned Single Judge or before us we would have been able to record the finding. The
finding recorded by the Assistant Controller is most inconclusive and it does not give us
any assurance that it was a proper comparison of the two patterns by the Assistant
Controller. Learned Single Judge of the Calcutta High Court had occasion to go through
both the patterns and found that there is no comparison. Likewise, the glass-sheets were
placed before us with all dimensions along with a copy of the print out of the United
Kingdom and we are of opinion that there is no comparison between the two. From the
visual appeal placed before us, learned Single Judge has rightly concluded that there is no
comparison of pattern or configuration of two designs. We fully agree with the view
taken by learned Single Judge. Hence on this count also the view taken by the Assistant
Controller does not appear to be correct and the view taken by learned Single Judge of
the Calcutta High Court is correct.
15. As a result of our above discussion, we do not find any merit in this appeal and the
same is dismissed with costs of Rs.50,000/-(Rupees fifty thousand only).
Appeal dismissed.
AIR 2008 SUPREME COURT 2533 "Reliance Infocomm Ltd. v. Bharat Sanchar Nigam
Ltd."
Coram : 2 S. H. KAPADIA AND B. SUDERSHAN REDDY, JJ.
Civil Appeal No. 936 of 2006*, D/- 30 -4 -2008.
Reliance Infocomm Ltd. v. Bharat Sanchar Nigam Ltd. and Ors.
Telecom Regulatory Authority of India Act (24 of 1997), S.13 - Telecommunication
Interconnection Usage Charge Regulation (2003), Regn.2(xxviii) - TELECOM - Limited
Mobility Service (WLL(M)) - "Unlimited Cordless service" provided by appellant
providing Fixed Wireless Access (FWA) - Is WLL(M) service - Appellant liable to pay
Access Deficit Charges (ADC) - Plea that TRAI has re-classified FWA service by
prescribing premises specific restriction (PSR) - Not tenable.
@page-SC2534
The "unlimited cordless service" provided by appellant, providing Fixed Wireless Access
(FWA) service falls within the definition of "Limited Mobility Service" (WLL(M)) as
defined in Regns. of 2003. The appellant is therefore, liable to pay Access Deficit
Charges (ADC) to B. S. N. L. (Paras 36, 42)
The plea of the appellant service provider that TRAI vide its Circular D/- 4-3-2005
prescribed Premises Specific Restrictions (PSR) on Fixed Wireless Access (FWA) service
and this amounts to reclassification of WLL (F) as Limited Mobility Service (WLL(M))
is not tenable. Every service provider knew the difference between fixed wireline and
three types of wireless services, namely, FWA, limited mobility and full mobility. Further,
these three categories of wireless services constitute a condition of Unified Access
Service Licence (UASL).
The categorization is done in the UASL dated 20-7-2001. The classification has taken
place in the licence and the follow up regarding chargeability of Interconnection usage
charges (IUC) and Access deficit charges (ADC) is under the Regulations made by TRAI.
Therefore, there is no merit in the submission by appellant that by the said circular dated
4-3-2005 TRAI has classified /reclassified the impugned service as WLL (M). (Paras
20, 21)
In services, wireless access is intended as a cheap cable replacement, without additional
features. The classic example of such service is FWA. Such system is cost-effective, as
the infrastructure is cheaper than laying of new wired connection. The point to be
emphasized is that FWA is a service where wireless access is intended as cheaper cable
replacement without additional features. Mobility is an inherent feature of most wireless
systems and has important consequences for system design. It is there in FWA, but if it
exceeds the premises of the subscriber for ADC purpose it becomes classifiable as WLL
(M). (Para 23)
The UAS licence refers to three categories of wireless services, namely, FWA service,
limited mobility service and full mobility service. The payability of the ADC as per the
regulations is directly related to the nature of the service and not to the instrument. In
case of FWA, the antenna in the instrument and the enduser termination point location
wise remains fixed. The network access point remains connected to the end-user in FWA.
The test to be applied to distinguish WLL (F) from WLL (M) is that if the impugned
service cannot be restricted to the place of the subscriber then such service has to be
classified as WLL (M) for the purposes of ADC. In the present case, the impugned
service cannot be technically confined to the premises of the subscriber. The impugned
service cannot comply with PSR. Therefore, it has to be classified as WLL(M) service for
ADC purposes. Both in terms of technology and in terms of policy framework, in the
matter of ADC payability, the classification of wireless services into three categories,
namely, FWA, limited mobility and full mobility was well known to service providers
both under IUC Regulation, generic requirements, TEC's recommendations and even
telecommunication technology. The impugned decision of TRAI dated 4-3-2005 and the
decisions of DoT dated 23-3-2005 and 26-8-2005 respectively cannot be said to be
unilateral decisions regarding classification. The circular dated 4-3-2005 issued by TRAI
is clarificatory and not amendatory. (Paras 30, 31, 42, 43)
Gopal Subramanian, ASG, P. P. Tripathi, ASG, K. K. Venugopal, J. J. Bhat, Rakesh

Dwivedi, Dr. A. M. Singhvi, Sr. Advocate, Ms. Anjali Chandiyalker, Ms. Manali Singhal,
K. Raj, Gopal Sankaranarayan Abhijat P. Medh, Maninder Singh, Mrs. Pratibha M.
Singh, Gaurav Sharma, Suneet Bhatia, Mrs. Surabhi Mehta, Yoginder Handoo, Tejveer
Bhatia, Sanjay Kapur, Ms. Shubhra Kapur, Rajiv Kapur, Ms. Arti Singh, Manjul Bajpai,
Amit Bhandari, Arun Dhillon, Ms. Ritika Chawla, Viraj Kadam, Navin Chawla and Mrs.
Anil Katiyar, for the appearing parties.
* From Judgment and order of Telecom Disputes Settlement and Appellate Tribunal New
Delhi (TDSAT) in Petn. No. 108 OF 2005, D/- 17-1-2006.
Judgement
KAPADIA, J. :- This civil appeal is filed under Section 18 of Telecom Regulatory
Authority of India Act, 1997 ("1997 Act") by M/s. Reliance Infocomm Ltd. against
judgment and order delivered by Telecom Disputes Settlement and Appellate Tribunal
("TDSAT") dated 17.1.2006 dismissing petition No. 108 of 2005 challenging the
directive dated 4.3.2005 by the Telecom Regulatory Authority of India ("TRAI"),
circulars dated 23.3.2005 and 26.8.2005 issued by DoT and demands raised by BSNL for
ADC for the period 14.11.2004 to 26.8.2005.
2. The short question which arises for determination in this civil appeal is whether
"Unlimited Cordless" service" ("the impugned
@page-SC2535
service" for short) of the appellant is covered under the definition of WLL(M) service as
defined in Regulation 2(xxviii) of the Telecommunication Interconnection Usage Charges
Regulation, 2003 which defines WLL(M) as limited mobility service using WLL
technology within Short Distance Charging Area ("SDCA"). According to TRAI and
DoT, fixed wireless phones ("FWP")/fixed wireless service ("FWS") which operate
beyond the subscriber's premises is classifiable as WLL(M) service for the purpose of
payment of ADC to BSNL whereas, according to the appellant, FWS is limited to one
base transceiver station ("BTS") within which the service operates and, consequently, this
service is classifiable as WLL(F) and not as WLL(M).
Facts :
3. On 18.3.1997, appellant was granted licence by DoT for providing basic services in
Gujarat which included fixed wireless services but which preferred wireless technology
for the subscriber local loop. On 20.7.2001 appellant was granted licence by DoT for
providing basic services in different service areas in the country which included fixed
wireline service and limited mobile service. In November, 2003 appellant was permitted
to migrate to the Unified Access Service Licence ("UASL") which categorized wireless
services into 3 categories, viz., fixed wireless access ("FWA"), limited mobility
[WLL(M)] and fully mobile service (s).
Submissions of Shri K. K. Venugopal, learned senior counsel for the appellant:
4. According to the appellant, in November, 2003 appellant was permitted to migrate to
UASL under which appellant was permitted to provide following services: (i) Fixed
Wireless (ii) FWA (iii) WLL(M) (iv) Fully Mobile Service. According to the appellant,
ever since its migration to the UASL, it has been operating fixed services including FWA
and full mobile services. The appellant was not operating WLL(M). According to the
appellant, "limited mobile service" has been defined in UASL granted by DoT and in the
IUC Regulation 2003 framed by TRAI under Section 11 of the 1997 Act as a service
which enables operations throughout a SDCA. At this stage, it may be noted that the
whole of Delhi is one single SDCA. That, appellant was, therefore, operating its FWA
service within the area of one Base Transceiver Station (BTS).
5. According to the appellant a BTS is necessary wherever there is a congested area, like
Chandni Chowk where digging for laying an optical fibre cable is not feasible and, in
such a case, a BTS has to be set up where wireless link has to be established between the
telephone exchange and the BTS which in turn could be accessed by telephone receiver
set through Radio Frequency ("RF") signals. However, according to the appellant, in the
case of full mobile cellular services, several BTSs. are required to be set up by each
service provider in the entire service area for transmitting signals to the terminals
(handsets). That, these handsets are required to be aligned electronically to a single BTS
or the handset could access RF signals from other base stations BTSs. from any part of
the SDCA. According to the appellant, in case of full mobility, the signals are available in
the entire service area (a telecom circle equivalent to a State). Therefore, according to the
appellant, fixed wireline service being a wireline service alone stood restricted to the
subscriber's premises as is clearly understood even under the UASL whereas WLL(M) is
defined specifically, both in the UASL as well as in the IUC Regulation 2003, as a service
where mobility is restricted to the SDCA. That, in the IUC Regulation 2003, FWA
[WLL(F)) service has been treated as part of the fixed services. Therefore, according to
the appellant, its "unlimited cordless" service ("impugned service" for short) stood
classified right from the inception as WLL(F). According to the appellant, FWA service is
a wireless service, mobility is inherent in such services but that mobility is not meant for
the entire SDCA as in that event such mobility would fall in the category of WLL(M)
and, therefore, according to the appellant, FWA service logically stands between a fixed
wireline service restricted to the subscriber premises and WLL(M) where mobility is
within the SDCA.
6. According to the appellant, the said logical concept was known to DoT and TRAI right
from inception, that the technical and statutory authority understood the said concept with
regard to FWA clearly to mean as restricted to one BTS and that it is in this context that
the mobility of the appellant's phone is available in the restricted area of one BTS and not
within the entire SDCA. That, this is the reason why even the DoT specifically inquired
from the appellant vide
@page-SC2536
letter dated 31.1.2005 (in the context of alleged violation of licence condition on account
of certain advertisements issued by the appellant) as to whether the mobility of the
appellant's phone stood limited to one BTS area or whether it is available in the area
outside one BTS. This letter of DoT is relied upon by the appellant to show that right
from 1997 upto 31.1.2005, DoT and TRAI understood FWA services as having mobility
limited to one BTS area alone. According to the appellant, it is in the above context that
even the TRAI in its Consultation Paper dated 17.3.2005 categorically stated that its
intention was to permit mobility only within the coverage of RF sector of one BTS, in the
area where the subscriber is registered and not to the areas which are covered by other
base stations. According to the appellant, throughout the period 2003 till 4.3.2005 its
service was accepted as a fixed wireless access service ("FWA service") and that only
because of the advertisement issued by the appellant in January, 2005 that BSNL
complained to the TRAI and to the DoT. The said advertisement was regarding Unlimited
Cordless. According to the appellant, TRAI called upon the appellant vide letter dated
6.1.2005 not to advertise its impugned FWA service as "unlimited cordless". That in the
said letter dated 6.1.2005 TRAI did not call upon the appellant to answer the question as
to whether impugned service is available within the entire SDCA or within one RF sector
of BTS. According to the appellant, such a question was not even raised by DoT in its
letter dated 31.1.2005 by which only a limited clarification on the "numbering scheme"
for the impugned service was asked for. That query was as follows :
"Whether fixed wireless terminal could be authenticated by BTS terminals other than by
BTS serving the location of the subscriber as on 10.1.2005"
7. According to the appellant, the impugned letter of TRAI dated 4.3.2005 is an
aberration for the simple reason that having accepted the impugned service as FWA as
restricted to one BTS, it directs all access providers to strictly ensure that the terminal
used for FWA confined to the subscriber's premises. That, having said so, TRAI thereafter
hastened to refer to a question in the Consultation Paper of TRAI dated 17.3.2005 in
which, after referring to the complaint of certain operators, TRAI stated that it had asked
all service providers on 4.3.2005 that Fixed Wireless Terminals ("FWTs.") should provide
services to the subscriber at the fixed address only, the intention being that these phones
should not be in a position to offer mobility through other base stations located in other
parts of the city and that the impugned service needs to be allocated to a particular RF
sector of a single base station, otherwise issues of ADC and comparison with limited or
full mobility may take place. According to the appellant, the above statement of TRAI
itself suggests that FWA services are those which are limited to one BTS. According to
the appellant, therefore, even as late as 4.3.2005 TRAI understood the concept of FWA
service as limited to one base station within the SDCA. Therefore, according to the
appellant, the decision of TRAI dated 4.3.2005 is an aberration. That the said decision
was taken unilaterally and at the behest of BSNL without examining the merits of the
contentions advanced by the access providers like Reliance Infocomm Ltd. According to
the appellant, it was a unilateral decision to confine FWA services to the premises of the
subscriber. According to the appellant, in any event, when the matter was a part of the
Consultation Paper dated 17.3.2005 it was not open to TRAI to unilaterally issue such a
direction restricting FWA services to the premises of the subscriber.
8. According to the appellant, BSNL could not have made demand on it for payment of
ADC during the period 14.11.2004 to 26.8.2005 as it was admitted by TRAI and DoT
that no ADC is payable on FWA services. In this connection, according to the appellant,
one of the questions posed for consultation in Para 2.7 was "what criteria should be
determined with regard to the range and portability mobility of WLL(F)'s subscriber
terminals". According to the appellant, the said query itself indicates that the issue as to
the range of portability/mobility of WLL(F) was pending in the consultation process and,
therefore, BSNL could not have raised a demand on the appellant for ADC when the
matter was sub-judice. According to the appellant it is this demand of BSNL which made
the appellant move TDSAT for settlement of dispute.
9. According to the appellant, circumstances mentioned above clearly indicates that in
2005 upto 4.3.2005 both DoT and TRAI understood FWA services as limited to
@page-SC2537
one BTS and the decision dated 4.3.2005 given by TRAI is a unilateral decision imposing
Premises Specific Restriction ("PSR") for the first time at the behest of BSNL. Further,
according to the appellant, in the petition before TDSAT, the appellant has specifically
posed a vital question for consideration, namely, whether the impugned service provided
by the appellant should be restricted within one BTS and if so whether such service will
fall in the category of WLL(F) or WLL(M) service. According to the appellant, TDSAT
has not answered this question. Apart from the said question, appellant had also raised
other questions such as whether the impugned directive of TRAI dated 4.3.2005 and the
clarification dated 23.3.2005 by DoT for the first time introducing the concept of PSR
would amount to amendment of the licence conditions without following the consultation
process as stipulated under the 1997 Act. Similarly, one more question was also raised
before TDSAT as to whether directive dated 4.3.2005 was legally valid. According to the
appellant, none of the said important questions have been answered by the impugned
decision of the TDSAT and, therefore, the said decision needs to be set aside. According
to the appellant, the said questions ought to have been decided by a statutory body
consisting of technical members, particularly to analyse the above mentioned various
submissions raised by the appellant.
10. According to the appellant, nowhere in the pleadings of BSNL, the issue that a
WLL(F) is a service where an antenna is fixed at the top of the house connected by the
wire to the handset plugged into the wall has been raised. That the said technology has
not been discussed even by TDSAT in its impugned judgment. According to the
appellant, the literature on this point is confusing. That, there is no affidavit to support the
claim of BSNL that FWA service is one where an antenna is fixed at the top of the house
connected by wire to the handset plugged into the wall and, therefore, this aspect needs to
be considered by a statutory body of technical members alone. In this connection,
appellant alleges that even today the affidavit of BSNL do not answer the questions posed
by the appellant as to how many of their fixed wireless terminals were with the roof-top
antenna and what numbering plan was followed by BSNL for their FWT and LL(M).
Appellant alleges that an inference may be drawn of admission on the part of BSNL that
it had 16,00,000 fixed wireless terminals which are similar to the fixed wireless
telephones of the appellant as there is no denial regarding allegation made in this
connection by the appellant.
11. Lastly, it is the case of the appellant that the levy of ADC is a matter of tax policy
and, therefore, any provision relating to a charge has to be strictly interpreted. According
to the appellant different stands taken by the authorities show that the issue as to what is
WLL(F) falls in a grey area and, therefore, no ADC can be charged from the appellant.
That, the said question has not been decided even by TRAI. That, the IUC Regulation
2003 are statutory in nature; they have been enacted under Section 36 of the 1997 Act;
that the regulations having been tabled before both the Houses of Parliament cannot be
altered or modified by circulars/ letters/administrative directions issued by the Authorities
under the 1997 Act including the TRAI.
Contentions of Shri Gopal Subramanium, learned senior counsel for BSNL
12. According to BSNL, the appellant's service under the name "unlimited cordless" is a
WLL(M) (wireless local loop mobile service) as admittedly the said service is capable of
being operated outside the subscriber's premises and within the SDCA. That the said
service is squarely covered by the definition of WLL(M) as defined under clause
2(xxviii) of the IUC Regulation 2003. According to BSNL, appellant has attempted to
evade its liability of paying ADC to BSNL despite providing WLL(M) services in the
garb of WLL(F). With regard to payment of IUC charges including ADC by WLL service
which contains a feature of "mobility", the TRAI issued clarification dated 4.3.2005
based on exclusive definition of WLL(M) in its IUC Regulation 2003. According to
BSNL, any WLL service which gives the facility of mobility beyond the premises of the
subscriber and within SDCA has to be treated as WLL(M) in respect of liability to pay
the ADC in accordance with the provisions of the IUC Regulation 2003. According to
BSNL, subsequent to the Consultation Paper dated 17.3.2005, the TRAI reiterated vide
communications dated 24.3.2005 and 31.5.2005 addressed to the appellant herein that the
WLL service operating beyond the premises of a subscriber and within the SDCA is to be
treated as WLL(M) for all purposes
@page-SC2538
including payment of IUC/ADC and numbering plan etc.
13. On the technology side, it is the case of BSNL that payment of IUC/ADC has nothing
to do with the nature of the instrument and it is the nature of service which is relevant for
that purpose. That "unlimited cordless" is the service which is provided through a
handheld terminal.
14. On the point of reliance placed by the appellant upon para 2.26 of the Consultation
Paper it is submitted by BSNL that the Consultation Paper was only a suggestive
approach. That, in any case, the question falling in consultation process was whether
ADC is payable to the fixed wireless terminals. What is WLL(F) and what is WLL(M)
was not the question pending in the consultation process. According to BSNL, in any case
the question whether ADC is payable to the fixed wireless terminals was part of the
explanatory memorandum to the IUC Regulation dated 6.1.2005 itself and, therefore, it is
the case of BSNL that Para 2.26 of the Consultation Paper relied upon by the appellant
was merely a suggestive approach for the future payment of ADC on WLL phones.
15. According to BSNL, there is no merit in the contention of the appellant that its
impugned service is restricted to one BTS/ RF centre as the same is not technologically
possible. In this connection, it is submitted on behalf of BSNL that BTS has only a
receiver and a transmitter. It has no Intelligent Network ("IN"). The function of the BTS
is different from the functionality of Mobile Switching Centre ("MSC"). The utility of the
BTS is that it receives the signals and forwards the same to the MSC. The MSC is the
intelligent part of the network. BTS is not the intelligent part of the network. Registration
of the numbers to be served by the service provider is an element of the intelligent
network. Identification of the caller is done by the intelligent network. Therefore,
according to BSNL, it would be incorrect to say that a BTS has some sort of mechanism
to identify the caller and to further forward the call to the MSC. Therefore, MSC is the IN
and BTS is only the transceiver (i.e. receiver and transmitter). That, the role of a base
station vis-a-vis that of a MSC is, therefore, distinct and separate. According to BSNL,
there is no plea even in the petition that appellant can restrict the mobility of its service to
one RF of a base station and that the services of the appellant is operable only in 1/3 of
one base station zone. According to BSNL, the mobility of the service impugned cannot
be restricted to the premises of the subscriber and, therefore, it has to be treated as
WLL(M). This is borne out, according to BSNL, from the opinion of the manufacturers
of the equipment of the appellant which clearly imports an admission of the appellant that
to restrict the impugned service to the premises of the subscriber would be impractical
and if it is so restricted it would adversely impact its quality. That, in any event, the
impugned service is actually found to be operable throughout the SDCA and, therefore, it
is a WLL(M). Therefore, according to BSNL, appellant was liable to pay ADC as per the
rates prescribed by TRAI in its regulations.
16. According to BSNL, the directive/ communication dated 4.3.2005 issued by the TRAI
only reemphasises the position mentioned in the IUC Regulation dated 29.10.2003,
namely, that a fixed wireless terminal, if not confined to the premises of the customer,
will invite mobility within SDCA which in turn would attract ADC charges on such
services. Further, according to BSNL, under the terms and conditions of licence issued by
DoT, the appellant had agreed to comply with the relevant International Telecom Union
("ITU") standards as also the TEC's specifications. That, even according to the generic
requirements issued by TEC, the remote station of the subscriber had to be "fixed indoor
wall mounted". That even as per the recommendations of the ITU, the FWA has to be a
Wireless Access Application in which the location of end-user termination and the
network access point to be connected to the end-user are fixed. According to BSNL, this
technical information is well known and the appellant is fully aware of the concept of
FWA. According to the appellant, the IUC Regulation 2003 provides for payment of IUC
including ADC for telecommunications services. The definition of WLL(M) is provided
for in clause 2(xxviii) which refers to limited mobility services using wireless in local
loop technology within SDCA. That, Schedule III of IUC Regulation 2003 refers to
service and not to instrument and makes ADC applicable for different types of calls and,
therefore, the payability of ADC as per the regulations is directly related to the nature of
the service and not to any kind of instrument.
@page-SC2539
17. According to BSNL, there is no merit in the submission of the appellant that DoT has
reclassified the impugned service as WLL(M) as, according to BSNL, it has been made
clear by the DoT on numerous occasions that if the impugned services cannot be
restricted to the premises of the subscriber, it will be treated as WLL(M) for levy of ADC.
That, what is clarified by TRAI and DoT is that those WLL services which operate
beyond the premises of the subscriber and within the SDCA shall be treated as WLL(M)
for all purposes including numbering plan, payment of IUC, payment of ADC etc.
Therefore, according to BSNL, the "unlimited cordless" service of the appellant is
squarely covered by the definition of WLL(M) in clause 2(xxviii) of the IUC Regulation
2003 which defines WLL(M) phones as WLL(F) which operates within SDCA.
Therefore, according to BSNL there is no merit in this civil appeal and the same deserves
to be dismissed with costs.
Finding :
18. Regulatory regime includes methodology for calculating access deficit. Access deficit
is to be funded through access deficit charge. Access deficit has to be calculated
according to a formula which provides a reasonable return on the investment made, i.e., a
return on capital employed. IUC/ADC is part of revenue regime. It is for TRAI to
consider the framework used for calculating IUC/ADC. Costing is one of the important
relevant factors to be kept in mind while calculating IUC/ADC. While doing so, the
TRAI has also to keep in mind changes in technology and reduction in costs both of
services as well as of equipment. ADC is a subsidy. It is given to BSNL to incur
additional capital expenditure for rolling out telecom network in rural areas equivalent to
approximately 10 lacs lines at the relevant time. (see : Explanatory Memorandum dated
24.1.2003). Access deficit essentially is to compensate the difference between costs and
local calls revenue. In other words, when costs are more than the revenue, BSNL incurs a
loss which needs to be compensated. It is the additional capital expenditure over local
calls revenue for rolling out telecom network in rural areas which attracts ADC. From
time to time, TRAI has issued IUC Regulations, particularly in the years 2003 and 2005.
These regulations are accompanied by Explanatory Memorandums. ADC has been
specified differently in these regulations for fixed, WLL(M) and cellular mobile calls. In
doing so, the TRAI has kept in mind the fact that standard tariffs have been fixed for
fixed line calls. (see: Table XI in Annexure A which is Explanatory Memorandum dated
24.1.2003). In the said Memorandum, basic principles underlying IUC/ ADC regime has
been laid down. One of the important principles laid down is that ADC shall be funded
from all calls, except fixed to fixed, local etc. We have different types of calls, i.e., fixed
to fixed, fixed to WLL(M), fixed to cellular, WLL(M) to fixed, WLL(M) to WLL(M) etc.
19. The purpose of the above discussion on ADC regime is to highlight the fact that ADC
regime has evolved over a period of time, notified for the first time in the TRAI
Regulation dated 24.1.2003 and reviewed on 29.10.2003 etc. The point to be noted is that
ADC regime right from January, 2003 is a matter of policy framework initiated by TRAI
to promote lower domestic prices, competition and to give rise to strong subscribers
growth. It involves pricing of services like mobile service, fixed service, WLL(M) service
etc.
20. The above discussion is to highlight the difference between concepts evolving in the
technological field which may be relevant but not conclusive in pricing and costing or in
matters of calculation of ADC which, as stated above, constitutes return on capital
employed for BSNL. Therefore, categorization of services for levying a charge by way of
IUC/ADC is a matter of policy and revenue recognition, which is the part of regulatory
regime. If one examines the various regulations made by TRAI from time to time,
including Telecommunication Interconnection (Charges and Revenue sharing) Regulation
2001, WLL(M) stood defined as far back as 14.12.2001 to mean limited mobility
telephony service using wireless in local loop technology within a SDCA. In the matter
of levy of ADC, the Explanatory Memorandums indicate that service providers are well
aware of what is WLL(M), what is WLL(F) and what is cellular mobile service right
from 2001. This point is to be emphasized as it has been vehemently urged on behalf of
the appellant repeatedly that vide circular dated 4.3.2005, for the first time, unilaterally,
the TRAI has prescribed PSR, which amounts to reclassification of WLL(F) service as
WLL(M) service, which, according to the appellant, amounts to an aberration.
@page-SC2540
21. We do not find merit in this contention advanced on behalf of the appellant for two
reasons. Firstly, as stated above, computation of ADC falls within policy framework
which is a part of the IUC Regulations. Every service provider knew the difference
between fixed wireline and three types of wireless services, namely, FWA, limited
mobility and full mobility. Further, these three categories of wireless services constitute a
condition of UAS licence. The categorization is done in the UAS Licence dated
20.7.2001. We find merit in the argument of BSNL that classification has taken place in
the licence and the follow up regarding chargeability of IUC/ADC is under the
Regulations made by TRAI. Therefore, we find no merit in the submission advanced on
behalf of the appellant that by the said circular dated 4.3.2005 TRAI has
classified/reclassified the impugned service as WLL(M). Secondly, in this judgment, we
propose to examine several references in technological domain, which bring out the
difference between WLL(F) service and WLL(M) service.
22. At the outset, in the context of technology, we may point out that licence does not use
the word 'WLL(F)'. The said licence uses the words FWA, limited mobility and full
mobility. Mobility is a service feature. This aspect needs to be kept in mind. In this case,
we are not concerned with the type of instrument, we are concerned with the nature of the
services provided by a given instrument, be it, a walky or a handset of the appellant.
23. The design of a wireless system does not only aim to optimise performance for
specific applications, but also at reasonable cost. Therefore, economic factors impact the
design for wireless system. When it comes to the design of wireless systems and services
we have to distinguish between two different categories. "Systems" where the mobility is
of value by itself e.g., in cellular telephony. Such services can charge a premium to the
customers i.e., more expensive than wired systems. In cellular telephony, the per-minute
price was higher than the landline telephony in the past. However, in the second category,
we have "services" in contradistinction to system. In services, wireless access is intended
as a cheap cable replacement, without additional features. The classic example of such
service is FWA. Such system is cost-effective, as the infrastructure is cheaper than laying
of new wired connection. The point to be empha sized is that FWA is a service where
wireless access is intended as cheaper cable replacement without additional features.
Mobility is an inherent feature of most wireless systems and has important consequences
for system design. It is there in FWA, but if it exceeds the premises of the subscriber for
ADC purpose it becomes classifiable as WLL(M).
24. In the light of the above discussion and in the context of technology, we must now
understand what is FWA. This concept is mentioned as a service in the UAS Licence
dated 20.7.2001. It is necessary to understand this concept as one of the main contentions
advanced on behalf of the appellant is that FWA is the service which is restricted to one
BTS alone. Therefore, it is necessary to know what is BTS, Exchange Numbering Plan
and MSC in the context of their functionalities.
25. By way of introduction, it may be stated that in 1990 FWA and wireless local loop
(WLL) came into the market to replace the copper lines to the premises of the users by
wireless links but without the specific benefit of mobility, the original motivation for
WLL was to give access to customers for alternative providers of phone services
bypassing the copper lines. However, since 2003 several developments led to wireless
revival as it gave broader range of products, data transmission with a higher rate for
existing products and higher user densities.
26. Briefly, we may state that the wireless services consist of broadband, paging, cellular
telephony, cordless telephony, FWA, satellite cellular communications etc. It may be
noted that wireless systems, however, differ in the amount of mobility that they have to
allow for the users. In cellular telephony, a mobile user communicates with a base station
that has a good radio connection with the user. The base stations, however, are connected
to Mobile Switching Centre ("MSC") which in turn are connected to public telephone
system. In the cellular principle, the area served by a network provider is divided into
cells. In cellular telephony there is unlimited mobility. The user can be anywhere within
the coverage area of the network (i.e., is not limited to a specific cell), in order to be able
to communicate. He can move from one cell to the other during one call. The cellular
network interfaces with
@page-SC2541
Public Switched Telephone Network ("PSTN& quot;).
27. FWA is also one type of wireless service. It is a derivative of cordless phone,
essentially replacing a cable connection between the user and the public landline system.
In FWA there is no mobility of the user device. The purpose of FWA lies in providing
users with telephone and data connections without having to lay cables from its central
switching office to the office or premises of the subscriber. (see : page 14 of the book
entitled "Wireless Communications" by Andreas F. Molisch). FWA has its market for
covering rural areas which do not have wired infrastructure.
28. Mobility is an important requirement for wireless service. The ability to move around
while communicating is one of the main attractions of wireless communications for the
user. However, within that requirement of mobility, different grades exist :
Fixed Devices :
Fixed Devices are placed only once and thereafter they communicate with their BS or
each other from the same location. The main reason for using wireless transmission is to
avoid laying of cables. In the case of fixed devices, the devices are not mobile. FWA falls
in the same category as wired communications (example, the PSTN)
Nomadic Devices :
These are devices that are placed at a certain location for a limited duration of time and
then moved to a different location. Example of nomadic device is a laptop.
Low Mobility :
Many communication devices like cordless phones as well as cell phones are operated by
walking human users. The effect of low mobility is a channel that changes rather slowly,
and it operates in a system with multiple base stations handover from one cell to other is
the rare event.
High Mobility :
Cell phones operated by people in moving cars are one typical example.
Extremely High Mobility :
Extremely High Mobility is represented by high-speed trains and planes.
29. The above analyses indicates that there is no mobility of the user devices in FWA.
Even as per ITU standards, TEC's specifications and generic requirements issued by
TEC, remote station of the subscriber in FWA has to be "fixed indoor wall mounted"
along with other equipments. This is the basic TEC guidelines for fixed services. The
remote station in FWA has to be wall mounted and fixed. FWA is Wireless Access
Application in which the location of the end-user termination and the network access
point to be connected to end-user are fixed. Therefore, what is WLL(F) was well known
to the service providers both in terms of technology and also in terms of IUC
Regulations.
30. As stated above, the UAS licence refers to three categories of wireless services,
namely, FWA service, limited mobility service and full mobility service. The payability of
the ADC as per the regulations is directly related to the nature of the service and not to
the instrument. In case of FWA, the antenna in the instrument and the end-user
termination point location-wise remains fixed. The network access point remains
connected to the end-user in FWA. The test to be applied to distinguish WLL(F) from
WLL(M) is that if the impugned service cannot be restricted to the place of the subscriber
then such service has to be classified as WLL(M) for the purposes of ADC. In the present
case, the impugned service cannot be technically confined to the premises of the
subscriber. The impugned service cannot comply with PSR. Therefore, it has to be
classified as WLL(M) service for ADC purposes.
31. To sum up, in WLL(F) the telephone is the access point if the antenna is in-built in the
telephone. If the impugned service is operable throughout SDCA it is WLL(M). In
WLL(F), location of end-user termination and the network access point to be connected
to the end-user are fixed. If the impugned service cannot comply with PSR it is
classifiable as WLL(M) for IUC, ADC, Numbering Plan etc. Lastly, the only difference
between fixed wireline and WLL(F) is that WLL(F) is a cheap cable replacement without
additional features. WLL(F) is limited to specific premises of the subscriber or permanent
location.
32. One aspect on technology needs to be explained. BTS is different from MSC in terms
of functionality. The function of BTS primarily is confined to transmission and
communication. On the other hand, MSC is an exchange. Two databanks exist in the
MSC, namely, Home Location Register ("HLR") and Visitor Location Register ("VLR").
@page-SC2542
HLR is a central data base that keeps track of the location a user is currently at; the VLR
is a data base associated with a base station that knows all the users that are currently
within the coverage area of a specific base station. If a mobile station moves across a cell
boundary, a different base station becomes the serving BS. In other words, the MS is
handed over from one base station to another without interrupting the call. This process is
known as "Handover", (see : page 34 of the book entitled "Wireless Communications" by
Andreas F. Molisch under the caption "User Mobility".) The important thing to be noted
in this case is we are basically concerned with the levy of ADC charge on a given call.
The identity of the call and the caller is checked not by the base station but by the MSC.
The Numbering plan is also in MSC and not in the BTS. In this case, we are not
concerned with the communication linkage between MSC and BTS. In this case, we are
essentially concerned with the existing service in MSC on the basis of which a charge
could be levied depending on the type of the originating call. If a Walky call is to be
classified as FWA service then the integrity of the Numbering plan would stand infringed.
The Numbering plan is co-related to the Database in the MSC. It is for this reason that we
have examined the differences in the services, namely, cellular, cordless, FWA etc. It is
for this reason that we have analysed the types of devices, namely, fixed device, nomadic
device, low mobility, high mobility etc. In our view, MSC is the intelligent network and
BTS is only a receiver and transmitter. The function of BTS is to receive the signals and
forward the same to the MSC. MSC is the intelligent part of the network. MSC has the
registration of numbers to be served by the service provider, the mechanism to identify
the caller is not with the BTS. HLR is the primary database for all subscriber information.
VLR is a network entity whose main function is to provide service to subscribers who are
served from a different HLR. The MSC communicates with the VLR to obtain subscriber
information to support call processing. The VLR gets its information about visiting
roamers from HLR., (see : "Wireless Intelligent Networking" by Gerry Christensen, Paul
G. Florack and Robert Duncan at p. 77). According to Wikipedia, Fixed Wireless
Terminal ("FWT") units differ from conventional mobile terminal units operating within
cellular networks - such as GSM - as FWT or desk phone is limited to a permanent
location. Therefore, all the above literature and reference books indicate that FWA is a
service which is limited to permanent location. The significance of FWA is that it
dispenses with the last mile wireline connectivity and to that extent it is cost effective.
The wireless access point is a device that connects wireless communication devices
together to form a wireless network. Wireless Access Point ("WAP") usually connects to
a wired network, (see : Wikipedia)
33. According to What is corn's 'Encyclopedia of Technology Terms' the term 'fixed
wireless' refers to the operation of wireless devices or systems in fixed locations such as
home and offices. They derive their electrical power from the utility mains, unlike mobile
wireless or portable wireless which are battery-powered. Although mobile and portable
system can be used in fixed locations, their efficiency is compromised when compared
with fixed systems. One of the important assets of fixed wireless that subscribers in
remote areas can be brought into a network without the need for new cables or optical
fibres across the country side.
34. The difference in the functionalities of a base station and MSC is brought out in the
book titled "Location-Based Services-Fundamentals and Operations" by Axel Rapper. A
network consists of several access networks, which include the radio equipment that is
necessary to interconnect a terminal to the network. The access networks in turn are
interconnected by the core network. In GSM network, the access network is different
from the core network. In GSM, for example, the excess network consist of two
components, namely, BTS and BSC (base station controller). Allocation and release of
channels is done by BSC. It is BSC which is responsible for control of handover, a
function which is needed to keep a circuit switched connection, particularly if the
subscriber moves between base stations. Therefore, each BSC controls several BTSs,
which are connected to the BSC via fixed lines or radio link systems. On the other hand,
MSC connects a number of BSCs to the network. It is responsible for serving a limited
geographic region, which is given by all base stations connected to the MSC over their
BSCs. In other words, MSC is part of the core network. It is not a part of access network.
The intelligent network is in MSC.
35. In the book titled "From WPANs to
@page-SC2543
Personal Networks - Technologies and Applications" by Ramjee Prasad and Luc Deneire,
the main purpose of FWA is to provide network access to buildings through exterior
antennas communicating with central radio base stations.
36. In our view, the above discussion indicates that both in terms of technology and in
terms of policy framework, in the matter of ADC payability, the classification of wireless
services into three categories, namely, FWA, limited mobility and full mobility was well
known to service providers both under IUC Regulation, generic requirements, TEC's
recommendations and even under telecommunication technology. Therefore, there is no
merit in the contention advanced on behalf of the appellant that the impugned decision of
TRAI dated 4.3.2005 and the impugned decisions of DoT dated 23.3.2005 and 26.8.2005
respectively are unilateral decisions regarding classification. In our view, circular dated
4.3.2005 issued by TRAI is clarificatory and not amendatory. There is no merit in the
contention of the appellant that ADC cannot be charged retrospectively. There is no
retrospectivity involved in the present case. The classification of services was done under
the UAS licence and the chargeability/payability was fixed under the IUC as far back as
2003. The reasons given hereinabove, both in terms of technology and also policy
framework are in addition to the reasons given by TDSAT in its impugned judgment. We
find no infirmity in the impugned judgment of TDSAT.
37. Before concluding on this topic, we may state that, in the light of our above
discussion we find no merit in the argument of the appellant that mobility within one
BTS is a category by itself. If that argument is to be accepted we are carving out one
more category of service which is impermissible. In any event, it is technically not
possible as it would deteriorate the quality of service. Under the UAS Licence, the three
services are Fixed Wireless/WLL(F), WLL(M) and Cellular Mobile.
38. One of the contentions raised on behalf of the appellant is that of abandonment of the
theory/test of PSR by TRAI. According to the appellant, the above test formulated by
TRAI in its directive dated 4.3.2005 stood later on abandoned by TRAI and in that
connection appellant has placed reliance on para 2.26 of the Consultation Paper. As stated
above, PSR stands for Premises Specific Restrictions.
39. We find no merit in this argument. For the sake of convenience, we quote here in
below para 2.26 of the Consultation Paper on Interconnection Usage Charge Review,
which reads as follows :
"C.Whether ADC should be Admissible for Wireless Access?
2.26 For ADC purpose, presently calls to/from WLL(F) are being treated similar to calls
to/from fixed lines. TRAI received complaint from a certain Operator Association which
stated that 'Fixed wireless services being provided by the FSPs/UASL's are classified as
fixed services and thus entitled to ADC. However these services are for all intents and
purposes tantamount to full cellular services and can be offered seamlessly throughout
the service area. This creates a non-level playing field and competitively disadvantages
the cellular operator vis-a-vis the fixed wireless service provider.' The Authority has very
recently asked all Service Providers that FWTs should provide services to the subscriber
at the fixed address only, the intention being that these phones should not be in a position
to offer mobility through other Base Stations located in other parts of the city. Service
needs to be locked to a particular RF Sector of a base station, otherwise issues of ADC
and comparison with Limited or full mobility takes place."
The said para 2.26 is in two parts. Firstly, it refers to a complaint from certain Cellular
Operator Association, which stated that, in many cases fixed wireless services are being
provided by fixed service phones (operators) which services for all practical purposes
tantamount to full cellular services and thereby they create a non-level playing field vis-
a-vis the cellular operators. This was the complaint from the cellular operators against
fixed wireless service providers. Under the consultation process, whenever such
complaints are received by TRAI they are required to be addressed to. Therefore, a
response was sought by TRAI from fixed wireless service providers to the above
complaint. The Consultation Paper is dated 17.3.2005. By that time, the impugned
directive dated 4.3.2005 had been issued by TRAI. Referring to the said directive, in para
2.26, the TRAI had stated, in the first instance, that all fixed wireless service providers
have been informed by the said directive that fixed wireless terminals should provide
services to the subscribers at the
@page-SC2544
fixed address only so that the said fixed wireless te rminals/phones should not be in a
position to offer mobility through other base stations located in other parts of the city.
This underlined portion is emphasized by the appellant to support its contention that
TRAI has in its Consultation Paper dated 17.3.2005 accepted the stand of the appellant
that FWA services should be restricted to one base station and not to the subscriber's
premises. The appellant has placed heavy reliance on this underlined portion in support of
its contention that vide Consultation Paper dated 17.3.2005, the TRAI has abandoned the
premises theory mentioned in directive dated 4.3.2005. According to the appellant, the
next sentence in para 2.26 is equally important. That sentence reads as follows :
"Service needs to be locked to a particular RF Sector of a base station, otherwise issues of
ADC and comparison with limited or full mobility takes place."
40. According to the appellant, reading the above two sentences in para 2.26 of the
Consultation Paper, it is clear that TRAI gave up the premises theory on 17.3.2005 and
has accepted the contention of the appellant that FWA services stand restricted to one
base station and not to the premises of subscriber.
41. As stated above, we find no merit in these arguments on abandonment. Firstly, in our
view, para 2.26, quoted above, has a headnote. That headnote, quoted above, indicates the
question raised before TRAI during the consultation process. The question was whether
ADC was admissible for wireless access? In this connection it may be stated that at one
point of time, the idea mooted was that all fixed service providers, including BSNL, were
entitled to ADC. This was one of the items on the Agenda on TRAI. It is in this context
that para 2.26 has to be read. If ADC was to be made admissible for Fixed Wireless
services provided by all fixed service phones then the pricing of the product would
become an item of dispute not only between cellular/mobile operators and fixed service
providers but also inter se amongst fixed service providers, i.e., between those who
complied with PSR and those who did not. In fact, but for PSR, the difference between
WLL(F) and WLL(M) would stand obliterated. Therefore, TRAI thereafter referring to its
directive dated 4.3.2005 invited response from service providers to the suggestion of the
appellant that services need to be located to a particular RF Sector of a base station.
Inviting such response cannot be construed as abandonment. Moreover, the later
correspondence indicates that even foreign experts nominated by the appellant have
certified that linkage to a particular RF Sector of the base station would result in
deterioration in the quality of the services provided by the appellant. In our view, the true
test to differentiate between WLL(F) and WLL(M) services is : whether the impugned
service of the appellant is capable of being confined as far as its mobility is concerned to
the subscriber's premises. If not, the impugned service is WLL(M) for levy of ADC.
There is no dispute that the impugned service, as far as its mobility is concerned, cannot
be confined to the premises of the subscriber. In other words, since the impugned service
is not capable of complying with PSR test it is WLL(M).
42. We reiterate that we have examined the policy framework and the technology to
demonstrate that right from inception and, particularly after migration to UAS Licence,
the appellant as a service provider knew the distinction between WLL(F) and WLL(M)
and, therefore, the impugned directive dated 4.3.2005 issued by TRAI was clarificatory in
nature and, therefore, that decision cannot be termed as unilateral decision, as submitted
on behalf of the appellant.
43. One more fact needs to be mentioned that the impugned directive dated 4.3.2005
came to be issued by TRAI after giving show cause notice to the appellant as far back as
15.1.2005. It is true that the show cause notice was given in the context of certain
advertisements given in the newspaper by Tata Tele services Ltd. and by Reliance
Infocomm Ltd. However, vide the said show cause notice(s) the appellant was called
upon to explain why the impugned service is not WLL(M). In fact, a reply was given to
the show cause notice by the appellant on 24.1.2005 which indicates that the appellant
clearly understood the show cause notice and, therefore, gave its explanation as to why
the impugned service should be treated as WLL(F) and why the impugned service should
not be categorized as WLL(M). We may mention that, keeping in mind the technology,
the policy framework and the thrust of the entire correspondence between TRAI, DoT
and the appellant herein, it is very
@page-SC2545
clear that the concept of FWA was well known in the market and in the business right
from 2003 and in that light we hold that the impugned Circular dated 4.3.2005 of TRAI
was clarificatory in nature and, therefore, the demand made by BSNL for the period
14.11.2004 to 26.8.2005 is valid in law and justified in terms of the UAS Licence.
44. As stated in our judgment pronounced earlier in Civil Appeal No. 5850 of 2005 etc. in
the case of Tata Tele services Ltd. v. BSNL and Ors. we are not required to decide in this
case quantification of the amount in question as the claim and counterclaim made by the
appellant herein against BSNL and vice-versa is not the subject-matter of this appeal.
Those questions are left open to be decided in accordance with law at the appropriate
stage by the competent authority under the 1997 Act. Suffice it to state that, the impugned
Circular dated 4.3.2005 issued by TRAI falls under Section 13 of the 1997 Act as
clarification. The reasons given hereinabove are in addition to the reasons given by
TDSAT in its impugned order dated 17.1.2006. We find no infirmity in the reasons given
by TDSAT in its impugned order.
45. Accordingly, the civil appeal is dismissed with no order as to costs.
Appeal dismissed.
AIR 2008 SUPREME COURT 2545 "Machindranath Kernath Kasar v. D. S. Mylarappa"
(From : 2006 (5) AIR Kar R 135)
-2008.
Machindranath Kernath Kasar v. D.S. Mylarappa and Ors.
(A) Motor Vehicles Act (59 of 1988), S.168 - MOTOR VEHICLES - NEGLIGENCE -
Accident claim - Damage caused by negligence on part of driver of offending vehicle -
Said person is primarily held liable - Owner would be liable as he has permitted use
thereof - However, owner and driver are not joint tort-feasors in strict sense of term.
Motor Vehicles Act was enacted to consolidate and amend the law relating to motor
vehicles. When a law is enacted to consolidate and amend the law, the Legislature not
only takes into consideration the law as it has then been existing but also the law which
was prevailing prior thereto. A suit for damages arises out of a tortuous action. For the
purpose of such an action, although, there is no statutory definition of negligence,
ordinarily, it would mean omission of duty caused either by omission to do something
which a reasonable man guided upon those considerations, who ordinarily by reason of
conduct of human affairs would do or be obligated to, or by doing something which a
reasonable or prudent man would not do. When a damage is caused upon act of
negligence on the part of a person, the said person is primarily held to be liable for
payment of damages. The owner of the vehicle would be liable as he has permitted the
use thereof. To that effect only under the Motor Vehicles Act, both driver and owner
would be jointly liable. This, however, would not mean that they are joint tort-feasors in
the strict sense of the term. There exists a distinction between the liability of the owner of
a vehicle which was used in commission of the accident and that of the driver for whose
negligence the accident was caused, but the same would not mean that the owner and the
driver are joint tort-feasors in the sense as it is ordinarily understood.
2003 AIR SCW 5505, Relied on. (Paras 16, 17)
(B) Motor Vehicles Act (59 of 1988), S.168 - Civil P.C. (5 of 1908), O.1, R.10 -
Karnataka Motor Vehicles Rules (1989), R.235 - MOTOR VEHICLES - CIVIL
PROCEDURE - TRIBUNALS - Claim petition - Tribunal is mandatorily required to
specify amount which shall be paid by owner or driver of vehicle involved in accident -
Therefore, driver of vehicle should be impleaded as party in proceeding though he may
not be necessary party. (Para 18)
(C) Motor Vehicles Act (59 of 1988), S.166 - Civil P.C. (5 of 1908), O.1, R.10 -
PROCEDURE - NATURAL JUSTICE - EQUALITY - Claim petition - Impleadment of
party/necessary party - Collision between bus and truck - Two sets of claim cases were
filed by injured parties, one by passengers of bus and other by driver of bus - Finding of
negligence on part of bus driver in first set of claim cases - Bus driver was examined in
former claim even though he was not formally impleaded - Natural justice would
mandate involvement of bus driver in proceedings in view of adverse finding of
negligence against him - He should be made 'party'
@page-SC2546
to proceedings.
AIR 1966 SC 1697, Relied on.
ILR (2000) Kar 3286; 1993 ACJ 1066 (MP); 1995 ACJ 560 (MP), Ref. (Paras 23, 24)
(D) Motor Vehicles Act (59 of 1988), S.166 - Civil P.C. (5 of 1908), O.1, R.10 -
PROCEDURE - NEGLIGENCE - Claim petition - Party to proceeding - Collision
between bus and truck - Separate claim petitions filed by passengers of bus and driver of
bus - Specific allegation made in second set of claim cases against driver of truck -
Without deposition on part of truck driver, adverse finding on negligence cannot be made
against him. (Para 24)
(E) Motor Vehicles Act (59 of 1988), S.168 - MOTOR VEHICLES - TRIBUNALS -
HIGH COURT - APPEAL - Accident claim - Collision between bus belonging to State
Road Transport Corporation and truck - Finding of fact recorded by Tribunal and High
Court that driver of bus alone was negligent - No contrary evidence was adduced by State
Road Transport Corporation - Finding of fact cannot be interfered with.
ILR (2000) Kant 3286 (Ref.) 14, 15, 23
1995 ACJ 560 (MP) (Ref.) 15
1993 ACJ 1066 (MP) (Ref.) 15
AIR 1977 SC 1248 15, 21
AIR 1966 SC 1697 (Rel. on) 21
Kiran Suri, for Appellant; R. S. Hegde, Chandra Prakash, Rahul Tyagi, J. K. Nayyar, P. P.
Singh, D. Varadarajan and Shiv Prakash Pandey, for Respondents.
Judgement
1 .S. B. SINHA, J. :- Leave granted.
2. Appellant was a driver of a bus belonging to the Karnataka State Road Transport
Corporation. He was driving the said vehicle on 18.4.1995. A collision took place
between the said bus and a truck bearing Registration No. CAM 6939. A large number of
passengers travelling in the said bus were injured. Appellant herein was also one of them.
The passengers of the said bus as also the appellant filed applications for payment of
compensation before the Motor Vehicles Accident Claims Tribunal, Belgaum in terms of
Section 166 of the Motor Vehicles Act, 1988 (for short "the Act").
Appellant was also prosecuted for rash and negligent driving before a criminal court. No
such case was initiated against the driver of the truck. The Corporation denied and
disputed the contention of the passengers that the appellant was driving the bus in a rash
and negligent manner.
Appellant examined himself in the other claim petitions in support of the case of the
Corporation. He, however, was not impleaded as a party therein. It is stated that
ordinarily drivers are not impleaded as parties in the claim cases in the State of
Karnataka, purported to be having regard to the provisions contained in Rule 235 of the
Karnataka Motor Vehicles Rules, 1989.
3. Both sets of claim cases were taken up for hearing together by the Tribunal. The
awards were also passed on the same day.
4. In the claim applications filed by the passengers, despite the deposition of the appellant
to the contrary, a finding of fact was arrived at, that he was driving the bus rashly and
negligently.
5. The claim petitions of the passengers were allowed. The Corporation did not challenge
the correctness of the said awards. They attained finality. The Tribunal in the case of the
appellant also went into the question once over again to hold that the accident was caused
owing to the rash and negligent driving of the appellant. It was opined that only because
he had been acquitted of the charges by the criminal court in Section 279 or 338 of the
Indian Penal Code, the same was not conclusive, stating :
"......... It is the version of the petitioner that there was negligence on the part of the truck
driver. But the nature of damage caused to either vehicles does not corroborate the same.
On perusal of Ex. P3 it is mentioned that the front show of the KSRTC bus was
completely damaged, head light radiator and front right driver door damaged, bonnet
damaged in the course of accident. On the other hand Ex. P3 reveals that front right show
damaged, front bumper bent, front right head-light broken, front right wind shield glass
broken, radiator cover damaged. Therefore the nature of damage caused to the truck
reveals unequivocally that only right side portion of the truck was damaged. If really the
truck driver had come on right side from Belgaum to Kanbargi Road
@page-SC2547
and dashed against the KSRTC bus, the middle portion of the truck would have been
damaged. On the other hand, the middle portion of KSRTC bus is damaged as per the
recitals in Ex. P3. Therefore the nature of damages caused to the bus reveals the fact that
it was the bus driver who came towards right side of the Kanbargi Belgaum Road while
overtaking a parked truck. The fact that the bus driver was trying to overtake parked truck
is not in dispute."
6 Tribunal expressly negatived the contention of the appellant that it was the truck driver
who was driving the truck rashly and negligently, stating:
"There was no reason for the petitioner being a driver of the KSRTC bus to take the same
to the extreme right side of the Belgaum Kanbargi Road as to cause accident. It is also
admitted by the petitioner as well as in the petition itself that the KSRTC driver was
trying to overtake a parked lorry. At that time the petitioner being a driver of the KSRTC
should have seen whether there was any vehicle which were coming on opposite
direction at the time of overtaking a parked lorry. It appears that there was negligence on
the part of the KSRTC driver himself, and as such it has to be held that the accident took
place due to the negligence of the petitioner himself. For all these reasons, there is no oral
and documentary evidence on record to prove the fact that the accident took place due to
the negligence of the driver of the truck No. CAM6939. On the other hand the oral
evidence of R.W. 1 coupled with panchanama and photos produced at Ex. R2 and R3
clearly proves the fact that the accident was due to rash and negligence of the petitioner
himself........"
Inter alia on the aforementioned finding the claim petition was dismissed.
7. He preferred an appeal thereagainst in terms of Section 173 of the Act. A Division
Bench of the Karnataka High Court dismissed the said appeal opining that as the
appellant did not question the correctness of the earlier awards passed by the Tribunal
although he was a party aggrieved, he is bound, thereby, as regards to the question of
negligence. The High Court, thus, affirmed the views of the Tribunal,
8. Mr. Kiran Suri, learned counsel appearing on behalf of the appellant submitted;
(i) The High Court erred in holding that although the appellant was not a party in the
proceeding, he was an aggrieved person.
(ii) The Awards passed by the Tribunal in the cases of the passengers were not binding on
the appellant.
(iii) The Tribunal and consequently the High Court committed a serious error insofar as
they failed to take into consideration the panchnama drawn by the police personnel from
a perusal whereof it would be evident that it was the driver of the truck who was rash and
negligent.
9. Mr. D. Varadarajan, the learned counsel appearing on behalf of the respondent
Insurance Company, on the other hand, would submit:
(a) Even in this claim petition, the driver of the truck has not been impleaded as a party.
(b) Both the Tribunal as also the High Court arrived at a finding of fact that the appellant
alone was negligent, and as such the same should not be interfered by this Court
particularly when no evidence was adduced on behalf of the appellant or Corporation to
prove contra.
10. Chapter II of the Act provides for licensing of drivers of motor vehicles. The Central
Government as also the State Government have been conferred powers to make rules
under various provisions of the said Act.
Chapter XI of the Act provides for insurance of motor vehicles against third party risks.
Section 146 providing for necessity of insurance against third party risks is in the
following terms.
"146. Necessity for insurance against third party risk - (1) No person shall use, except as
a passenger, or cause or allow any other person to use, a motor vehicle in a public place,
unless there is in force in relation to the use of the vehicle by that person or that other
person, as the case may be, a policy of insurance complying with the requirements of this
Chapter:
Provided that in the case of a vehicle carrying, or meant to carry, dangerous or hazardous
goods, there shall also be a policy of insurance under the Public Liability Insurance, Act,
1991."
Section 147 provides for the requirements
@page-SC2548
of policies and limits of liability.
Section 149 imposes duties on insurers to satisfy judgments and awards against persons
insured in respect of third party risks.
The insurer having regard to sub-section (2) of Section 149 of the Act would be entitled
to avoid its liability in one of the contingencies specified therein.
Section 149(2)(a) reads thus;
"149(1) * * * * * * * * * *
149(2) * * * * * * * * * * *
(a) that there has been a breach of a specified condition of the policy, being one of the
following conditions, namely:
(i) a condition excluding the use of the vehicle -
(a) for hire or reward, where the vehicle is on the date of the contract of insurance a
vehicle not covered by a permit to ply for hire or reward, or
(b) for organised racing and speed testing, or
(c) for a purpose not allowed by the permit under which the vehicle is used, where the
vehicle is a transport vehicle, or
(d) without side-car being attached where the vehicle is a motor cycle; or
(ii) a condition excluding driving by a named person or persons or by any person who is
not duly licensed, or by any person who has been disqualified for holding or obtaining a
driving licence during the period of disqualification; or
(iii) a condition excluding liability for injury caused or contributed to by conditions of
war, civil war, riot or civil commotion; or
(b) that the policy is void on the ground that it was obtained by the non-disclosure of a
material fact or by a representation of fact which was false in some material particular."
Section 163-A provides for special provision as to payment of compensation on
structured formula basis in the event an accident arising out of the use of motor vehicle
has taken place.
11. Chapter XII provides for constitution of Claims Tribunal. Section 166 envisages filing
of an application for grant of compensation. An application may be filed for payment of
compensation arising out of an accident of the nature specified in sub-section (1) of
Section 165.
Sub section (2) of Section 166 reads as under :
"Section 166. * * * * * (1) * * * * * * * * * *
(2) Every application under sub-section (1) shall be made, at the option of the claimant,
either to the Claims Tribunal having jurisdiction over the area in which the accident
occurred, or to the Claims Tribunal within the local limits of whose jurisdiction the
claimant resides or carries on business or within the local limits of whose jurisdiction the
defendant resides, and shall be in such form and contain such particulars as may be
prescribed :
Provided that where no claim for compensation under section 140 is made in such
application, the application shall contain a separate statement to that effect immediately
before the signature of the applicant."
12. The State of Karnataka in exercise of its rule-making power has made Karnataka
Motor Vehicles Rules, 1989, Rule 235 whereof reads as under :
"235. Notice to the parties involved - (1) The Claims Tribunal shall on an application
made to it by the applicant send to the owner or the driver of the vehicle or both from
whom the applicant claims relief and the insurer, a copy of the application, together with
the notice of the date on which it will dispose of the application, and may call upon the
parties to produce on that date any evidence which they may wish to tender.
(2) Where the applicant makes a claim for compensation under Section 140 the Claims
Tribunal shall give notice to the owner and insurer if any, of the vehicle involved in the
accident directing them to appear on the date not later than 10 days from the date of issue
of such notice. The date so fixed for such appearance shall also be not later than fifteen
days from the receipt of the claim application filed by the claimant. The Claims Tribunal
shall state in such notice that in case they fail to appear on such appointed date, the
Tribunal will proceed ex parte on the presumption that they have no contention to make
against the award of compensation.
13. Rule 232 provides that every application for compensation is to be made by a person
specified in Section 166(1) to the Claims Tribunal in Form KMV 63.
14. Ms. Suri submitted that the Act and the Rules as also the prescribed forms do
@page-SC2549
not require the driver to be made a party and in that view of the matter, Rule 235 should
be read disjunctively. Our attention in this behalf has been drawn to a decision of the
Division Bench of the Karnataka High Court in Patel Roadways and another vs. Manish
Chhotalal Thakkar and others [ILR 2000 Kar. 3286].
15
. The learned Judges in Patel Roadways (supra) opined that when the form of the claim
petition does not require a claimant to even name the driver, a claim petition would be
maintainable even without impleading the driver. Paras 21 and 26 of AIR
The Bench proceeded to consider the general law of tort and the liability of joint tort-
feasors as contained in various text books. The Bench also noticed the decision of this
Court in Minu B. Mehta and another vs. Balkrishna Ramchandra Nayan and Another
[AIR 1977 SC 1248], wherein it was held:
"The liability of the owner of the car to compensate the victim in a car accident due to the
negligent driving of his servant is based on the Law of Torts. Regarding the negligence of
the servant the owner is made liable on the basis of vicarious liability. Before the master
could be made liable it is necessary to prove that the servant was acting during the course
of his employment and that he was negligent ........
This plea ignores the basic requirements of the owner's liability and the claimants' right to
receive compensation. The owners' liability arises out of his failure to discharge a duty
cast on him by law. The right to receive compensation can only be against a person who
is bound to compensate due to the failure to perform a legal obligation. If a person is not
liable legally he is under no duty to compensate anyone else. The Claims Tribunal is a
Tribunal constituted by the State Government for expeditious disposal of the motor
claims. The general law applicable is only common law and the Law of Torts. If under the
law a person becomes legally liable then the person suffering the injuries is entitled to be
compensated and the Tribunal is authorised to determine the amount of compensation
which appears to be just. The plea that Claims Tribunal is entitled to award compensation
which appears to be just when it is satisfied on proof of injury to a third party arising out
of the use of a vehicle on a public place without proof of negligence if accepted would
lead to strange results."
The Kerala, Bombay, Madras, Allahabad, Patna, Punjab and Haryana and Delhi High
Courts, on the one hand, noticing a large number of decisions held that drivers are not
necessary parties, the Madhya Pradesh High Court, on the other hand, in New India
Assurance Co. vs. Munni Devi [1993 ACJ 1066 (M.P.)] and Madhya Pradesh State Road
Transport Corporation Vs. Vaijanti [(1995 ACJ 560 (M.P.)] held that the driver of the
offending vehicle would be a necessary party. The Division Bench of the Karnataka High
Court further held that under the Madhya Pradesh Motor Vehicles Rules, the driver was
required to be impleaded as a party. It was, however, stated :
".......... We do not however agree with the said two decisions, if they were to be read as
laying down a general principle that under Law of Torts, the master cannot be sued to
enforce his vicarious liability for the negligence of the servant, without impleading the
servant."
On the aforementioned finding, the following law was laid down.
"(a) Neither the Motor Vehicles Act nor Rules thereunder require the driver to be
impleaded as a party to the claim petition, (b) Under Law of Torts, the owner and driver
of the Motor Vehicle being joint tort-feasors, who are jointly and severally liable for the
negligence of the driver, the claimant can sue either the owner or the driver or both. But,
whether driver is impleaded or not, a owner (master) can be made vicariously liable for
the acts of his driver (servant), only by proving negligence on the part of the driver
(servant), (c) Therefore a claim petition can be maintained against the owner and insurer
of the vehicle causing the accident, without impleading the driver. However proving the
negligence of the driver is a condition precedent to make the owner vicariously liable for
the act of the driver, (d) But where the driver is not impleaded as a party, no decree or
award can be made against him. A driver can be held liable personally only when he is
impleaded as a party and notice of the proceedings is issued to him."
16
. Motor Vehicles Act was enacted to consolidate and amend the law relating to motor
vehicles. When a law is enacted to consolidate and amend the law, the Legislature not
only takes into consideration the 2003 AIR SCW 5505
@page-SC2550
law as it has then been existing but also the law which was prevailing prior thereto. A suit
for damages arises out of a tortuous action. For the purpose of such an action, although,
there is no statutory definition of negligence, ordinarily, it would mean omission of duty
caused either by omission to do something which a reasonable man guided upon those
considerations, who ordinarily by reason of conduct of human affairs would do or be
obligated to, or by doing something which a reasonable or prudent man would not do.
See Municipal Corporation of Greater Bombay vs. Laxman Iyer and Another [(2003) 8
SCC 731, para 6].
17. When a damage is caused upon act of negligence on the part of a person, the said
person is primarily held to be liable for payment of damages. The owner of the vehicle
would be liable as he has permitted the use thereof. To that effect only under the Motor
Vehicles Act, both driver and owner would be jointly liable. This, however, would not
mean that they are joint tort-feasers in the strict sense of the term. There exists a
distinction between the liability of the owner of a vehicle which was used in commission
of the accident and that of the driver for whose negligence the accident was caused, but
the same would not mean that the owner and the driver are joint tort-feasers in the sense
as it is ordinarily understood.
18. The Karnataka Rules, therefore, were required to be construed having regard to the
appropriate interpretative principles applicable thereto. Common law principles were
therefor required to be kept in mind. In this case, we are not required to lay down a law
that even in absence of any rule, impleadment of the driver would be imperative.
It is however, of some interest to note the provisions of Section 168 of the Motor Vehicles
Act. In terms of this aforementioned provision, the Tribunal is mandatorily required to
specify the amount which shall be paid by the owner or driver of the vehicle involved in
the accident or by or any of them. As it is imperative on the part of the Tribunal to specify
the amount payable inter alia by the driver of the vehicle, a fortiori he should be
impleaded as a party in the proceeding. He may not, however, be a necessary party in the
sense that in his absence, the entire proceeding shall not be vitiated as the owner of the
vehicle was a party in his capacity as a joint tort feaser.
19. Appellant not only made averments as regards absence of negligence on his part; he
made specific allegations against the driver of the truck. The driver of the truck alone
would have been competent to depose. In a given case, like the present one, the owner of
the truck may not defend the action at all keeping in view the fact that the vehicle was an
insured one. There are some decisions of this Court, where even a plea has been raised
that the insured company would not be an aggrieved person in such an extent although
such a contention has been negatived by this Court.
20. The principles of natural justice demand that a person must be given an opportunity to
defend his action.
There are cases and cases. In a given situation, the owner of a vehicle may take the plea
that the driver had used the vehicle without his authority or permission and in that view
of the matter, he is not liable for the tortuous acts of the driver at all. There are
innumerable instances where the insurance Company had been held to be absolved of its
liability to compensate the owner of the vehicle inter alia on the premise that the driver
did not hold a valid license. The legal principle was evolved on the premise that the
owner had a duty to see that the person authorized to drive the vehicle is otherwise
eligible to do so or entitled to do so in law.
21. In Sitaram Motilal Kalal vs. Santanuprasad Jaishanker Bhatt [AIR 1966 SC 1697] this
Court opined that the master is vicariously liable for the acts of his servants acting in the
course of his employment stating :
"27. The law is settled that a master is vicariously liable for the acts of his servant acting
in the course of his employment. Unless the act is done in the course of employment, the
servant's act does not make the employer liable. In other words, for the master's liability
to arise, the act must be a wrongful act authorised by the master or a wrongful and
unauthorised mode of doing some act authorized by the master. The driver of a car taking
the car on the master's business makes him vicariously liable if he commits an accident.
But it is equally well settled that if the servant, at the time of the accident, is not acting
within the course of his employment but is doing something for himself the master is not
liable........."
@page-SC2551
In Minu B. Mehta (supra), this Court noticed :
"28. In Halsbury's Laws of England, 3rd Edn., Vol. 32, at para 751 at p. 366 the nature of
insurance required is stated as follows : AIR 1977 SC 1248
"The conditions to be fulfilled in order to render the use of a motor vehicle lawful are (1)
that there must be a policy of insurance in force in relation to the use of the vehicle on a
road, and (2) that it must be a policy complying with the relevant statutory requirements."
At para 752 at p. 366 the general nature of liabilities required to be covered are stated as
under :
"In order to comply with the statutory requirements, a policy must provide insurance
cover in respect of any liability which may be incurred by such person, persons or classes
of persons as are specified in the policy, in respect of the death of, or bodily injury to, any
person (subject to specific exceptions) caused by or arising out of, the use of the vehicle
on a road."
The authorised insurers issuing a policy pursuant to the statutory requirements are
obliged to indemnify the person specified in the policy in respect of any liability which
the policy purports to cover in the case of that person or classes of persons. . . . (Para 758
at p. 369). These passages clearly indicate that the nature of the liability required to be
covered is the liability which may be incurred by or arising out of the use of a vehicle on
a road by the person."
Thus, in appropriate cases, the liability of the driver would be primary.
22. Appellant was fully aware of his legal liability. He was involved in the criminal case.
He deposed in the claim applications filed by the injured persons who were travelling in
the bus. He was fully aware that unless he proves his innocence in regard to the charge of
rash and negligent driving, he would be held liable therefor, particularly when he himself
had filed the claim petition. It might have been a matter of sharing of liability between
him and the driver of the truck. He was aware that his plea that he was not negligent has
been negatived. He, for all intent and purport, therefore, was a party to the earlier
proceedings. If he intended to get rid of the findings recorded by the Tribunal, he could
have preferred an appeal thereagainst. He did not choose to do so.
23. This case gives rise to an anomalous situation. The Corporation has been found to be
liable to pay the amount of compensation claimed by the passengers of the bus only
because the appellant was found to be rash and negligent in driving. The law cannot be
construed in such a manner so as to lead to such a conclusion as the same court in this
case which was being heard simultaneously held that he was not negligent and the driver
of the truck was negligent so as to fasten the liability also on the owner of the truck.
When an accident has taken place, the court was required to hold either the driver of the
bus or the truck responsible; no case of contributory negligence having been made out.
The result would be that the Corporation would be liable to pay compensation in both the
cases although findings in each of them were contradictory to or inconsistent with each
other. Similar would be the position of the driver of the truck. In one case, he for the
same act would stand exonerated and in another case, liability to pay compensation
would be fastened on him. Precisely that was the purpose for which the Tribunals heard
both the matters together and also delivered judgments one after the other. It was
necessary to apply the comity or amity or the principles analogous thereto.
The issue to be examined herein is whether in the claims cases before the Motor Vehicles
Accident Claims Tribunal, the driver of a vehicle who has been accused of negligence is a
necessary party to the proceedings or whether the owner alone can be impleaded.
In this case, two sets of claims cases were heard together, one filed by the passengers of
the KSRTC bus and the other filed by the driver of the said bus. In short, unless the
finding of negligence in the claim cases of the passengers was negatived, in the claim
cases filed by the driver himself, the said finding of negligence on the part of the driver
could not have been varied.
The analysis of our findings aforementioned is :-
(i) In the first set of claims cases, the driver of the bus was held to be negligent and,
therefore, a ruling that the driver is a necessary party would mean that the bus driver must
necessarily be involved in these proceedings. However, the driver of the bus had
sufficient opportunity to make a representation against the allegation of negligence
@page-SC2552
as he was examined as RW1 in the claim cases filed by the passengers, even though he
was not formally impleaded as a Respondent. Hence, the High Court has correctly held
that he was a 'party' to the proceedings.
(ii) In the claims filed by the driver of the bus (namely the Appellant herein), specific
allegations were made against the driver of the truck. Hence, the question is whether the
driver of the truck must necessarily be made a party to the proceedings. He was not.
Here, one must bifurcate the terms 'parry' and 'necessary party'. 'Party' has been correctly
defined by the High Court in the impugned judgment in terms of involvement in the
proceedings regardless of formal impleadment. However, a necessary party has been
defined in the 5th edition of Black's Law Dictionary as follows :-
"In pleading and practice, those persons who must be joined in an action because, inter
alia, complete relief cannot be given to those already parties without their joinder. Fed. R.
Civil P. 19 (a) ........."
First and foremost, as has been stated in the body of the judgment, natural justice would
mandate involvement of a driver, as an adverse finding on negligence cannot and should
not be made against him without giving him the opportunity to at least make a
representation as a witness.
More importantly, however, one must look at the kind of evidence which must be led in
such cases. Appellants have, as noticed hereinbefore, relied on Patel Roadways (supra) to
try and prove that the driver need not be a party. Firstly, this case only relates to formally
impleading the driver as a party. However, the fact that joint tort-feasors have been
mentioned in the judgment is relevant.
Joint tortfeasors, as per the 10th edition of Charlesworth and Percy on Negligence, have
been described as under :-
"Wrongdoers are deemed to be joint tortfeasors, within the meaning of the rule, where the
cause of action against each of them in the same, namely that the same evidence would
support an action against them, individually......Accordingly, they will be jointly liable for
a tort which they both commit or for which they are responsible because the law imputes
the commission of the same wrongful act to two or more persons at the same time. This
occurs in cases of (a) agency; (b) vicarious liability; and (c) where a tort is committed in
the course of a joint act, whilst pursuing a common purpose agreed between them."
Hence, employer and employee, the former being vicariously liable while the latter being
primarily liable are joint tortfeasors and are therefore jointly and severally liable.
However, by virtue of the fact that the cause of action is the same and that the same
evidence would support an action against either, it follows that this evidence must
necessarily include an examination of the driver who is primarily liable. To make a
finding on negligence without involving the driver as at least a witness would vitiate the
proceedings not only on the basis of the fact that the driver has not been given an
opportunity to make a representation, but also because the evidence to make a finding
regarding negligence would necessarily be inadequate.
24. On this basis, a driver should be made a 'party' to the proceedings. It was done in the
instant case. In the present case, the contention of the counsel for the respondent
Insurance Company, namely that without contrary evidence led by the appellant or
Corporation, the finding of negligence on the part of the appellant cannot be interfered
with, must be upheld. Without a deposition on the part of the truck driver and without his
involvement at least as a witness, an adverse finding on negligence cannot be made
against him. In any event, the truck driver was examined as RW1. Therefore, in the
circumstances, the driver of the bus was examined in the first set of claims cases in the
same manner as the driver of the truck was examined in the second set of cases (which
has been filed by the Appellant).
25. If we accept the contention of Ms. Suri that the Tribunal committed an error, in effect
and substance, we will be holding that the Tribunal committed an illegality in awarding
compensation to the passengers of the bus. It was in that sense, the High Court cannot be
said to have committed any error in holding that the appellant was also an aggrieved
person. Furthermore, both the Tribunal and the High Court have rightly arrived at a
finding of fact that it was the appellant alone who was rash and negligent in driving of the
vehicle. No case had been made out to differ with the said finding of fact.
@page-SC2553
26. For the reasons aforementioned, the impugned judgment does not suffer from any
legal infirmity. It is therefore, dismissed. However, in the facts and circumstances of this
case, there shall be no order as to costs.
Appeal dismissed.
AIR 2008 SUPREME COURT 2553 "Rajasthan S. R. T. C. v. Mohar Singh"
(From : Rajasthan)*
-2008.
Rajasthan S.R.T.C. and Ors. v. Mohar Singh.
Civil P.C. (5 of 1908), S.9 - Industrial Disputes Act (14 of 1947), Sch.2, Item 6 - CIVIL
COURT - INDUSTRIAL DISPUTE - NATURAL JUSTICE - PRINCIPLES - Civil Court
- Jurisdiction - Service matters - Court has limited jurisdiction - It is not totally excluded -
Order declaring dismissal as against principles of natural justice - Not beyond jurisdiction
of Civil Court.
Civil Court may have a limited jurisdiction in service matters but it cannot be said to have
no jurisdiction at all to entertain a suit. It may not be entitled to sit in appeal over the
order passed in the disciplinary proceedings or on the quantum of punishment imposed. It
may not in a given case direct reinstatement in service having regard to Section 14(1) (b)
of the Specific Relief Act, 1963 but, it is a trite law that where the right is claimed by the
plaintiff in terms of common law or under a statute other than the one which created a
new right for the first time and when a forum has also been created for enforcing the said
right, the Civil Court shall also have jurisdiction to entertain a suit where the plaintiff
claim benefit of a fundamental right as adumbrated under Article 14 of the Constitution
of India or mandatory provisions of statute or statutory rules governing the terms and
conditions of service. Thus, if a right is claimed under the Industrial Disputes Act or the
sister laws, the jurisdiction of the Civil Court would be barred, but if no such right is
claimed, civil Court will have jurisdiction. (Paras 11, 20)
Order of civil Court declaring dismissal of service of bus driver of State Transport
Corporation as being passed in violation of principles of natural justice cannot be said to
be without jurisdictions. In the event, it is found that the action on the part of a State is
violative of the Constitutional Provisions or the mandatory requirements of a statute or
statutory rules, the Civil Court would have the jurisdiction to direct reinstatement with
full back wages. (Paras 21, 22)
(2006) 1 SCC 59 9, 19
(2005) 7 SCC 447 (Ref.) 17
18
1995 AIR SCW 2683 : AIR 1995 SC 1715 : 1995 Lab IC 2241 (Ref.) 9, 16, 17, 19
AIR 1975 SC 2238 : 1975 Lab IC 1651 (Rel. on) 13, 16
AIR 1969 SC 1306 (Ref.) 23
(1859) 6 CB (NS) 336 : 141 ER 486 13
H. D. Thanvi, Ms. Archana Mishra and Sushil Kumar Jain, for Appellants.
* S.B.C.S.A. No. 330 of 2000, D/- 23-11 -2005 (Raj) (Jaipur Bench)
Judgement
2. First appellant (Corporation) is a statutory corporation constituted and incorporated
under the Road Corporation Act, 1951. Respondent herein was a driver of a bus
employed by the Corporation.
3. On the charges of alleged commission of misconduct on the part of the respondent, a
disciplinary proceeding was initiated against him on or about 6.11.1982. The Enquiry
Officer found him guilty of the said charges. By reason of an order dated 31.5.1985, the
disciplinary authority, upon considering the report of enquiry officer inflicted the
punishment of dismissal from services on him with immediate effect. It was furthermore
directed that he shall not be entitled to further wages save and except what has already
been paid to him by way of subsistence allowance.
4. An appeal preferred by him was dismissed by the Appellate Authority by an order
dated 16.6.1987.
5. Respondent filed a civil suit in the Court Additional Munsif, Jaipur which was marked
as Civil Suit No.632/88 (290/86). In his written statement, the appellant, inter alia,
contended that the Civil Court had no jurisdiction to entertain the suit. Some of the issues
framed by the Civil Court were :
"(1) Whether the order of termination No. 1516 dated 31.5.1985 and the order of
@page-SC2554
the Appellate Authority dated 16.6.1987 are illegal and bad in law ?
xxx xxx xxx
(3) Whether the Court has got no jurisdiction to entertain and try the suit ?"
6. While determining issue No. 1, the Trial Court, inter alia, held that the order of
termination dated 31.5.1985 as also the order of the appellate authority were illegal, bad
in law and against the principles of natural justice, opining :
i) The documents mentioned in the charge-sheet whereupon the appellant relied, had not
been supplied to the respondent;
ii) He was not permitted to cross-examine the witnesses examined on behalf of the
department; and
iii) The enquiry officer acted like a prosecutor.
7. On the said findings, the suit was decreed, opining :
"In the result, it is ordered that the suit of the plaintiff is decreed against the defendant
declaring that the order No. 1516 dated 31.5.1985 passed by the defendant and the order
of the Appellant Authority dated 16.6.1987 is held to be illegal, bad in law non est being
against principle of natural justice and, therefore, is set aside. It is also declared that the
plaintiff would be treated to be in continuous service of the defendant without any break
and would also be entitled to receive all the monetary benefits as he would have been
entitled has he been in continuous service."
8. An appeal preferred thereagainst by the appellant was dismissed by the Additional
District and Sessions Judge, Jaipur City by a judgment and order dated 5.5.2000.
The High Court, by reason of the impugned judgment has dismissed the second appeal
filed by the appellant, holding that no substantial question of law arose for its
consideration.
9. Mr. Thanvi, learned counsel appearing on behalf of the appellant, would submit that
the Civil Court, in the facts and circumstances of this case, had no jurisdiction to
entertain the suit.
It was pointed out that as there exists conflict between two three Judge Bench decisions
of this Court in Rajasthan State Roadways Transport Corporation and Anr. v. Krishna
Kant and Ors. [(1995) 5 SCC 75] and Rajasthan SRTC and Ors. v. Khadarmal [(2006) 1
SCC 59], a Division Bench of this Court in Civil Appeal No.3428 of 2005 referred the
matter to a larger Bench. 1995 AIR SCW 2683
10. Section 9 of the Code of Civil Procedure provides that all Civil Courts shall have
jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is
either expressly or impliedly barred.
The jurisdiction of the Civil Court apparently is not expressly barred by the provisions of
Industrial Disputes Act, 1947.
The question which arises for our consideration would be as to whether the same is
barred by necessary implication.
11. Civil Court may have a limited jurisdiction in service matters but it cannot be said to
have no jurisdiction at all to entertain a suit. It may not be entitled to sit in appeal over the
order passed in the disciplinary proceedings or on the quantum of punishment imposed. It
may not in a given case direct reinstatement in service having regard to Section 14(1)(b)
of the Specific Relief Act, 1963 but, it is a trite law that where the right is claimed by the
plaintiff in terms of common law or under a statute other than the one which created a
new right for the first time and when a forum has also been created for enforcing the said
right, the Civil Court shall also have jurisdiction to entertain a suit where the plaintiff
claim benefit of a fundamental right as adumbrated under Article 14 of the Constitution
of India or mandatory provisions of statute or statutory rules governing the terms and
conditions of service.
12. Under the industrial law, and in particular the 1947 Act, the authorities specified
therein including the Appropriate Governments and the Industrial Courts have various
functions to perform. Terms and conditions 'can be laid down thereunder. Violation of the
terms and conditions of service at the hands of the employer is also justiciable.
Safeguards have been provided under the Act to see that services of workmen are not
unjustly terminated. The 1947 Act provides for a wider definition of 'termination of
service'. Conditions precedent for termination of service have been provided for
thereunder.
A decision taken by the Disciplinary
@page-SC2555
Authority under the 1951 Act ordinarily would be a subject matter of suit. The Civil
Court, however, as noticed hereinbefore exercises a limited jurisdiction. If however, the
concerned employee is a 'workman' within the meaning of the provisions of the 1947 Act,
he apart from the common law remedies, may take recourse to the remedies available
before an industrial court.
When a right accrues under two statutes vis-a-vis the common law right, the concerned
employee will have an option to chose his forum.
13. We must also notice the distinction between a right which is conferred upon an
employer under a statute for the first time and also providing for a remedy and the one
which is created to determine the cases under the common law right. Only in a case of the
former, the Civil Court's jurisdiction may be held to be barred by necessary implication.
The question came up for consideration before a Three Judge Bench of this Court in The
Premier Automobiles Ltd. v. Kamlakar Shantaram Wadke and Ors. [AIR 1975 SC 2238].
The distinction as noticed hereinbefore, was noticed therein. The Court extensively
quoted from Wolverhampton New Waterworks Co. v. Hawkesford [(1859) 6 CB (NS)
336] as under :
"There are three classes of cases in which a liability may be established by statute. There
is that class where there is a liability existing at common law, and which is only re-
enacted by the statute with a special form of remedy; there, unless the statute contains
words necessarily excluding the common law remedy, the plaintiff has his election of
proceeding either under the statute or at common law. Then there is a second class, which
consists of those cases in which a statute has created a liability, but has given no special
remedy for it; there the party may adopt an action of debt or other remedy at common law
to enforce it. The third class is where the statute creates a liability not existing at common
law, and gives also a particular remedy for enforcing it.. "With respect to that class it has
always been held, that the party must adopt the form of remedy given by the statute."
Having analysed the other ratio of decisions, it was summed up :
"To sum up, the principles applicable to the jurisdiction of the Civil Court in relation to
an industrial dispute may be stated thus :
(1) If the dispute is not an industrial dispute, nor does it relate to enforcement of any
other right under the Act and the remedy lies only in the civil Court.
(2) If the dispute is an industrial dispute arising out of a right or liability under the
general or common law and not under the Act, the jurisdiction of the civil Court is
alternative leaving it to the election of the suitor concerned to choose his remedy for the
relief which is competent to be granted in a particular remedy.
(3) If the industrial dispute relates to the enforcement of a right or an obligation created
under the Act, then the only remedy available to the suitor is to get an adjudication under
the Act.
(4) If the right which is sought to be enforced is a right created under the Act such as
Chapter VA then the remedy for its enforcement is either Section 33C or the raising of an
industrial dispute, as the case may be."
14. The said principle, in our opinion, should be applied in a case of this nature. The
Courts ordinarily do not adopt an interpretation which takes away the jurisdiction of the
Court.
15. We may in this behalf profitably notice the following excerpts from the Principles of
Statutory Interpretation (11th Edn) by Justice G.P. Singh :
" 'It is a principle by no means to be whittled down' and has been referred to as a
"fundamental rule". As a necessary corollary of this rule provisions excluding jurisdiction
of civil courts and provisions conferring jurisdiction on authorities and tribunals other
than civil courts are strictly construed. The existence of jurisdiction in civil courts to
decide questions of civil nature being the general rule and exclusion being an exception,
the burden of proof to show that jurisdiction is excluded in any particular case is on the
party raising such a contention. The rule that the exclusion of jurisdiction of civil court is
not to be readily inferred is based on the theory that civil courts are courts of general
jurisdiction and the people have a right, unless expressly or impliedly debarred to insist
for free access to the courts of general jurisdiction of the State. Indeed, the principle is
not limited to civil courts alone, but applies, to all courts
@page-SC2556
of general jurisdiction including criminal courts. The rule as stated above relating to strict
construction of provisions excluding jurisdiction of courts of general jurisdiction was
recently expressly approved by the Supreme Court."
16
. In Krishna Kant (supra), this Court opined that where a dispute involves recognition of
servant and enforcement of rights and obligations created under the Industrial Disputes
Act and/or its sister enactments such as Industrial Employees (Standing Orders) Act, the
Civil Court will have no jurisdiction. 1995 AIR SCW 2683
Premier Automobiles (supra) was explained, stating : AIR 1975 SC 2238
"25. It is the Principle No. 2, and particularly the qualifying statements in para 24, that
has given rise to good amount of controversy. According to Principle No. 2, if the dispute
is an industrial dispute arising out of a right or liability under the general or common law
and not under the Industrial Disputes Act, the jurisdiction of the civil court is alternative
and it is left to the person concerned either to approach the civil court or to have recourse
to the machinery provided by Industrial Disputes Act. But Principle No. 2 does not stand
alone; it is qualified by para 24. Now what does para 24 say ? It says (i) in view of the
definition of "industrial dispute" in the Industrial Disputes Act, there will hardly be an
industrial dispute arising exclusively out of a right or liability under the general or
common law. Most of the industrial disputes will be disputes arising out of a right or
liability under the Act. (ii) Dismissal of an unsponsored workman is an individual dispute
and not an industrial dispute (unless of course, it is espoused by the union of workmen or
a body of workmen) but Section 2-A has made it an industrial dispute. Because of this
"civil courts will have hardly an occasion to deal with the type of cases falling under
Principle No. 2". By and large, industrial disputes are bound to be covered by Principle
No. 3. (Principle No. 3 says that where the dispute relates to the enforcement of a right or
obligation created by the Act, the only remedy available is to get an adjudication under
the Act.)"
However, in that case, this Court declined to set aside the decree which was the subject
matter of the appeals.
17. We are not concerned with such a situation here as the same is not being claimed by
the plaintiff on the basis of right arising either under the Industrial Disputes Act, 1947 or
Industrial Employees (Standing Orders) Act, 1946.
We may also notice that in Rajasthan State Road Transport Corporation and Ors. v. Zakir
Hussain [(2005) 7 SCC 447], whereupon the learned counsel also replied on. this Court
noticed Krishna Kant (Supra), but in paragraph 32 of the judgment having regard to
object of the Industrial Disputes Act held that the termination of the workman concerned
was a simpliciter one and did not contain any stigma and, thus, the law does not require
holding of any enquiry before terminating the services of the employee being not on the
ground of any misconduct. 1995 AIR SCW 2683
It was held that the Civil Court has no jurisdiction as the Management was fully entitled
to terminate the services of the probationary officer during the period of probation, if his
services were not found to be satisfactory.
18
. However, this Court in State of U.P. v. Shatrughan Lal and Anr. [AIR 1998 SC 3038],
opined that where copies of the statement of the witnesses were not supplied to the
delinquent employee, the same would constitute violation of the principles of natural
justice, stating : 1998 AIR SCW 2897, Para 10
"It has also been found that during the course of the preliminary enquiry, a number of
witnesses were examined against the respondent in his absence, and rightly so, as the
delinquents are not associated in the preliminary enquiry, and thereafter the charge-sheet
was drawn up. The copies of those statements, though asked for by the respondent, were
not supplied to him. Since there was a failure on the part of the appellant in this regard
too, the Tribunal was justified in coming to the conclusion that the principles of natural
justice were violated and the respondent was not afforded an effective opportunity of
hearing, particularly as the appellant failed to establish that non-supply of the copies of
statements recorded during preliminary enquiry had not caused any prejudice to the
respondent in defending himself."
19
. In Khadarmal (supra), it was held that the Civil Court had no jurisdiction and the
decrees which were 1995 AIR SCW 2683
@page-SC2557
passed have no force of law. Apparently, this Court in CA No. 3428 of 2005 (supra)
found an apparent conflict in the said decision vis-a-vis Krishna Kant (supra) and
Khadarmal (supra).
In Khadarmal (supra) also, however, this Court directed that if any back wages had been
paid, the same shall not be recovered.
20. The decisions referred to hereinbefore clearly brings about a distinction which cannot
be lost sight of. If a right is claimed under the Industrial Disputes Act or the sister laws,
the jurisdiction of the Civil Court would be barred, but if no such right is claimed, civil
court will have jurisdiction.
21. Appellant is a 'State' within the meaning of Article 12 of the Constitution of India. It
is created under a statute. As a State, it is bound to comply with the requirements of
Article 14 of the Constitution of India as also other provisions of Part III of the
Constitution. It is also bound to comply with the mandatory provisions of the statute or
the regulations framed by it.
22. It is also bound to follow the principles of natural justice. In the event, it is found that
the action on the part of a State is violative of the Constitutional Provisions or the
mandatory requirements of a statute or statutory rules, the Civil Court would have the
jurisdiction to direct reinstatement with full back wages.
23
. In Praga Tools Corporation v. C.V. Imanual and Ors. [AIR 1969 SC 1306], it was held :
Para 6 of AIR
"Therefore, the condition precedent for the issue of mandamus is that there is in one
claiming it a legal right to the performance of a legal duty by one against whom it is
sought. An order of mandamus is, in form, a command directed to a person, corporation
or an inferior tribunal requiring him or them to do a particular thing therein specified
which appertains to his or their office and is in the nature of a public duty. It is, however,
not necessary that the person or the authority on whom the statutory duty is imposed need
be a public official or an official body. A mandamus can issue, for instance, to an official
of a society to compel him to carry out the terms of the statute under or by which the
society is constituted or governed and also to companies or corporations to carry out
duties placed on them by the statutes authorizing their undertakings. A mandamus would
also lie against a company constituted by a statute for the purposes of fulfilling public
responsibilities."
24. For the reasons aforementioned, we do not find any merit in this appeal. It is
dismissed accordingly. As the respondent has not appeared, there shall be no orders as to
costs.
Appeal dismissed.
AIR 2008 SUPREME COURT 2557 "B. Nagabhushanam v. State of Karnataka"
(From : Karnataka)*
-2008.
B. Nagabhushanam v. State of Karnataka.
Penal Code (45 of 1860), S.279, S.304A - NEGLIGENCE - SENTENCE IMPOSITION -
CONCURRENT FINDINGS - Sentence - Bus was driven at high speed as stated by eye
witness - Bus did not have any mechanical failure - Accused did not say that there was
error of judgment on his part - Concurrent finding of fact that bus was being driven rashly
and negligently - Imposition of sentence of six months' simple imprisonment and fine of
Rs. 1,000/- for offence u/S.304A and simple imprisonment for one month and fine of Rs.
500/- for offence u/S.279 - Cannot be said to be shocking. (Para 11)
AIR 1980 SC 84 : 1980 Cri LJ 11 (Ref.) 13
AIR 1979 SC 1848 : 1979 Cri LJ 1374 (Ref.) 9
AIR 1974 SC 1516 : 1974 Cri LJ 1062 (Ref) 9
S. K. Kulkarni, M. Gireesh Kumar, Vijay Kumar, for Appellant; Ms. Anitha Shenoy, for
Respondent.
* Cri. R. P. No. 618 of 2004, D/- 26-6-2007 (Kant.)
Judgement
2. Appellant was the driver of a bus bearing registration No. AP-10-Z-5260. He was
driving the said bus on Bangalore-Hindupur road. On 10.1.1999, at about 2:00 p.m. when
the bus was passing through a village commonly known as Kamalapura, it dashed
@page-SC2558
against a child by name Shantha, as a result whereof she died. Shantha was about 7 years
old at that time. A criminal prosecution under Sections 279 and 304A of the Indian Penal
Code was initiated against him. He was found guilty of the said offences. He was
sentenced to one year's simple imprisonment and to pay a fine of Rs. 1,000/- for
commission of the offence punishable under Section 304A and simple imprisonment for
one month and to pay a fine of Rs. 500/-for the offence punishable under Section 279 of
the Indian Penal Code. The appeal preferred thereagainst by him was dismissed. The
High Court, however, by reason of the impugned judgment modified the sentence
directing :
"The order of sentence passed against the revision petitioner for the offence punishable
under Section 304-A IPC is modified. He shall undergo simple imprisonment for six
months and to pay a fine of Rs. 5000/-. In default of payment of fine amount, he shall
undergo simple imprisonment for one month. Out of the fine amount of Rs.5000/- if
deposited by the revision petitioner-accused, a sum of Rs.4000/- shall be paid to P.W. 6
Gowramma and remaining Rs. 1000/- shall be credited to the State exchequer."
3. A limited notice was issued by this Court by an order dated 25.2.2008 only on the
question of sentence.
4. Mr. Kulkarni, learned counsel appearing on behalf of the appellant, submits that
keeping in view the facts and circumstances of the case, this Court may also go into the
merit of the matter and pass a judgment of acquittal in favour of the appellant. Learned
counsel contends that the very fact that in the First Information Report, it was alleged that
the deceased was standing on the left side of the road and the dead body was found on the
right side thereof is indicative of the fact that she all of a sudden ran along the road
resulting in the said accident. It was urged that apart from the mahazar, the evidence was
brought on record to show that the appellant was driving the said bus rashly and
negligently and, in any event, the question of rash and negligent driving on the part of the
appellant does not arise as the speed of the bus was about 20 kilometers per hour. The
doctrine of res ipsa loquitur, the learned counsel urges whereupon reliance has been
placed by the courts below, cannot have any application in a, criminal case.
5. Ms. Anitha Shenoy, learned counsel appearing on behalf of the respondent, on the
other hand, submitted that for the purpose of finding out the guilt on the part of the
appellant, the entire circumstances must be construed as a whole which are:
i) The evidence of the eye-witnesses;
ii) No mechanical failure in the vehicle was noticed;
iii) No case of error of judgment has been made out; and
iv) Appellant has not offered any explanation at all as to how the accident took place.
6. Both the trial judge, the appellate court as also the High Court considered the matter in
details.
The learned trial judge categorically held that the bus was being driven at a high speed. It
further took into consideration that no cross-examination was effected on the said
question, stating :
"7. In this case the PW 1 one Sri. Chowdappa is the complainant. He has sworn to the
facts that on the date of incident about 8-10 months back earlier to the date of his
evidence in this case, the said witness deposed to the effect that on that day he was very
near at a distance of about 25 feet from the place of accident and by that time the bus
driven by the accused person from Bangalore to Hindupur direction dashed against the
child and as a result of which the child sustained grievous injury to head and other parts
of the body and as a result the child died at the spot. In this connection he has also given
a complaint as per Ex. P. 1 and his signature came to be marked as per Ex. P. 1(a). The
PW 1 has also identified the accused person who is responsible for the accident. He has
also deposed about the mahazar as per Ex. P 2 and identified his signature at Ex. P 2(a).
The cross examination conducted on behalf of accused person also supports the
prosecution case. During the course of cross examination against it has been made clear
about the distance, place of occurrence, direction. On careful study of the cross
examination discloses nothing has been elicited to disprove the case of the prosecution. It
has also been elicited in the cross examination that the bus was driven in such a speed.
Not even a single question was posed to him with regard to contents of Ex. P 2 and Ex. P
2(a), thereby the contents of mahazar remained
@page-SC2559
unchallenged. In addition to other witnesses and evidence, the evidence of PW 1 itself is
sufficient to prove the guilt of the accused person, and this evidence is very helpful to the
prosecution to prove the guilt of the accused person.
9.Comparative study of evidence of PW 3 to PW 6 and PW 8 to PW 11 clearly establishes
the case of the prosecution. All the witnesses have deposed about the rash and negligent
driving of the bus by the accused person resulting in death of Shanthamma, aged about 7
years. All these witnesses have stated that they were standing separately at different
places nearby the place of accident and that they have witnessed the accident as eye
witnesses, and absolutely there is no controversy of contradictory evidence between each
witnesses i.e. from PW 3 to PW 6 and PW 8 to PW 11. The defence counsel has totally
failed to establish that the driver of the bus is not responsible for the death of
Shanthamma, and there is no rash and negligent driving on the part of the accused person.
The contents of cross examination of all these witnesses also in the cross examination of
PW 3, after the accident the bus was taken to the police station. As stated earlier PW 15
got released the bus from the police station."
There is no reason to take a different view. It is not possible for us in a case of this nature
to reappreciate evidence.
7. Reliance by the appellant on the deposition of one of the prosecution witnesses that the
bus was being driven at a speed of 15-20 kilometers per hour, in our opinion, has rightly
not been accepted.
8. The dead body of the girl was found 2 feet away from the bus. It was only 3 feet away
from the pavement on the right side of the road. The bus admittedly did not have any
mechanical failure. Appellant did not say that there was an error of judgment on his part.
The High Court while exercising its limited revisional jurisdiction also discussed the case
at some details.
There is a concurrent finding of fact that the bus was being driven rashly and negligently.
The post mortem report was proved by PW 12 - Dr. M. N. Raju. She sustained several
external injuries. On dissection, the following injuries were found :
"a) Right temporal region Depressed Wound present
b) Normal clots present in the right temporal region."
9. PW 1 is one Sri. Chowdappa. He is a witness to the accident. According to him, the
child sustained grievous injuries on head and other parts of the body. In answer to a
question put to him in cross-examination, he stated that the bus was being driven at a
high speed. The mahazar, was marked as Exhibit P-2. The contents of the mahazar was
not challenged. It was found by the learned trial judge that the evidence of PW. 1 alone
was sufficient to hold that the appellant was guilty of the said offences. Other prosecution
witnesses were standing at different places. They had occasions to see the accident from
different directions. The spot mahazar disclosed that there was a break-mark for about
20-25 feet on the road.
Reliance placed by Mr. Kulkarni on Syad Akbar vs. State of Karnataka reported in [AIR
1979 SC 1848] is not apposite. It proceeded on the basis that doctrine of res ipsa loquitur
stricto sensu would not apply to a criminal case as its applicability in an action for injury
by negligence is well known. In Syad Akbar (supra), this Court opined : Para 3 of AIR
"Such simplified and pragmatic application of the notion of res ipsa loquitur, as a part of
the general mode of inferring a fact in issue from another circumstantial fact is subject to
all the principles, the satisfaction of which is essential before an accused can be convicted
on the basis of circumstantial evidence alone. These are: Firstly all the circumstances,
including the objective circumstances constituting the accident, from which the inference
of guilt is to be drawn, must be firmly established. Secondly, those circumstances must be
of a determinative tendency pointing un-erringly towards the guilt of the accused.
Thirdly, the circumstances should make a chain so complete that they cannot reasonably
raise any other hypothesis save that of the accused's guilt. That is to say, they should be
incompatible with his innocence, and inferentially exclude all reasonable doubt about his
guilt."
The maxim was not applied having regard to the fact of a said case and on the finding
that it was a case of error of judgment and the accused gave a reasonable, convincing
explanation of his conduct. The maxim res ipsa loquitur was not found to be applicable.
However, we may notice that the said 2004 AIR SCW 2192, Para 19
@page-SC2560
principle was applied in a case under the Prevention of Corruption Act in State of A. P.
vs. C. Uma Maheswara Rao and anr. [(2004) 4 SCC 399] in the following terms :
We may note that a three-Judge Bench in Raghubir Singh v. State of Haryana [(1974) 4
SCC 560] held that the very fact that the accused was in possession of the marked
currency notes against an allegation that he demanded and received the amount is "res
ipsa loquitur" AIR 1974 SC 1516
10. Although a limited notice was issued, we have considered the contentions raised by
Mr. Kulkarni with all seriousness that they deserved.
11. We are of the opinion that six months' simple imprisonment and a direction to the
appellant to pay a fine of Rs. 1,000/- for commission of the offence punishable under
Section 304A and simple imprisonment for one month and to pay a fine of Rs. 500/- for
the offence punishable under Section 279 of the Indian Penal Code cannot be said to be
shocking.
12
. We may, in this connection, notice that in Dalbir Singh v. State of Haryana [(2000) 5
SCC 82], this Court opined : 2000 AIR SCW 1653
"13. Bearing in mind the galloping trend in road accidents in India and the devastating
consequences visiting the victims and their families, criminal courts cannot treat the
nature of the offence under Section 304A IPC as attracting the benevolent provisions of
Section 4 of the PO Act. While considering the quantum of sentence, to be imposed for
the offence of causing death by rash or negligent driving of automobiles, one of the prime
considerations should be deterrence. A professional driver pedals the accelerator of the
automobile almost throughout his working hours. He must constantly inform himself that
he cannot afford to have a single moment of laxity or inattentiveness when his leg is on
the pedal of a vehicle in locomotion. He cannot and should not take a chance thinking
that a rash driving need not necessarily cause any accident; or even if any accident occurs
it need not necessarily result in the death of any human being; or even if such death
ensues he might not be convicted of the offence; and lastly that even if he is convicted he
would be dealt with leniently by the court. He must always keep in his mind the fear
psyche that if he is convicted of the offence for causing death of a human being due to his
callous driving of vehicle he cannot escape from jail sentence. This is the role which the
courts can play, particularly at the level of trial courts, for lessening the high rate of motor
accidents due to callous driving of automobiles."
13
. In Rattan Singh v. State of Punjab [(1979) 4 SCC 719], this Court held : AIR 1980 SC
84
"5. Nevertheless, sentencing must have a policy of correction. This driver, if he has to
become a good driver, must have a better training in traffic laws and moral responsibility,
with special reference to the potential injury to human life and limb. Punishment in this
area must, therefore, be accompanied by these components. The State, we hope, will
attach a course for better driving together with a livelier sense of responsibility, when the
punishment is for driving offences. May be, the State may consider, in cases of men with
poor families, occasional parole and reformatory courses on appropriate application,
without the rigour of the old rules which are subject to Government discretion."
14. We, therefore, do not find any merit in this appeal which is dismissed accordingly.
Appeal dismissed.
AIR 2008 SUPREME COURT 2560 "Guruswamy Nadar v. P. Lakshmi Ammal"
(From : 2001 (3) Civ LJ 399 (Madras))
Coram : 2 A. K. MATHUR AND LOKESHWAR SINGH PANTA, JJ.
Guruswamy Nadar v. P. Lakshmi Ammal (D) by L.Rs. and Ors.
Specific Relief Act (47 of 1963), S.19 - Transfer of Property Act (4 of 1882), S.52 -
CONTRACT - IMMOVABLE PROPERTY - AGREEMENT TO SELL - PRINCIPLES -
Agreement to sell - Lis pendens - Effect of, on subsequent sale of same property by
owner to second purchaser - Second sale was effected after filing of suit for specific
performance by first vendee - Principle of lis pendens will apply notwithstanding fact that
right of subsequent purchaser could be protected u/S.19(b).
(1907) 34 Ind App 102 (PC), 2000 AIR SCW 4794, Relied on.
@page-SC2561
AIR 1978 All 318, 2000 AIR SCW 442, 1995 AIR SCW 901, Ref. (Paras 3, 4)
1995 AIR SCW 901 : AIR 1993 SC 945 (Ref.) 5
AIR 1978 All 318 (Ref.) 3
(1907) 34 Ind App 102 (PC) (Rel. on.) 3
(1857) 44 ER 842 3
S. Ganesh, Sr. Advocate, C. Manishankar, Pratap Venugopal, Ms. Surekha Raman, Dileep
P., for M/s. K. J. John and Co., for Appellant; S. Balaji, S. R. Sharma, Madhusmita Bora,
S. Srinivasan, M. J. Paul, for Respondents.
Judgement
A. K. MATHUR, J. :- This appeal is directed against the order dated 19-10-2000 passed
by the Division Bench of the Madras High Court whereby the Division Bench has
dismissed the appeal affirming the judgment and decree passed by learned Single Judge.
Hence the present appeal.
2. Brief facts which are necessary for disposal of this appeal are a suit for specific
performance was filed on the basis of an agreement for sale dated 4-7-1974 under which
the first defendant in the suit had through her husband and power of attorney holder
contracted to sell a house property in sum of Rs.30,000/-. A sum of Rs.5,000/- was given
as advance and the remaining Rs.25,000/- was to be paid before 31-7-1974. The said
amount was not paid by 31-7-1974. The owner again sold the suit property to the
appellant herein on 5-5-1975 for a sum of Rs.45,000/- and possession in question was
handed over to the appellant herein. Therefore, the plaintiff filed the aforesaid suit for
enforcement of the specific performance of contract. The trial court dismissed the suit
holding that the agreement was genuine but a false story was put up by the
defendant/owner that he signed the agreement under the influence of liquor and it further
held that the defendant who is appellant before us purchased the suit property for bona
fide consideration. Therefore, no decree for specific performance could be passed in
favour of the plaintiff and learned trial court dismissed the suit. On appeal the learned
Single Judge reversed the judgment and the decree passed by the trial court and decreed
the suit for specific performance. Aggrieved against the order passed by learned Single
Judge, an appeal was preferred by the second purchaser (the appellant herein) before
Division Bench and that appeal of the second purchaser was dismissed by the Division
Bench by its order dated 19-10-2000 and hence the present appeal on grant of leave.
3. We have heard learned counsel for the parties and perused the record. It will be
relevant to mention here that the second purchase by the appellant was on 5-5-1975 i.e.
two days after the filing of the suit for specific performance on 3-5-1975. Though the
applicability of Section 52 of the Transfer of Property Act, 1882 was not considered by
the trial court, however, the first appellate court i.e. learned Single Judge while granting
the decree for specific performance found that the subsequent purchase made by the
appellant-defendant was also bona fide for value and without notice of the agreement to
sell but the said sale was subordinate to the decree that could be made in the suit for
specific performance which was instituted prior to the sale in favour of the second
purchaser. The main argument which was advanced before learned Single Judge was that
Section 19 of the Specific Relief Act, 1963 provides that a decree for specific
performance against a subsequent purchaser for bona fide who has paid the money in
good faith without notice of the original contract can be enforced as the same is binding
on the vendor as well as against the whole world. As against this, it was contended by the
respondents that Section 52 of the Transfer of Property Act which lays down the principle
of lis pendens that when a suit is pending during the pendency of such suit if a sale is
made in favour of other person, then the principle of lis pendens would be attracted. In
support of this proposition a Full Bench decision of the Allahabad High Court in Smt.
Ram Peary and others v. Gauri and others [AIR 1978 All 318] as well as a Division
Bench judgment of the Madras High Court was pressed into service. Therefore, the
question before us in this case is what is the effect of the lis pendens on the subsequent
sale of the same property by the owner to the second purchaser. Section 19 of the Specific
Relief Act clearly says subsequent sale can be enforced for good and sufficient reason but
in the present case, there is no difficulty because
@page-SC2562
the suit was filed on 3-5-1975 for specific performance of the agreement and the second
sale took place on 5-5-1975. Therefore, it is the admitted position that the second sale
was definitely after the filing of the suit in question. Had that not been the position then
we would have evaluated the effect of Section 19 of the Specific Relief Act read with
Section 52 of the Transfer of Property Act. But in the present case it is more than
apparent that the suit was filed before the second sale of the property. Therefore, the
principle of lis pendens will govern the present case and the second sale cannot have the
overriding effect on the first sale. The principle of lis pendens is still settled principle of
law. In this connection, the Full Bench of the Allahabad High Court in Smt. Ram Peary
(supra) has considered the scope of Section 52 of the Transfer of Property Act. The Full
Bench has referred to a decision in Bellamy v. Sabine [(1857) 44 ER 842 at p.843)
wherein it was observed as under :
"It is scarcely correct to speak of lis pendens as affecting a purchaser through the doctrine
of notice, though undoubtedly the language of the Courts often so describes its operation.
It affects him not because it amounts to notice, but because the law does not allow litigant
parties to give to others, pending the litigation, rights to the property in dispute, so as to
prejudice the opposite party.
Where a litigation is pending between a plaintiff and a defendant as to the right to a
particular estate, the necessities of mankind required that the decision of the Court in the
suit shall be finding, not only on the litigant parties, but also on those who derive title
under them by alienations made pending the suit, whether such alienees had or had not
notice of the pending proceedings. If this were not so, there could be no certainty that the
litigation would ever come to an end."
Similarly the Privy Council in Faiyaz Husain Khan v. Munshi Prag Narain [(1907) 34 Ind
App 102] where the Court lay stress on the necessity for final adjudication and
observation that otherwise there would be no end to litigation and justice would be
defeated. The Full Bench of Allahabad High Court further referred to the work of Story
on Equity IIIrd Edition, (para 406) which expounded the doctrine of lis pendens in the
terms as follows :
"Ordinarily, it is true that the judgment of a court binds only the parties and their privies
in representations or estate. But he who purchases during the pendency of an action, is
held bound by the judgment that may be made against the person from whom he derives
title. The litigating parties are exempted from taking any notice of the title so acquired;
and such purchaser need not be made a party to the action. Where there is a real and fair
purchase without any notice, the rule may operate very hardly. But it is a rule founded
upon a great public policy; for otherwise, alienations made during an action might defeat
its whole purpose, and there would be no end to litigation. And hence arises the maxim
pendente lite, nihil innovetur; the effect of which is not to annul the conveyance but only
to refer it subservient to the rights of the parties in the litigation. As to the rights of these
parties, the conveyance is treated as if it never had any existence; and it does not vary
them."
Normally, as a public policy once a suit has been filed pertaining to any subject matter of
the property, in order to put an end to such kind of litigation, the principle of lis pendens
has been evolved so that the litigation may finally terminate without intervention of a
third party. This is because of public policy otherwise no litigation will come to an end.
Therefore, in order to discourage that same subject-matter of property being subjected to
subsequent sale to a third person, this kind of transaction is to be checked. Otherwise,
litigation will never come to an end.
4
. Our attention was invited to a decision of this Court in R.K.Mohammed Ubaidullah and
Ors. v. Hajee C. Abdul Wahab (D) by L.Rs. and Ors. [AIR 2001 SC 1658]. In this case it
was observed that a person who purchased the property should made necessary effort to
find out with regard to that property, whether the title or interest of the person from
whom he is making purchase was in actual possession of such property. In this case, the
plaintiff filed the suit for specific performance of contract and during the pendency of the
suit, rest of the defendants brought subsequent transaction of sale by the defendant in
their favour claiming the title to the suit property on the ground that they were the bona
fide purchasers for value without notice of prior agreements in favour 2000 AIR
SCW 4794
@page-SC2563
of plaintiff and they were also aware that the plaintiff was in possession of the suit
property as a tenant for last several years and that they did not make any inquiry if
plaintiff had any further or other interest in the suit property on the date of execution of
sale deed in their favour apart from that he was in possession of the property as a tenant.
In that context their Lordships observed that subsequent purchaser cannot be said to be
bona fide purchaser of the suit property for value without notice of suit agreement and
plaintiff would be entitled to relief of specific performance. Their Lordships after
considering the effect of Section 19 of the Specific Relief Act as well as Section 52 of the
Transfer of Property Act held that subsequent purchaser has to be aware before he
purchases the suit property. So far as the present case is concerned, it is apparent that the
appellant who is a subsequent purchaser of the same property, he has purchased in good
faith but the principle of lis pendens will certainly be applicable to the present case
notwithstanding the fact that under section 19(b) of the Specific Relief Act his rights
could be protected.
5
. Mr. S. Ganesh, learned senior counsel appearing for the appellant has tried to persuade
us that the plaintiff did not prove and plead that he was ready and willing to perform his
part of the contract it is open to the second purchaser to raise this issue and in support
thereof, he relied on a decision of this Court in Ram Awadh (Dead) by L.Rs. and Ors. v.
Achhaibar Dubey and Anr. [(2000) 2 SCC 428] wherein their Lordships have observed
that there is an obligation imposed by section 16 on the Court not to grant specific
performance to a plaintiff who has not met the requirements of clauses (a), (b) and (c)
thereof. Their Lordships further observes that the Court is not bound to grant a decree for
specific performance to the plaintiff who has failed to aver and to prove that he has
performed or has always been ready and willing to perform his part of the agreement the
specific performance whereof he seeks. Therefore, such plea can be raised by subsequent
purchaser of the property or his legal representatives who were defendants in the suit.
Similarly, in Jugraj Singh and Anr. v. Labh Singh and Ors. [(1995) 2 SCC 31], it was also
emphasized that the plea that the plaintiff was to prove that he was ready and willing to
perform his part of the contract. It is personal to him. The subsequent purchasers have got
only the right to defend their purchase on the premise that they have no prior knowledge
of the agreement of sale with the plaintiff. They are bona fide purchasers for valuable
consideration, though they were not necessary parties to the suit. But in the present case,
the second purchaser was a defendant in the suit and this plea was also considered by
learned Single Judge and it found that there was sufficient allegation made in the plaint
that the plaintiff was ready and willing to perform his part of the contract. This aspect
was dealt with by learned Single Judge in its order dated 24-7-1990 and learned Single
Judge in paragraph 8 held as follows : 2000 AIR SCW 442
1995 AIR SCW 901
"On the first of these submissions, I find that as against the definite plea in paragraph 7 of
the Plaint that Plaintiff has been and is still ready and willing specifically to perform the
agreement on her part of which the 1st Defendant has had notice. The only plea in the
written statement of the 1st Respondent is "the allegations in Para 7 of the Plaint that this
Defendant is aware of the contract is denied as false". Thus, it is found that there is no
denial at all to the plea that the Plaintiff was ready and willing to perform her part of the
contract. Likewise, the 2nd Respondent also has not denied the said plea, in his written
statement. Further, to the specific averment in para 5 of the Plaint "by the latter part of
July, 1974, the Plaintiff informed the Defendants of her readiness to complete the sale"
there is no specific denial at all. There is only a vague and evasive denial by the 1st
Respondent as follows :
"The allegation contained in para 5 of the Plaint are frivolous and denied." Likewise, the
2nd Respondent also has not specifically denied the abovesaid averment in the Plaint."
Therefore, from this finding it is more than apparent that the plaintiff while filed the suit
for specific performance of the contract was ready and willing to perform her part of the
contract. This argument was though not specifically argued before the Division Bench,
the only question which was argued was whether the principle of lis pendens will be
applicable or Section 19 of the Specific Relief Act will have overriding effect to which
we have already answered. In the present case the principle of lis pendens will
@page-SC2564
be applicable as the second sale has taken place after the filing of the suit. Therefore, the
view taken by the Division Bench of the High Court is correct and we do not find any
merit in this appeal and the same is accordingly dismissed with no order as to costs.
Appeal dismissed.
AIR 2008 SUPREME COURT 2564 "Seema Silk and Sarees, M/s. v. Directorate of
Enforcement"
(From : Bombay)
-2008.
M/s. Seema Silk and Sarees and Anr. v. Directorate of Enforcement and Ors.
Foreign Exchange Regulation Act (46 of 1973), S.18(2) and S.18(3) - Constitution of
India, Art.14, Art.31B - FOREIGN EXCHANGE - EQUALITY -
CONSTITUTIONALITY OF AN ACT - RIGHT TO PROPERTY - Constitutional
validity - Restriction u/S.18 on receipt of price of export of goods beyond prescribed
period - Act placed under protective umbrella of Art.31-B - Cannot be challenged as
being ultra vires Art.14.
Provisions of S. 18 of FERA were made when the country was undergoing severe 'foreign
exchange crunch'. The Parliament in its wisdom has inserted the said provisions so as to
prevent fraud. Sub-section (1) of Sec. 18 of the Act provides for filing of an application
for grant of exemption by the Reserve Bank of India. Refusal to give such a exemption is
required to be preceded by reasonable opportunity of making a representation.
Admittedly, the Act finds place in the Ninth Schedule of the Constitution of India. Apart
from the fact that the Act is protected under Article 31B of the Constitution having been
placed in the Ninth Schedule thereof, there is no reason to arrive at a conclusion that the
Act is ultra vires Article 14. A discrimination on the ground of valid classification which
answer the test of intelligible differentia does not attract the wrath of Article 14.
Hardship, by itself, may not be a ground for holding the said provision to be
unconstitutional. Commercial expediency or auditing of books of accounts cannot be a
ground for questioning the constitutional validity of a Parliamentary Act. If the
Parliamentary Act is valid and constitutional, the same cannot be declared ultra vires only
because the exporter faces some difficulty in writing off the bad debts in his books of
accounts. He may do so. But that does not mean the statute is unconstitutional or the
criminal prosecution becomes vitiated in law.
AIR 1984 SC 1130; 2007 AIR SCW 3752; 2001 AIR SCW 3861; 2006 AIR SCW 4652,
Relied on. (Paras 11, 12, 14, 15, 18, 21)
2006 AIR SCW 4652 : AIR 2006 SC 3366 : 2006 Cri LJ 4607 : 2006 CLC 1533 (Rel. on)
16
2001 AIR SCW 3861 : AIR 2001 SC 3897 : 2001 Cri LJ 4647 : 2001 CLC 1646 (Rel on)
16
AIR 1984 SC 1130 : 1984 Lab IC 691 (Rel. on) 12
Mathew J. Nedumpara and Mrs. S. Usha Reddy, for Appellant; G.E. Vahanvati, S.G., Ms.
Rajni Singh, Sushil Kr., B.V. Balaram Das and Ravindra Keshavarao Adsure, with him
for Respondents.
Judgement
2. Constitutionality of sub-sections (2) and (3) of Section 18 of the Foreign Exchange
Regulation Act, 1973 (for short "the Act") is in question in this appeal which arises out of
a judgment and order dated 30-7-2007 passed by the High Court of Judicature at Bombay
in Criminal Writ Petition No. 336 of 2007.
3. Appellant No. 1 herein is a partnership firm and Appellant No.2 is its partner.
Appellant No. 1 used to export farments and textiles to various countries. It allegedly
could not repatriate the value of goods from the export proceeds. According to the
appellants, whereas export to developed economies like US, UK, Europe and Japan, on
credit basis, does not undergo severe competition ad very minimal profit margin can be
maintained, export to the less developed countries or the countries with poor legal system
earn greater profit margin.
4. Appellants' business allegedly came to standstill because of its inability to repatriate
export proceeds to the tune of 16.5 crores from a few overseas buyers. A notice was
issued by the Enforcement Directorate under Sections 18(2) and 18(3) of the Act alleging
that in view of their failure to repatriate the entire sale proceeds of the exports which the
appellants have made during
@page-SC2565
1997-98, the said provision is attracted.
They, in the cause shown, allegedly furnished details of repatriation they could bring
about as also the steps taken by them in that behalf. They applied for extension of time
through the authorized dealer, viz., the Canara Bank. However, with the passage of time,
the Branch Manager of the Bank did not grant any extension of time for repatriation of
the export proceeds. A suit was also filed by the Canara Bank before the Debt Recovery
Tribunal, Mumbai.
5. The Enforcement Director, in the aforementioned proceedings, imposed a penalty of
Rupees One Crore on the firm and Rs. 25 lakhs each on the partners. An appeal preferred
by the appellants before the Appellate Tribunal was allowed holding that the appellants
have taken all reasonable steps for repatriation. A further appeal was taken by the
Enforcement Directorate before the High Court which was marked as FA Nos. 8 and 9 of
2005. However, the High Court although entertained the appeal, did not pass any order of
stay.
6. A criminal case was also initiated. Cognizance thereon was taken and the appellants
were summoned by an order dated 19-6-2004 by the Chief Metropolitan Magistrate,
Esplanade Court, Mumbai. Appellants thereafter filed a criminal application bearing No.
6901 of 2005 for quashing of the criminal proceedings pending against them. The said
application was disposed of by an order dated 26-7-2006 observing that as the appellants
had already filed application for discharge, the learned Magistrate may pass appropriate
order thereupon.
By an order dated 10-10-2006, the said application for discharge was dismissed. It was
inter alia contended by the appellants in the said discharge application that the order of
Tribunal being civil in nature, the same was binding on the criminal Court and, thus, the
prosecution against them under Section 56 of the Act was not maintainable. The order
taking cognizance having been passed on 27-5-2002, the same was contended to be bad
in law.
7. Appellants preferred writ petition thereagainst questioning the constitutionality of
Sections 18(2) and 18(3) of the Act as also constitutional validity of the Constitution 39th
Amendment Act. By reason of the impugned judgment, the said writ petition has been
dismissed.
8. Mr. Mathews J. Nedumpara, learned counsel appearing on behalf of the appellants,
would submit that Sections 18(2) and 18(3) of the Act placing the burden of proof upon
the accused must be held to be a law having draconian character and, thus, is
unconstitutional.
It was submitted that by reason of the said provision, discrimination has been made
between a domestic trader and an exporter and, thus, the same is violative of Article 14 of
the Constitution of India.
It was urged that validity of the said provision must be judged on the touchstone of
commercial considerations inasmuch as whether an exporter may not be able to repatriate
the export proceeds particularly when such exports are made to the developing countries.
The learned counsel would contend that all traders in terms of the provisions of the
Income-tax Act, 1961 make a provision for bad debt. When a trader suffers loss, it is
permissible to make a provision for writing off such bad debts. It was furthermore urged
that in terms of the provisions of the Income-tax Act, the accounts are required to be
audited by a Chartered Accountant and, thus, the impugned law being contrary to the
accounting practice should not be sustained. Such repatriation of exports proceeds, thus,
being uncertain, it was urged, the impugned provisions as also the Constitution 39th
Amendment Act cannot be sustained.
9. Mr. G. E. Vahanvati, learned Solicitor General appearing on behalf of the respondents,
on the other hand, would submit that a domestic trader and an exporter belong to different
classes and such classification, being valid, the impugned provisions are not ultra vires
Article 14 of the Constitution of India.
It was pointed out that having regard to the nature of business and the risk involved in the
export of commodities, the appellant could approach the Reserve Bank of India for grant
of exemption and in that view of the matter it does not cause even any hardship to any
individual.
10. Sections 18(2) and 18(3) of the Act reads as under :
"18. Payment for exported goods :
(1) *********
(2) Where any export of goods, to which a notification under clause (a) of sub-section
@page-SC2566
(1) applies, has been made, no person shall, except with the permission of the Reserve
Bank, do or refrain from doing anything, or take or refrain from taking any action, which
has the effect of securing -
(A) in a case falling under sub-clause (i) or sub clause (ii) of clause (a) of sub-section
(1),-
(a) that payment for the goods -
i. is made otherwise than in the prescribed manner, or
ii. is delayed beyond the period prescribed under clause (a) of sub-section (1), or
(b) that the proceeds of sale of the goods exported do not represent the full export value
of the goods subject to such deductions, if any, as may be allowed by the Reserve Bank,
and
(B) in a case falling under sub-clause (ii) of clause (a) of sub-section (1), also that the sale
of the goods is delayed to an extent which is unreasonable having regard to the ordinary
course of trade: Provided that no proceedings in respect of any contravention of the
provisions of this sub-section shall be instituted unless the prescribed period has expired
and payment for the goods representing the full export value has not been made in the
prescribed manner within the prescribed period.
(3) Where in relation to any goods to which a notification under clause (a) of subsection
(1) applies the prescribed period has expired and payment therefor has not been made as
aforesaid, it shall be presumed, unless the contrary is proved by the person who has sold
or is entitled to sell the goods or to procure the sale thereof, that such person has not
taken all reasonable steps to receive or recover the payment for the goods as aforesaid
and he shall accordingly be presumed to have contravened the provisions of sub-section
(2)."
11. Admittedly, the Act finds place in the Ninth Schedule of the Constitution of India. In
terms of Article 31B of the Constitution of India inter alia none of the Acts specified in
the Ninth Schedule is ultra vires even if it is inconsistent with or takes away or abridges
any of the rights conferred by any provisions of Part III of the Constitution of India.
12. Appellants have questioned the validity of the Act only on the ground of infringement
of Article 14 of the Constitution of India. Apart from the fact that the Act is protected
under Article 31B of the Constitution of India having been placed in the Ninth Schedule
thereof, even otherwise, we do not find any reason to arrive at a conclusion that the Act is
ultra vires Article 14 of the Constitution of India. A discrimination on the ground of valid
classification which answers the test of intelligible differentia does not attract the wrath
of Article 14 of the Constitution of India. Hardship, by itself, may not be a ground for
holding the said provision to be unconstitutional.
In Ajoy Kumar Banerjee v. Union of India ((1984) 3 SCC 127), this Court held : AIR
1984 SC 1130
"50. Differentiation is not always discriminatory. If there is a rational nexus on the basis
of which differentiation has been made with the object sought to be achieved by
particular provision, then such differentiation is not discriminatory and does not violate
the principles of Article 14 of the Constitution. This principle is too well settled now to
be reiterated by reference to cases. There is intelligible basis for differentiation. Whether
the same result or better result could have been achieved and better basis of
differentiation evolved is within the domain of legislature and must be left to the wisdom
of the legislature. Had it been held that the scheme of 1980 was within the authority
given by the Act, we would have rejected the challenge to the Act and the scheme under
Article 14 of the Constitution."
13. No case has been made out that the Act is confiscatory in nature. No foundational fact
has also been brought on record.
Appellants have not annexed even a copy of the writ petition. The learned counsel has not
been able to satisfy us that there existed any factual foundation in support of his
argument.
In Southern Petrochemical Industries Co. Ltd. v. Electricity Inspector and ETIO ((2007) 5
SCC 447), this Court held : 2007 AIR SCW 3752
"69. The issue that the 2003 Act is in violation of the equality clause contained in Article
14 of the Constitution of India was not raised before the High Court. Only in one of the
civil appeals, prayer was made for urging additional ground and the same having been
directed, additional ground has
@page-SC2567
been taken to urge the said question. A ground taken, however, must be based on a factual
foundation. For attracting Article 14, necessary facts were required to be pleaded. The
foundational facts as to how Section 14 of the 2003 Act would be discriminatory in
nature have not been stated at all. The Government of Tamil Nadu has also not been
given any opportunity to meet the said contention.
70. It is now trite that such factual foundation, unless is apparent from the statute, itself,
cannot be permitted to be raised and that too for the first time before this Court."
It was further opined :
"74. In absence of necessary pleadings and grounds taken before the High Court, we are
not in a position to agree with the learned counsel appearing on behalf of the appellants
that only because Section 13 of the repealed Act is inconsistent with Section 14 of the
2003 Act, the same would be arbitrary by reason of being discriminatory in nature and
ultra vires Article 14 of the Constitution of India on the premise that charging section
provides for levy of tax on sale and consumption of electrical energy, while the
exemption provision purports to give power to exempt tax on "electricity sold for
consumption" and makes no corresponding provision for exemption of tax on electrical
energy self generated and consumed."
14. In absence of such factual foundation having been pleaded, we are of the opinion that
no case has been made out for declaring the said provision ultra vires the Constitution of
India.
15. A domestic trader and an exporter stand on different footings. The said provisions
were made when the country was undergoing severe 'foreign exchange crunch'. The
Parliament in its wisdom has inserted the said provisions so as to prevent fraud. Sub-
section (1) of Section 18 of the Act provides for filing of an application for grant of
exemption by the Reserve Bank of India. Refusal to give such an exemption is required to
be preceded by reasonable opportunity of making a representation.
16
. A legal provision does not become unconstitutional only because it provides for a
reverse burden. The question as regards burden of proof is procedural in nature. (See
Hiten P. Dalai v. Bratindranath Banerjee, (2001) 6 SCC 16 and M. S. Narayana Menon v.
State of Kerala, (2006) 6 SCC 39) 2001 AIR SCW 3861
17
. The presumption raised against the trader is a rebuttable one. Reserve burden as also
statutory presumptions can be raised in several statutes as, for example, the Negotiable
Instruments Act, Prevention of Corruption Act, TADA, etc. Presumption is raised only
when certain foundational facts are established by the prosecution. The accused in such
an event would be entitled to show that he has not violated the provisions of the Act. In a
case of this nature, particularly, when an appeal against the order of the Tribunal is
pending, we do not think that the appellants are entitled to take the benefit thereof at this
stage. Such contentions must be raised before the criminal Court. 2006 AIR SCW 4652
18. Commercial expediency or auditing of books of accounts cannot be a ground for

questioning the constitutional validity of a Parliamentary Act. If the Parliamentary Act is
valid and constitutional, the same cannot be declared ultra vires only because the
appellant faces some difficulty in writing off the bad debts in his books of accounts. He
may do so. But that does not mean the statute is unconstitutional or the criminal
prosecution becomes vitiated in law.
19. An order of discharge can be interfered with by the High Court on limited grounds. At
that stage, it need not be shown that the appellants may no ultimately be convicted. It is
enough if there exists a strong suspicion.
20. The factual matrix involved in the matter is one of the accounting. The burden being
on the appellants to show that they had taken all permissible steps as are provided for
under the law, the question of passing any order of discharge at this stage would not arise.
21. The export was to the tune of US $ 55,03,218.78. Appellants on their own showing
exported goods to the countries like USA, Canada, France, Indonesia, etc. They did not
obtain any general or special permission from the Reserve Bank of India for non-
realisation of export proceeds beyond six months which is the period specified under sub-
section (1) of Section 18 of the Act.
22. As all contentions as to whether the appellants have committed any offence or not
shall remain open, we are of the opinion that no case has been made out for interference
@page-SC2568
of the impugned judgment. The appeal is dismissed. No order as to costs.
Appeal dismissed.
AIR 2008 SUPREME COURT 2568 "K. Sagar, M.D., Kiran Chit Fund, Musheerabad v.
A. Bal Reddy"
Coram : 2 Dr. A. PASAYAT AND PRAKASH PRABHAKAR NAOLEKAR, JJ.
Civil Appeal No. 1498 of 2005*, D/- 11 -6 -2008.
K. Sagar, M.D., Kiran Chit Fund, Musheerabad v. A. Bal Reddy and Anr.
Consumer Protection Act (68 of 1986), S.18, S.21 - CONSUMER PROTECTION - CHIT
FUNDS - STATE COMMISSION - COMMISSIONS - Consumer Forum - Jurisdiction -
Complaint by member of Chit Fund - Order passed by Consumer Forum without
considering question of jurisdiction - Liable to be set aside - Matter remitted to State
Commission to consider question of jurisdiction. (Paras 7, 8, 9)
(1986-96) National Commission and SC on Consumer Cases 2469 (NS) (Rel. on) 5, 7
L. Rushmani, (for M/s. P.S.N. and Co.), for Appellant; A. Bal Reddy, Respodnent-in-
Person.
* From Order of the National Consumer Disputes Redressal Commission. New Delhi in
Revn. Petn. No. 1227 of 2001, D/- 12-4-2004.
Judgement
1. Dr. ARIJIT PASAYAT, J. :- Challenge in this appeal is to the order passed by the
National Consumer Disputes Redressal Commission, New Delhi (in short the 'National
Commission'). Before National Commission challenge was to the order passed by the
Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad (in short
the 'State Commission'). By its order dated 19-6-2001 the State Commission allowed the
appeal filed by the respondent No. 1 (hereinafter referred to as the 'Complainant'). The
District Forum II, Hyderabad had dismissed the complaint filed by the complainant.
2. Factual scenario giving rise to the revision before the National Commission is as
follows :
The complainant joined as a member in Chit Fund Co. of which opposite party No. 1 is
the Managing Director and opposite party No. 2 is the Manager. The present appellant
was running a chit for Rs. 1 lakh with monthly payment of Rs. 5,000/- for 20 months in
the year 1995. He was a prize bidder subscriber. He was paid Rs. 60,000/-by cheque. The
complainant defaulted after paying for 11 months from January, 1996. When the present
appellant issued a notice to him demanding an amount of Rs.79,300/-, the complainant
replied that out of the chit amount of Rs.70,000/-, the present appellant paid only
Rs.60,000/- and the balance of Rs. 10,000/- was payable to him with interest and that
since he paid Rs. 54,700/- already, he is ready to pay the balance of Rs.45,300/- in
instalments. The complainant approached the District Forum for a direction to the
opposite parties to pay Rs. 14,000/- to him.
3. Though the appellant i.e. Kiran Chit Fund accepted membership of the complainant to
the Chit Fund, it took the stand that the prize amount has been paid to M/s. Kiwanis
Finance Pvt. Ltd. as per the authorization letter of the complainant and no due certificate
was also given to the complainant. There was exchange of affidavits. The District
Commission proceeded on the basis that admittedly the complainant was a defaulting
prized subscriber. It also held that there was no scope of taking any action on the
complaint. Accordingly, the complaint was dismissed. In appeal, the State Commission
took the view that a sum of Rs. 45,300/- was to be paid to the complainant. It took the
view that whether the chit fund was a consumer cannot be adjudicated in the appeal.
Accordingly the appeal filed by the complainant was allowed. The National Commission
was of the view that in the cheque somebody had added some figures but who did the
mischief was not known. However since somebody has committed the mischief, the
revision petitioner before it cannot be granted any benefit. The revision petition was
accordingly dismissed without cost.
4. In support of the appeal, learned counsel for the appellant submitted that the Consumer
Forums have no jurisdiction to entertain the dispute between a chit fund and one of its
prized subscribers or between the prized subscribers.
@page-SC2569
5. Strong reliance was placed on a decision of the National Commission in M/s.
Dwarkadish Chits Pvt. Ltd. and Anr. vs. Sanju Ram Aggarwal in First Appeal No. 590 of
1992, decided on 13th January, 1995 reported in (1986-96) National Commission and SC
on Consumer Cases 2469(NS).
6. Learned counsel for the respondent No. 1 who appeared in person took the stand that
this issue was not specifically raised before the Forums below and therefore should not be
entertained.
7. We find that M/s. Dwarkadish Chits' case (supra) dealt with the issue of jurisdiction
under the Consumer Protection Act, 1986 (in short the 'Act') as to whether the Consumer
Forums established under the Act have jurisdiction to entertain dispute between the chit
fund and one of its prized subscriber or between the subscribers. It is not correct as
contented by the respondent No. 1 that the question of jurisdiction was not raised. In fact
the State Commission observed that since the respondents before it i.e. functionaries of
the chit fund were not consumers, the issue regarding jurisdiction cannot be adjudicated
in the appeal before it. The National Commission unfortunately does not appear to have
referred to its earlier decision while dismissing the revision petition.
8. In the aforesaid background, we are of the view that the issue relating to jurisdiction
has to be decided by the Forums first.
9. We, therefore, set aside the impugned order of the National Commission confirming
the order passed by the State Commission, and remit the matter to the State Commission
to consider the question of jurisdiction. To avoid unnecessary delay let parties appear
before the State Commission without further notice on 7th of July, 2008 so that the date
of hearing can be fixed. We make it clear that we have not expressed any opinion on the
merits of the case. The parties are permitted to produce certified copy of the judgment so
that necessary follow up action can be taken.
10. The appeal is allowed to the aforesaid extent with no order as to costs.
Order accordingly.
AIR 2008 SUPREME COURT 2569 "Ghaziabad Development Authority v. Ved Prakash
Aggarwal"
Ghaziabad Development Authority v. Ved Prakash Aggarwal.
(A) Monopolies and Restrictive Trade Practices Act (54 of 1969), S.36A -
PRACTICE - ALLOTMENT OF PREMISES - DEVELOPMENT AUTHORITY - Unfair
trade practice - Allotment of plot under Scheme by appellant/Ghaziabad Development
Authority (GDA) to respondent - Cancellation of, after many years - Plea by appellant
that there was no specific allotment order made in favour of respondent - Respondent was
successful in draw of lots - He had paid full amount - Appellant had already issued
reservation/allocation letter in his favour - Finding of Commission, therefore, that act of
GDA in cancelling allotment amounted to unfair trade practice - Proper. (Para 6)
(B) Monopolies and Restrictive Trade Practices Act (54 of 1969), S.36D, S.12A, S.12B -
PRACTICE - ALLOTMENT OF PREMISES - Unfair trade practice - Relief admissible -
Cancellation of allotment of plot - Action found to be arbitrary - MRTP Commission has
power to impose damages or to direct authority to give compensation - However, it
cannot direct authority to allot alternative plot to complainant. (Para 7)
Vijay Hansaria, Sr. Advocate, Reena Singh and Jatinder Kumar Bhatia, with him for
Appellant; Gaurav Jain and Ms. Abha Jain, for Respondent.
Judgement
TARUN CHATTERJEE, J. :- This appeal at the instance of Ghaziabad Development
Authority (in short "the GDA") is filed against the judgment and order dated 3rd of
August, 2000 passed by the Monopolies and Restrictive Trade Practices Commission,
New Delhi (in short 'the MRTP Commission') in R.T.P.E. No.82 of 1998 by which the
MRTP Commission had directed the GDA to deliver possession of a plot of 90 sq. mtrs.
to the complainant/respondent in Govindpuram Scheme or any adjacent scheme at a price
prevalent in the year 1988.
2. The dispute in this appeal pertains to the allotment of certain land by the GDA in its
Govindpuram Scheme. In the complaint
@page-SC2570
filed before the MRTP Commission by the respondent, it was alleged that the GDA had
first allotted certain land to him and after many years, cancelled the allotment arbitrarily.
The respondent also claimed the refund of the invested amount. Challenging the
cancellation of allotment as arbitrary and also for refund of the invested money, a
proceeding was initiated at the instance of the respondent before the MRTP Commission
alleging that the cancellation of the allotment by the GDA was not only arbitrary but also
indicative of its monopolistic hold on the land and therefore, it amounted to an unfair
trade practice under the MRTP Act. The GDA entered appearance and denied the
allegations made in the complaint, inter alia, alleging that no specific allotment order was
made by the GDA and, therefore, cancellation of the same did not arise at all. It was
further stated by the GDA in their written objection to the complaint that the long delay
was attributable to the fact that the scheme was tied up in litigation for many years and
when that litigation was over, the draw prescribed for allotment of land was held. Since
the respondent had failed in this draw, the allotment of the land could not be made and
therefore, the refund was offered. After hearing the parties and on the basis of the
available records, the MRTP Commission held that the land was indeed allotted to the
respondent and the cancellation of the respondent's allotment when other allottees had
been given the plots in the same circumstances amounted to an "unfair trade practice"
under Section 36 of the MRTP Act. The MRTP Commission also held that the respondent
had suffered pecuniary losses and damages. Based on these findings, the MRTP
Commission directed the GDA to allot 90 sq. mtrs. of plot to the respondent in
Govindpuram Scheme and in case the plot was not available, to hand over the possession
of vacant plot of the same size to the respondent in other schemes nearby the
Govindpuram Scheme at the previously decided price. Feeling aggrieved by this order,
the GDA has come up in appeal in this Court.
3. Having heard the learned counsel for the parties and after going through the order of
the MRTP Commission as well as the other available records, two questions crop up
before us for decision of this appeal :-
(i) Whether any unfair trade practice was resorted to by the GDA;
(ii) Whether the MRTP Commission had the jurisdiction to direct the GDA to allot an
alternative plot of land to the respondent at the previously fixed price under the MRTP
Act.
4. Before we go into these questions, we may, at this stage, narrate certain other facts
also, which would be required for decision in this appeal. In October 1988, the GDA had
floated a housing scheme the particulars of which are reproduced as under.
"Col.3.40 - This scheme relates to pay plan which says that the plots/houses under these
schemes are being constructed under lump sum plan (code 1), self financing plan (code 2)
and hire purchase plan (code 3).
Col.3.43 the reservation amount, as mentioned in column 8 of table 1 is to be paid within
30 days from the date of reservation letter.
Col. 3.66 If payment fixed for such allotment of land is not made within three months
after its due date along with penal interest, if any, the allotment shall be treated as
cancelled without notice. The GDA reserves its right to cancel for non-payment within
the time specified in column 3.66 without notice.
Col.8 The allotment will be made by a manual computerized draw in the presence of
applicants who wish to be present as per the serial Nos. of the application forms. Claim
for any particular house by any applicant will not be acceptable. Dates of lottery for
reservation and allotment shall be published in the newspaper. Col.9 speaks about
unsuccessful applicants.
Col. 9.10 Those applicants, who have not been allotted/reserved plots/houses, will be
returned their registration amount without interest if the period of deposit of such money
with the GDA is less than one year.
Col.9.20 If the period of deposit is more than one year 5% simple interest shall be paid
for the entire period of deposit.
Co.9.30 For the purpose of calculation of period of deposit the month of deposit and
refund
@page-SC2571
shall not be counted. Any period after the date of start of refund of registration amount of
unsuccessful applicants, shall not be counted for the purpose of calculation of 'period of
deposit'."
Keeping the columns, as noted herein above, in mind, let us now proceed with the other
subsequent relevant documents. A letter dated 10th of February, 1989 issued by the GDA
to the respondent is one of the important documents that needs to be considered by us in
disposing of this appeal. This letter indicates reservation of Plot E in Govindpuram
Scheme and the estimated cost is shown as Rs.55,800/-. The payment schedule as
appearing from the same is as under :-
The due date for payment is 10th of March, 1989 and the amount due indicated in the
said letter is Rs.50,000/-. The conditions for taking account for non-payment is shown in
the following manner -
(i) The grace period of one month shall be given for payment of the above amount after
the due date.
(ii) If the amounts payable to the GDA are not paid within the prescribed time limit, penal
interest at the rate of 18% per annum shall be payable along with the payable amounts. If
the payment is not made within three months after its due date along with penal interest,
if any, the allotment shall be treated cancelled without notice.
The reservation of Plot E in Govindpuram Scheme so far as the respondent was
concerned was subject to rules and regulations in force, prescribed from time to time by
the GDA or the State Government. It was also stated in the letter that the terms and
conditions as stipulated in the brochure of above scheme hold good and the allocation
was subjected to those conditions. Draw for specific plot number was to be held
separately.
5. Having considered the relevant materials, as noted hereinabove, let us now look at the
findings of the MRTP Commission based on which it has passed the impugned order. The
findings are as under :-
1. By a reservation letter dated 10-2-1989, the GDA intimated the complainant regarding
reservation/allocation of a plot in Plot E category in Govindpuram Plots Scheme in the
name of the complainant and was allotted/reserved allottee code 9 No. 539 700 0070 for
an approximate area of 90 sq. metres.
2. The complainant deposited Rs. 45000/- vide demand draft dated 10-4-1989 with the
GDA within grace period and the balance Rs. 5000 was paid vide demand draft dated 7-
1-1990 with 18% penal interest amounting to Rs. 750/- and therefore, the complainant
had deposited a total sum of Rs. 58000/- by the end of January, 1990.
3. The order of the Allahabad High Court in Satya Prakash vs. State of U. P. dated 24-4-
1991 nowhere mentioned that the area of the Govindpuram scheme had been reduced and
therefore the reason given by the GDA was not supported by this order of the Allahabad
High Court.
6. We have examined the findings of the MRTP Commission in the light of the materials
on record. Having done that, it is difficult to conceive that the respondent was
unsuccessful in the draw of lots as alleged by the GDA, which is the excuse given by
them for not giving the possession of the plot to the respondent. It is an admitted fact that
the GDA had already issued a reservation/allocation letter to the respondent and it is also
a finding of the MRTP Commission that the respondent had paid the full amount of
Rs.58000/-. This shows that the respondent was successful in the draw of lots because
otherwise, where was the need for the GDA to issue the reservation/allocation letter to the
respondent which also required him to make the necessary payments. In this view of the
matter, we affirm the finding of the MRTP Commission that the act of the GDA
amounted to an unfair trade practice.
7. Having decided issue No.1 in the manner indicated above, the other question that we
need to decide is whether the MRTP Commission had the jurisdiction to direct the GDA
to handover possession of a vacant plot of 90 sq. mtrs. to the respondent in the
Govindpuram scheme or if not available, an alternative plot in some other scheme. So far
as this question is concerned, we hold that the MRTP Commission was clearly in error in
directing the GDA to handover possession to the respondent, under the Act, there are
provisions for
@page-SC2572
inquiries that can be instituted by the MRTP Commission while Section 36D read with
Sections 12A and 12B lay down the powers of the MRTP Commission in dealing with
instances of Unfair trade practices. None of the provisions seem to indicate that the
MRTP Commission has the authority to do what it did in this case. The MRTP
Commission has the power to impose damages or give compensation to the respondent as
a mode of redressal for harm caused by the unfair trade practices, but it certainly cannot
assume the powers of the civil Court because the action of the MRTP Commission in this
case virtually amounts to grant of specific performance.
8. In this view of the matter and in view of the foregoing reasons, we consider it
appropriate to remand this appeal to the MRTP Commission for decision afresh on the
compensation, which may be given to the respondent in accordance with law along with
refund of the amount deposited by the respondent with the GDA with simple interest. The
appeal is thus allowed to the extent indicated above. No costs.
Appeal allowed.
AIR 2008 SUPREME COURT 2572 "Buddha Tri-Ratna Mission v. Delhi Development
Authority"
(From : Delhi)
Buddha Tri-Ratna Mission v. Delhi Development Authority and Ors.
Delhi Development Act (61 of 1957), S.22 - DEVELOPMENT AUTHORITY -
ALLOTMENT OF PREMISES - HIGH COURT - SUPREME COURT - Allocation of
Land to Institution - Cancellation - Petition against - Sum of Rs. 10,50,000 already
deposited by allottee as directed by High Court - Status quo order granted by Supreme
Court in year 2000 - Supreme Court in facts directed authority not to cancel allotment of
land, if not already cancelled, if allottee deposits the balance amount within two months.
(Para 3)
Rakesh K. Sharma, for Appellant; Kiran Bhardwaj, B. K. Prasad, Shreekant N. Terdal,

Ms. Indra Sawney, Vishnu B. Saharya and Ms. Saharya and Co., for Respondents.
Judgement
JUDGMENT :- This appeal is preferred against the judgment and order dated 22nd of
May, 2000 passed by a Division Bench of the High Court of Delhi in LPA No. 226 and
CM Nos. 846-848/2000.
2. We have heard the learned counsel for the parties and also examined the order under
appeal. While dismissing the appeal in limine, the Division Bench of the High Court was
not in a position to accept the submission of the learned counsel for the appellant that the
appellant need not be entirely a charitable institution. It was rightly pointed out by the
Division Bench that the learned single Judge of the Delhi High Court did not rightly
consider the cases in the context of Section 115 of the Delhi Municipal Corporation Act
as relevant. As according to them, the said provision was totally different and in this view
of the matter, the LPA was dismissed : However, after dismissing the appeal, the Division
Bench had further issued a notice to the Land and Development Officer and Delhi
Development Authority which was confined to the aspect of deposit of balance amount. It
appears from the said order that a sum of Rs. 10,50,000/- was already deposited as per
direction of the High Court and accordingly there was a stay of cancellation of allotment
of land in favour of the appellant. It was further directed that till the next date of hearing,
the respondent would not cancel the allotment of the land in favour of the appellant. After
the leave was granted on 9th of August, 2002, this Court directed, as an interim measure,
the parties to maintain status quo till the disposal of the appeal. This interim order of
status quo is still continuing.
3. After hearing learned counsel for the parties and after considering the fact that Rs.
10,000/- had been deposited as per direction of the Delhi High Court and that the status
quo order was granted by this Court in the year 2000, we only direct that if the appellant
deposits the balance amount, if not already deposited in the High Court, within two
months from the date of supply of a copy of this order, the respondents shall not cancel
the allotment of the land made in favour of the appellant if cancellation of the allotment
of the land in favour of the appellant has not already been done by the Delhi
Development Authority and others.
4. With these observations, we dispose of the appeal. There will be no order as to costs.
Order accordingly.
@page-SC2573
AIR 2008 SUPREME COURT 2573 "Syed Peda Aowalia v. Public Prosecutor, High
Court of A. P., Hyderabad"
Syed Peda Aowalia v. Public Prosecutor, High Court of A. P., Hyderabad.
Criminal P.C. (2 of 1974), S.378 - APPEAL - APPELLATE COURT - Appeal against
acquittal - Interference - Permissible only if there are compelling and substantial reasons
for doing so - Parameters for inference with acquittal - Explained - Order passed by
appellate Court in disregard to set parameter - Liable to be set aside.
Criminal Appeal No. 1937 of 1999, D/-17-08-2001 (AP), Reversed. (Paras 5, 7)
1994 AIR SCW 2210 : 1995 Cri LJ 457 : 1994 All LJ 1032 6
G. Ramakrishna Prasad, for Appellant; Mrs. D. Bharathi Reddy, for Respondent.
Judgement
Dr. ARIJIT PASAYAT, J. :- Challenge in this appeal is to the judgment of a Division
Bench of the Andhra Pradesh High Court allowing the appeal filed by the State so far as
present appellant is concerned while upholding the acquittal of other accused persons.
The learned IV Additional Sessions Judge, Guntur had directed acquittal of all the five
accused persons who faced trial for commission of offence punishable under Section 302
and Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short the 'IPC').
The trial Court on analyzing the evidence had found that the prosecution has not been
able to establish its accusations and accordingly directed acquittal. The State filed an
appeal in terms of Section 378 (1) and (3) of the Code of Criminal Procedure, 1973 (in
short the 'Code'). The High Court by the impugned order allowed the appeal so far as the
present appellant is concerned while dismissing the appeal of the State so far as the other
accused persons are concerned.
2. Learned counsel for the appellant submitted that the High Court has not discussed the
evidence of the witnesses and has come to abrupt conclusions about the acceptability of
the evidence.
3. Learned counsel for the respondent-State on the other hand submitted that though the
High Court has not analysed the evidence in detail, its conclusions are not erroneous.
4. It is not necessary to go into the factual position in detail as we find that the appeal
filed by the State has been disposed of in perfunctory manner.
5
. There is no embargo on the appellate Court reviewing the evidence upon which an order
of acquittal is based. Generally, the order of acquittal shall not be interfered with because
the presumption of innocence of the accused is further strengthened by acquittal. The
golden thread which runs through the web of administration of justice in criminal cases is
that if two views are possible on the evidence adduced in the case, one pointing to the
guilt of the accused and the other to his innocence, the view which is favourable to the
accused should be adopted. The paramount consideration of the Court is to ensure that
miscarriage of justice is prevented. A miscarriage of justice which may arise from
acquittal of the guilty is no less than from the conviction of an innocent. In a case where
admissible evidence is ignored, a duty is cast upon the appellate Court to re-appreciate
the evidence where the accused has been acquitted, for the purpose of ascertaining as to
whether any of the accused really committed any offence or not. [See Bhagwan Singh
and Ors. v. State of Madhya Pradesh (2002 (2) Supreme 567)]. The principle to be
followed by appellate Court considering the appeal against the judgment of acquittal is to
interfere only when there are compelling and substantial reasons for 2002 AIR
SCW 1532
1996 AIR SCW 2438
2000 AIR SCW 1430
2003 AIR SCW 5095
2003 AIR SCW 4065
2003 AIR SCW 5044
2006 AIR SCW 3568
@page-SC2574
doing so. If the impugned judgment is clearly unreasonable and relevant and convincing
materials have been unjustifiably eliminated in the process, it is a compelling reason for
interference. These aspects were highlighted by this Court in Shivaji Sahabrao Bobade
and Anr. v. State of Maharashtra (AIR 1973 SC 2622), Ramesh Babulal Doshi v. State of
Gujarat (1996 (4) Supreme 167), Jaswant Singh v. State of Haryana (2000 (3) Supreme
320), Raj Kishore Jha v. State of Bihar and Ors. (2003 (7) Supreme 152), State of Punjab
v. Karnail Singh (2003 (5) Supreme 508), State of Punjab v. Pohla Singh and Anr. (2003
(7) Supreme 17) and V. N. Ratheesh v. State of Kerala (2006 (10) SCC 617).
6. The conclusions of the High Court read as follows :
"It is true that there is some delay in reaching a copy of FIR to the residence of the
Magistrate, but it cannot be said that it is inordinate delay. According to the version of
PW-1 and also the version of PWs 14 and 15 the first information was given by PW-1 at
about 10.30 a.m. and on the strength of which PW-14 registered the case against the
accused. The evidence of PW-15 shows that he got a copy of FIR at about 1.30 p.m. but
he did not note down the timing on the copy of FIR on receipt of the same. But, it has
been a positive case of PW-15 that he received copy of FIR at 1.30 p.m. Once this version
is accepted, then the defence version that the FIR was given at 8.30 p.m. has to be
rejected.
Mr. Movva Chandra Sekhar Rao, learned counsel appearing for the appellants relied upon
a ruling reported in Meharaj Singh v. State of U.P. (1994 (5) SCC 188), in which the
Apex Court had laid down that inordinate delay in filing the first information has to be
explained. We have no hesitation in accepting the above said proposition. We have come
to the conclusion that PW-1 had given the first information report at the Police Station at
about 10.30 a.m., immediately after removing the injured to the Hospital at Guntur. If
there is some delay in sending the copy of FIR to the Magistrate, then straightway a
conclusion cannot be drawn that the FIR was not laid at the time as spoken to by PW-1.
1994 AIR SCW 2210
It is not the case of the defence that there is political rivalry between the accused party
and the deceased party. Therefore, this Court finds no reason for PWs 1 to 3 and 5 to
concoct a story against A. 1. Under these circumstances, we have no hesitation in holding
that the prosecution was able to prove that A-1 was responsible for causing the death of
the deceased and he is guilty of the offence punishable under Section 302 of the Indian
Penal Code.
The role attributed to A-2 to A-5 in this case by the prosecution witnesses is very minor.
Only their presence was secured through their evidence. They had not participated in
killing the deceased and, therefore, this Court is of a considered view that A-2 to A-5
cannot be held responsible for causing the death of the deceased. Under these
circumstances, we pass the following order :
The appeal filed by the State is allowed as far as A-1 is concerned. A-1 is convicted and
sentenced to suffer imprisonment for life and he is directed to surrender the learned IV
Additional Sessions Judge, Guntur, forthwith. The appeal filed by the State against A-2 to
A-5 stands dismissed."
7. We find that the High Court has not applied its mind to the various aspects and the
position in law as highlighted above relating to the scope for interference in appeal
against an order of acquittal. In the circumstances, we set aside the impugned order and
remit the matter to the High Court for fresh consideration in accordance with law only in
respect of appellant. State has not questioned, it is to be noted, the High Court's order
upholding acquittal of A2 to A5 as was done by the trial Court.
Appeal dismissed.
AIR 2008 SUPREME COURT 2574 "Nehru v. State of Chhattisgarh"
(From : 2001 Cri LJ 1118 (Madh Pra))
Nehru @ Jawahar v. State of Chhattisgarh.
Penal Code (45 of 1860), S.376 - RAPE - FIR - Rape - Proof - Accused pleading that
victim was medically examined even before filing of F.I.R. - Original document however,
showing otherwise - Plea of consent
@page-SC2575
- Also disproved by evidence of prosecutrix - Conviction of accused, proper (Paras
5, 7, 8, 9)
Shishir Pinaki (A.C.), for Appellant; Arul Jha, Dr. Manish Singhavi, D. K. Sinha and
Rajesh Srivastava, for Respondent.
Judgement
1. Dr. ARIJIT PASAYAT, J. :- Challenge in this appeal is to the judgment of a learned
Single Judge of the Madhya Pradesh High Court upholding the conviction of the
appellant for offence punishable under Section 376 of the Indian Penal Code, 1860 (in
short the 'IPC'). But the sentence of seven years as was imposed by the trial court i.e. the
Court of Session Judge, Rajnandgaon was reduced to five years and fine of Rs.20,000/-
was imposed under Section 357(1) of the Code of Criminal Procedure, 1973 (in short the
'Cr.P.C.'). It was held that in case the fine is not paid within the stipulated time, custodial
sentence of seven years as imposed by the trial court shall be maintained.
2. According to prosecution in the morning of 10th June, 1988 the accused had taken the
advantage of the helplessness of the victim and committed rape on her. First Information
Report was lodged around 11 a.m., and she was sent for medical examination. The
accused after his arrest on 12th June, 1988 was sent for medical examination. Certain
articles were also sent for chemical examination. After completion of the investigation,
charge sheet was filed and the accused pleaded innocence and false implication. The
prosecution in order to establish the accusations examined several witnesses including the
prosecutrix who was examined PW2 and the doctor, who examined PW 7. The
investigating officer was examined as PW 9. PW 8 was the sub-inspector posted in the
Rajnandgaon police station. Before the trial court the prosecutrix stated the age of the
victim to be 14 years. Since the accused was taking the plea of consent, the prosecution
rely on clause six of Section 375, I.P.C. to contend that consent was of no consequence as
she was below 16 years of age. In any event, there was no evidence of any consent. The
trial court found the age of the victim to be around 16 years. But it came to the
conclusion that there was no consent as claimed by the accused. Accordingly the
conviction was recorded and the sentence of seven years imprisonment was imposed
alongwith fine of Rs. 100/-. As noted above the High Court in the appeal filed by the
appellant maintained the conviction and sentence of five years and enhanced the fine to
Rs.20,000/-. It was indicated that in case the fine was paid the same was to be given to
the victim and in case it was not paid, the sentence imposed by the trial court was to be
maintained.
3. In support of the appeal learned counsel for the appellant submitted that there are
certain suspicious circumstances; firstly admittedly the FIR was lodged at 11 p.m. but
strangely the doctor claimed that she examined the victim at 9.15 a.m. Secondly the
victim in her cross examination had clearly stated that her consent was there.
4. Learned counsel for the respondent-State on the other hand submitted that the
submissions are without substance and are contrary to the evidence on record.
5. We shall first deal the question as to the time when the victim was examined by the
doctor. Though the doctor PW 7 stated that she had examined her at 9.15 a.m., there is
some confusion. Ex. P.8 is the document by which the police officer sent the victim for
medical examination. The doctor has clearly mentioned the time of examination to 9.15
p.m. We referred to the original document on record and therefore we find no substance
in this plea of learned counsel for the appellant that examination was at 9.15 a.m.
6. So far as the question of consent is concerned, learned counsel for the appellant
referred to cross examination of the victim, more particularly question No. 10. The
question and the answer given by the prosecutrix read as follows :
"Q. Is it true that as accused didn't take the wood therefore, you have falsely accused
him?
A. (Witness stated yes, thereupon question was repeated, then she stated that) it is not
correct."
7. The answers at paragraphs 13 and 14 also relevant, they read as follows :
"13. Haying taken me inside the school accused unloaded the wood stack I was carrying
on my head and told me to go inside the room but I didn't go into the room. Thereupon
accused caught hold me- when I shouted accused gagged me and thereafter he took me
inside the room and made me to lie thereafter he lifted my petticoat. When
@page-SC2576
I hit him with the leg he caught hold my leg. I had beaten him with the hand also
thereupon accused caught hold my hand, when accused released my mouth, I tried to yell,
he again gagged me.
14. The flooring of the room of the school is of stone where accused had made me lie on
the ground. I tried to release myself from the grip of the accused with the result my body
waist had scratched."
8. Above being the position the plea of consent is without substance.
9. The appeal lacks merit, deserves dismissal, which we direct.
10. We record our appreciation for the able manner in which Mr. Shishir Pinaki, learned
Amicus Curiae assisted the Court.
Appeal dismissed.
AIR 2008 SUPREME COURT 2576 "N. R. Mon v. Md. Nasimuddin"
(From : Gauhati)*
N.R. Mon v. Md. Nasimuddin.
Narcotic Drugs and Psychotropic Substances Act (61 of 1985), S.37 - NARCOTIC
DRUGS - BAIL - Bail - Accused found in possession of six packets of Ganja - Grant of
bail to accused without taking note of S.37 or considering its effect - Order granting bail
is liable to be set aside.
2003 (11) SCC 764, 2004 AIR SCW 1640, 2005 AIR SCW 3255, 2005 (12) SCC 480,
Rel. on.
Cri. Revn. Petn. No. 7 of 2000, D/-12-14-2000 (Gau), Reversed. (Paras 5, 10)
2005 AIR SCW 3255 : 2005 All LJ 2334 : 2005 Cri LJ 3115 (Rel. on) 8
(2005) 12 SCC 480 (Rel. on) 9
(2003) 11 SCC 764 (Rel. on) 6
B. B. Singh, T. A. Khan and Ms. Sushma Suri, for Appellant; Mrs. Anjani Aiyagari, for
Respondent.
* Cri. Revn. Petn. No. 7 of 2000, D/- 12-4-2000 (Gau) (Imphal Bench).
Judgement
Dr. ARIJIT PASAYAT, J. :- Challenge in this appeal is to the judgment of the learned
single Judge of the Gauhati High Court, Imphal Bench, upholding the order passed by the
learned Special Judge, NDPS, Manipur, Imphal, in Cri. Complaint Case No. 32 of 2000,
by which ball was granted to the respondent.
On 17-1-2000 the appellant received information in writing from a casual source that a
Tata truck bearing registration No. MN-5113 carrying Ganja would be proceeding from
Imphal area towards Guwahati in the early hours of 18-1-2000. It was immediately
reported by the appellant to its superior officer i.e. Superintendent, NCB, RU, Imphal,
who issued order to the appellant to take necessary action. The appellant along with other
members of staff of the NCB led by the Superintendent kept vigil along the Imphal-
Ukhrul road and started checking of vehicles. Around 7.00 a.m. on 18-1-2000 a Tata
truck was seen approaching the road. The said vehicle was intercepted and stopped by the
appellant. The vehicle was occupied by a driver (the respondent herein) and one Purna
Bahadur handyman. The vehicle, the accused and the handyman were brought to the
Revenue complex for a thorough checking. After following procedure laid down under
Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'the
Act'), the respondent and the driver were asked whether they would like to be taken
before the Magistrate or the Gazetted Officer. During search 6 packets of Ganja in
pressed form, from a specially constructed chamber in the fuel tank were recovered. On
weighing, the same was found to be 163 kgs. in total. The representative samples were
taken and sent for analysis by the Chemical Examiner of the Government of Assam, at
the State Forensic Science Laboratory in Guwahati. The voluntary statement of the
respondent was recorded in the presence of the witnesses on 18-1-2000. The respondent
was put on arrest under Section 43(a) of the Act and case was registered for offence in
relation to possession punishable under Sections 20, 29 and 60 of the Act. The Forensic
Science Laboratory report was to the effect that the sample was Ganja. On 4-3-2000 an
application for
@page-SC2577
bail was filed before the learned Special Judge, NDPS, Manipur, Imphal, under Section
437 of the Code of Criminal Procedure, 1973 (in short 'Cr.P.C.') and Section 37(b)(ii) of
the said Act. But without taking note of Section 37 of the Act, bail was granted. The same
was challenged before the High Court. By the impugned order, the same was rejected.
The High Court noted that attendance of the accused can be secured by means of bail
bonds already signed. He may be allowed the respondent to remain on bail in order to
enable him to have adequate consultation with the lawyer of his choice.
3. Learned counsel for the appellant submitted that the parameters of Section 37 have not
been kept in view by the trial Court and High Court. Learned counsel for the respondent
supported the order.
4. Section 37 of the Act reads as follows :
"37. Offences to be cognizable and non-bailable.
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of
1974),
(a) Every offence punishable under this Act shall be cognizable;
(b) No person accused of an (offences under Section 19 or Section 24 or Section 27A and
also for offences involving commercial quantity) shall be released on bail or on his own
bond unless -
(i) The Public Prosecutor has been given an opportunity to oppose the application for
such release, and
(ii) Where the Public Prosecutor opposes the application, the Court is satisfied that there
are reasonable grounds for believing that the he is not guilty of such offence and that he is
not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in Clause (b) of sub-section (1) are in
addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974), or
any other law for the time being in force on granting of bail."
5. As rightly contended by learned counsel for the appellant, the effect of Section 37 has
not been noticed by either the trial Court or the High Court. The position relating to grant
of bail in the background of Section 37 of the Act has been considered by this Court in
several cases.
6. In Union of India v. Gurcharan Singh (2003 (11) SCC 764), it was noted as follows :
"5. On a bare perusal of the impugned order of the High Court, we are satisfied that the
High Court has not borne in mind the provisions of Section 37 of the Act before releasing
the accused-respondent on bail. We, therefore, set aside the order and allow this appeal.
We direct that the trial be concluded expeditiously."
7
. In Public Prosecutor of Customs, New Delhi v. Ahmadalieva Nodira (2004 (3) SCC
549) it was noted at page 552 as follows : 2004 AIR SCW 1640
"6. As observed by this Court in Union of India v. Thamisharasi, Clause (b) of subsection
(1) of Section 37 imposes limitations on granting of bail in addition to those provided
under the Code. The two limitations are : (1) an opportunity to the Public Prosecutor to
oppose the bail application, and (2) satisfaction of the Court that there are reasonable
grounds for believing that the accused is not guilty of such offence and that he is not
likely to commit any offence while on bail. 1995 AIR SCW 2543
7. The limitation on granting of bail come in only when the question of granting bail
arises on merits. Apart from the grant of opportunity to the Public Prosecutor, the other
twin conditions which really have relevance so far as the present accused-respondent is
concerned, are : the satisfaction of the Court that the accused is not guilty of the alleged
offence and that he is not likely to commit any offence while on bail. The conditions are
cumulative and not alternative. The satisfaction contemplated regarding the accused
being not guilty has to be based on reasonable grounds. The expression "reasonable
grounds" means something more than prima facie grounds. It contemplates substantial
probable causes for believing that the accused is not guilty of the alleged offence. The
reasonable belief contemplated in the provision requires existence of such facts and
circumstances as are sufficient in themselves to justify satisfaction that the accused is not
guilty of the alleged offence. In the case at hand the High Court seems to have completely
overlooked the underlying object of Section 37. It did not take note of the confessional
statement recorded under Section 67 of the Act. Description of drug at Serial No. 43 of
the Schedule which reads as follows has not been kept in view :
@page-SC2578
"Sl. No. International non-proprietary names Other non-proprietary names

Chemical name
* * *
43 DIAZEPAM 7-Chrolo-1, 3-dihydro-1, methyl-5-phenyl-2H- 1, 4-
benzondiasepin-2-one
* * *?
In addition, the report of the Central Revenue Control Laboratory was brought to the
notice of the High Court. The same was lightly brushed aside without any justifiable
reason.
8
. In Union of India v. Abdulla (2004 (13) SCC 504) it was noted as follows : 2005
AIR SCW 3255
"5. The respondent herein was charged of the offences punishable under Sections
8/21/29/60 of the Narcotic Drugs and Psychotropic Substances Act, 1985 before the
Court of Special Judge, Lucknow. His application for grant of bail was rejected by the
Special Judge by assigning reasons therefor. Further application being made to the High
Court of Judicature at Allahabad, the High Court without considering the mandatory
requirement of Section 37 of the Act and without coming to the prima facie conclusion
that there was no material against the respondent to convict him for the charges alleged
against him mechanically proceeded to grant the bail. This Court in the case of Supdt.
Narcotics Control Bureau v. R. Paulsamy, (2000) 9 SCC 549, has held that in matters
arising out of the Narcotic Drugs and Psychotropic Substances Act grant of bail is
controlled by Section 37 of the Act and it is mandatory for the Court to hear the Public
Prosecutor and come to the prima facie conclusion that there is no material to come to the
conclusion that the accused could be held guilty of the charges levelled against him.
Since such a conclusion is not recorded by the High Court and is not supported by
reasons we think the impugned order cannot be sustained." 2000 AIR SCW 4131
9. In Narcotics Control, Bureau v. Karma Phuntsok and Ors. (2005 (12) SCC 480) it was
noted as follow :
"4. The respondents were convicted under Section 29 read with Section 20(b)(ii)(c) of the
Narcotic Drugs and Psychotropic Substances Act, 1985 (the NDPS Act) and sentenced to
rigorous imprisonment for 10 years and a fine of Rs. 1000. On appeals being filed, the
learned Judge suspended the sentence and the respondents were enlarged on bail on
executing a personal bond for a sum of Rs. 50,000 with one surety for the like amount, to
the satisfaction of the trial Court. We have perused the order passed by the learned Judge
and we find that there is not even a whisper about the condition contained in Section 37
of the NDPS Act with regard to enlarging of the accused on bail. Mr. Jaspal Singh,
learned Senior Counsel appearing for the respondents contended that the learned Public
Prosecutor did not oppose the bail as contained in Section 37(1)(b)(ii) of the NDPS Act.
According to him, unless the Public Prosecutor opposes the bail application, Section 37
will not apply. Mr. Singh seriously contended that inasmuch as the appellant have not put
on record that the Public Prosecutor had opposed the granting of bail it must be presumed
that this is an order covered under Section 37(3) read with Section 439, Cr.P.C. To say the
least, the argument appears to be baseless. We cannot accept the contention that in a
matter involving seizure of commercial quantity of a substance prohibited by the NDPS
Act when the Public Prosecutor appears on notice of the bail application he would be
standing there as a mute spectator not opposing the bail application unless he was at the
back of the accused. We find no substance in this agreement. In our view, the very fact
that the Public Prosecutor appeared would suggest that he appeared to oppose the bail
application. In any event, the order of the High Court does not suggest that the Public
Prosecutor had agreed for bail being granted. In the aforesaid circumstances, we find no
substance whatsoever in the connection raised by Mr. Singh."
10. Since the trial Court and the High Court have not kept these aspects in view,
@page-SC2579
the order granting bail is clearly unsustainable and is set aside. The appeal is allowed.
Appeal allowed.
AIR 2008 SUPREME COURT 2579 "Municipal Corporation, Hyderabad v. Sunder
Singh"
-2008.
Municipal Corporation, Hyderabad v. Sunder Singh.
Civil P.C. (5 of 1908), O.41, R.23 (as amended in A.P.) and R.23A - APPEAL -
REMAND OF MATTER - HIGH COURT - EVIDENCE - Remand - Powers of Court -
Application for adducing secondary evidence - Rejection - Appeal allowed and matter
remitted back to trial Court by High Court - Suit not decided on preliminary issue - O.41,
R.23 in such case not available - High Court not arriving at finding that re-trial was
necessary - Nor finding given by High Court that decree was liable to be reversed - O.43,
R.23A also not available on what basis secondary evidence was allowed to be led not
clear - Order of remand liable to be set aside.
CCCA No. 64 of 1998, D/-08-04-2004 (A.P.), Reversed. (Paras 19, 20, 21)
2008 AIR SCW 3324 (Ref.) 20
AIR 1972 SC 2510 (Ref.) 3
L. N. Rao, Sr. Advocate, G. Ramakrishna Prasad, Suyodhan Byrapaneni, Siddharth
Patnaik and G. Arun, for the Appellant; M. N. Rao, Sr. Advocate Ms. Promila, A. Ramesh
and Anshuman, with him for Respondent.
* C. C. C. A. No. 64 of 1998, D/- 8-4-2004 (A.P.)
Judgement
2. This appeal is directed against a judgment and order dated 8-4-2004 whereby and
whereunder the High Court of Judicature at Hyderabad set aside the judgment and order
dated 24-4-1998 passed by the VII Senior Civil Judge, City Civil Court, Hyderabad in
O.S. No. 573 of 1991 and remanded the matter back to the learned trial Judge.
Devi Singh is the predecessor-in-interest of the respondent. The original dispute between
the parties centered round 1250 square yards of land purported to be situated in a market
called 'Maidan Bazaar Jamerath' situate at Karvan Aspan and bounded on the east by
canal and police station, on the west by 'Bakar Mandi, on the north by cement road,
graveyard and huts belonging to the plaintiff and on the south by land, huts and
graveyards belonging to the plaintiff. It was said to be the ancestral property of the
plaintiff and was owned by him having been purchased by his ancestors.
In the said suit, Devi Singh sought for permanent injunction restraining the appellant
herein from interfering with his peaceful possession and enjoyment over the said
property. The said property consisted of open land.
The said suit was decreed on or about 9-4-1960. An appeal was preferred thereagainst by
the appellant, which by a judgment and order dated 16-2-1967 was allowed by the High
Court of Andhra Pradesh.
3
. Devi Singh preferred an appeal before this Court. The fact of the matter has been
discussed in details by this Court in a judgment reported in Devi Singh v. Municipal
Corporation, Hyderabad [(1973) 4 SCC 66]. AIR 1972 SC 2510
From a perusal of the said judgment, it appears, that a purported claim was made by Dhan
Singh over 2750 square yards bearing Survey Nos. 5943 and 5944 situated at Karwan
Aspan on the premise that he had filed an application before the competent authority in
the year 1921 stating that the same had fallen into the prohibited area. Indisputably, the
property involved in the said suit had been acquired and compensation had been awarded
to Dhan Singh for 1250 square yards and not for the entire plot of the area which is said
to be 2750 square yards. This Court found that the plot for which compensation had been
paid to Dhan Singh for an area of 1250 square yards was far removed from the Bazaar
and there were several other plots which intervened. It was furthermore noticed that it
was somewhat difficult on the present state of the record to reconcile the case of the
defendant Corporation that the entire area covered by the sale deed had been acquired for
which compensation had been paid to Dhan Singh with the relative situation of the
Bazaar and the plot measuring 1250 square yards. It was held :
@page-SC2580
15. It is difficult to ignore the entire proceedings before the Sarfe-Khas and the
documentary evidence according to which possession was given of the land or the
property including the Bazaar by the Sarfe-Khas to the plaintiff after a full investigation
of his claim in the matter. There was no allegation that all those proceedings were without
jurisdiction or were collusive although it has now been suggested before us on behalf of
the defendant Corporation that the Sarfe-Khas Department had ceased to exist in
February 1949 by virtue of the Sarfe-Khas Merger Regulation 1358 Fasli. There is no
indication in the orders of the various authorities including that of the Minister that the
Sarfe-Khas had ceased to have any jurisdiction about deciding whether the property over
which the Sarfe-Khas laid claim was the property of a private individual or was part of
the personal estate of the erstwhile Nizam of Hyderabad.
16. It has been maintained before us on behalf of the plaintiff that the orders made by the
Sarfe-Khas were admissible and relevant under Section 13 of the Evidence Act. These
points were not gone into by the courts below and have still not been decided and we do
not wish to express any opinion on them. The agreements to which reference has
previously been made by us and which were not produced by the Corporation before the
trial court would have also thrown a good deal of light on the points in controversy. In
our judgment this is a fit case in which a remand is necessary to the trial court. The trial
court shall decide the matter afresh only on issues relating to title and possession of the
parties with the exception of such legal points which have already been disposed of by us.
Both the parties will be at liberty to ask for such amendments in the pleadings may be
strictly necessary for clarification on the question of title and possession. But no such
pleas will be allowed to be introduced which may change the nature of the case. Fresh
evidence can also be adduced confined only to these two matters by both sides. It will be
for the trial court to get a complete investigation made with regard to the various matters
already mentioned by us by a Commissioner if any of the parties make an application in
that behalf. Both sides have expressed willingness to produce before the trial court all
such documents which are relevant and which are in existence to enable the court to
dispose of the question of title and possession of both the parties in a satisfactory manner.
4. Devi Singh died. Thereafter, his heirs and legal representatives were brought on record.
Admittedly, no amendment had been sought for pursuant to or in furtherance of the
observations made by the Court. Parties, however, adduced additional oral and
documentary evidence.
5. The suit was again decreed in favour of the respondents. Thereagainst, an appeal was
preferred which was marked as C.C.C.A. No. 112 of 1975. By reason of a judgment and
order dated 20-7-1979, the said appeal was allowed. No further appeal was preferred
thereagainst. It, therefore, attained finality between the parties.
6. Respondents herein, however, on or about 3-6-1991 filed O.S. No. 573 of 1991 for title
and possession of the property, the description whereof is as under :
"SCHEDULE OF PROPERTY
All that the property admeasuring sq. yards situated at Jumerath Bazar, Hyderabad and is
bounded by
North : Plaintiffs property and Main Road (cement);
South : Remaining property of the plaintiff;
East : Nalla and Plaintiff's property;
West : Remaining property of plaintiff.
7. A decree was prayed for grant of a permanent injunction and a direction upon the
respondent-Corporation to render accounts for the amounts realized by wrongful auction.
Admittedly, an interlocutory application was filed therein for adducing secondary
evidence of documents purported to have been marked in the said O.S. No. 7 of 1959.
The said application was dismissed. By a judgment and order dated 24-4-1998, the said
suit was dismissed. An appeal was preferred thereagainst which by reason of the
impugned order dated 8-4-2004 has been allowed and as noticed hereinbefore, remitted to
the trial court.
8. Mr. L. N. Rao, learned Senior Counsel appearing on behalf of the appellant would
submit that keeping in view the earlier round of litigation the findings of the fact arrived
therein must be held to have attained finality and thus the High Court has committed a
grave error in setting aside the judgment
@page-SC2581
of the learned trial Judge and remanding the matter back to it. It was urged that in the
earlier round of the litigation not only the question of title but also possession having
been gone into in respect of the self-same property, the impugned judgment should not
have been passed.
9. Mr. M.N. Rao, learned Senior Counsel appearing on behalf of the respondent, on the
other hand, would contend that having regard to the provisions contained in Order XLI,
Rule 23 of the Code of Civil Procedure as amended by the State of Andhra Pradesh as
also in view of the fact that the properties are different, the second suit was maintainable.
It was urged that as some vital documents had been missing, a prayer was made for
adduction of secondary evidence in respect of the documents which had been relied upon
by the appellant-Corporation in the earlier suit itself.
It was pointed out that by an interim order dated 27-8-1998, the appellant-Corporation
has been receiving a sum of Rs. 5,000/- per week from the respondent and thus this Court
may not exercise its jurisdiction under Article 136 of the Constitution of India.
Order XLI, Rule 23 of the Code reads thus :
"Remand of case by Appellate Court. - Where the Court from whose decree an appeal is
preferred has disposed of the suit upon a preliminary point and the decree is reversed in
appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may
further direct what issue or issues shall be tried in the case so remanded, and shall send a
copy of its judgment and order to the Court from whose decree the appeal is preferred,
with directions to re-admit the suit under its original number in the register of civil suits,
and proceed to determine the suit; and the evidence (if any) recorded during the original
trial shall, subject all just exceptions, be evidence during the trial after remand."
The amendment which is applicable for the State of Andhra Pradesh is same as that of the
State of Madras, which reads as under :
"(a) After the words "the decree is reversed in appeal", insert the words "or where the
Appellate Court in reversing or setting aside the decree under appeal considers it
necessary in the interest of justice to remand the case"; and
(b) delete the words "if it thinks fit", occurring after the words "the Appellant Court
may"."
10. Order XLI, Rule 23 would be applicable when a decree has been passed on a
preliminary issue. The appellate court must disagree with the findings of the trial court on
the said issue. Only when a decree is to be reversed in appeal, the appellate court
considers it necessary, remand the case in the interest of justice. It provides for an
enabling provision. It confers a discretionary jurisdiction on the appellate court.
11. It is now well settled that before invoking the said provision, the conditions precedent
laid down therein must be satisfied. It is further well settled that the court should loathe to
exercise its power in terms of Order XLI, Rule 23 of the Code of Civil Procedure and an
order of remand should not be passed routinely. It is not to be exercised by the appellate
court only because it finds it difficult to deal with the entire matter. If it does not agree
with the decision of the trial court, it has to come with a proper finding of its own. The
appellate court cannot shirk its duties.
12. The issues which were framed by the trial court are as under :
"1. Whether plaintiff has got title to the suit property?
2. Whether plaintiff is entitled to recover possession of the property shown in green
colour of the plaint rough sketch?
3. Whether the defendant is liable to render accounts?
4. Whether plaintiff is entitled for injunction in respect of the vacant site of 2790 square
yards?
5. Whether the suit is not maintainable?
6. To what relief?"
13. The High Court noticed the contentions of the respondent that the trial court ought not
to have rejected the interlocutory application for adduction of secondary evidence. It was
contended that a second suit was filed only because despite liberty granted by the
Supreme Court, the plaint was not amended. Even therefore, the scope of amendment was
limited. No new case was to be made out.
14. The High Court framed the following question for its consideration, namely, as
@page-SC2582
to whether it is just and proper to look into the merits of the case in the absence of
secondary evidence sought to be adduced by the plaintiff. While upholding the
contentions of the appellant that it was not open to the respondent to file a present suit
and even if the documents are taken into consideration the same would not create any
difference of opinion before the trial court, having regard to the binding nature of the
judgment of the High Court, it was held :
"I am of the opinion that though there is a force in the contention of the learned counsel
for the defendant, but the fact remains that the trial Court also relied on some of the
earlier documents mentioned in CCCA No. 112 of 1978 without receiving them into
evidence."
It was furthermore opined :
"It is not just and proper to deal with the merits of the case as it may act adversely to the
interest of her respective parties. I am of the view that the present suit was filed for
declaration of the title in respect of the Item No. 1 of the plaint schedule of properties and
for recovery of the possession of mesne profits. It is stated that item No. 1 of the suit land
was covered by the Jumerath Bazar and Devi Singh has lost the title in respect of 1250
square yards as held in the earlier litigation filed for injunction. The title of the Devi
Singh in respect of the other property was not at all decided in the earlier suit and it is the
case of the plaintiff that unless Exs.B-1 to B-80 and Exs. X-1 to X-47 documents which
are printed book filed before the Supreme Court are received as secondary evidence, it
will amount to deprive the valuable right of the plaintiff to lead secondary evidence to
substantiate his contention in the plaint. The trial court having rejected the request of the
plaintiff to lead secondary evidence, held that barring exhibits filed in the suit, the
plaintiff did not file any documentary evidence either with regard to his possession or
with regard to any part of the suit schedule property or about his possession in 1940 or
delivery of possession by the M.C.11 as contended by him and the judgment in CCCA
No. 112 of 1975 has become final. The Trial Court further held that the plaintiff has not
filed a scrap of paper to establish his possession in respect of item 'A' of schedule
property of 2790 square yards." It was furthermore opined :
"The documents sought to be filed cannot be marked by this Court in view of the
disputed facts and the said documents have to be marked by way of adducing secondary
evidence, which will subject to the objections and cross-examination by the defendant.
Therefore, I am of the opinion that it is a case to remand to trial Court. It is just and
proper for the trial Court to consider the request of the plaintiff to receive the secondary
evidence in accordance with law. Therefore, it is just and proper to mark the documents,
relied on by both the parties in the earlier suit and consider the same which were already
considered by this Court in CCCA No. 112 of 1975. If authenticity of any of the
documents in the book prepared by the Supreme Court is doubted, it is always open for
the defendant to take an objection and also confront the said document to the witness of
the plaintiff.
I am of the view that an opportunity should have been given to the plaintiff and the
plaintiff cannot be thrown out from giving an opportunity in the peculiar facts and
circumstances of the case to lead secondary evidence and therefore, without going into all
other questions and without expressing any view on the merits of the case, I am of the
view that it is just and proper to remand the matter to permit the plaintiff and also the
defendant to lead secondary evidence in respect of the documents sought to be filed by
them."
With respect, the approach of the High Court was not correct. It for all intent and purport
failed to perform its duties.
15. In the earlier round of the litigations, the Division Bench of the High Court arrived at
its own conclusion. One of the questions which fell for consideration of the Division
Bench was as to whether as regards the identity of the land acquired by the City
Improvement Board and to determine whether Dhan Singh had been paid compensation
for whatever land he had been possessing, it was held :
"Ex.D-5 passed by the Compensation Court in the year 1915, Dhan Singh did not make
any other claim for compensation. This will probabilise that if really he was owning any
greater extent of property, he would have claimed compensation such large extent of
property as well. The absence of such a claim is a strong probability that he was not
owning any land in excess of 125
@page-SC2583
(sic for 1250) sq. yards, for which compensation was provided and paid to him. Dhan
Singh made a claim for some plot bearing No. 5945/D adjacent to the slaughter house
under Ex.D-10. He would appear to have also filed a plan along with the petition but the
identity of that plenary is left obscure. There is no evidence in identification as to how the
claim made under Ex.D-10 was but however claimed that Dhan Singh made an admission
even then that the plot bearing No. 5945/D was also within the prohibited areas."
16. The standard of proof applicable in a civil suit is the preponderance of probability.
The question had been determined having regard to the Fact that the predecessor-in-
interest of the respondent confined its case only to 1280 square yards of land. The effect
of the judgment of the earlier suit has been taken note of. The High Court furthermore
noticed the contention that Dhan Singh should have been paid compensation for the
entire 2750 square yards of land, but the fact remains that they had never claimed any
compensation for any land beyond 1250 square yards and in the said factual backdrop, it
was held :
"We have carefully analysed the evidence regarding possession which consists of both
documentary and oral evidence. These documents relate to the period 1928 to 1954.
Ex.D/7 of the year 1928 gives indication that the Sarfekhas was collecting some rents on
the Jumerath Bazar area and the City Improvement Board was requesting the Sarfekhas
Authorities to hand over all such rents collected by them, and they have also informed the
Sarfekhas that the property belonged to the City Improvement Board. In the year 1929,
some merchants in hides and skins would appear to have been using portion of the land
on the bank of the river Musi for conducting their trade."
Upon considering the entire documentary evidence, it was held :
"The Sarfekhas was evidently proceeding on the basis that the suit property was part of
Kivan Jung and the City Improvement Board was claiming that all rents realized from
Jumerath Bazar should be credited to the accounts of the Board. It is no doubt true that in
Ex.X-1 reference is made that the Chowda Bazarath was handed over to the Municipality
in the year 1946, but it looks to us that the suit property would not have been a part of
this Chowda Bazar for two reasons. The first reason is that it was specifically mentioned
as a separate item when the contract was given to Fateh Mohammad and no reference
was made at all to Jumerath Bazar in the contracts given either to Shaik Dawood or Shaik
Yakub Saheb. Secondly Ex.X/1 include the suit property as a separate item under the list
of gardens and lands. In the oral evidence, it is no doubt elicited, that this Jumerath Bazar
is included as one of the Chowda Bazarath and that these markets was handed over to the
Municipality in the year 1946 under the agreement executed between the Sarfekhas and
the Corporation. It is argued for the respondents that an adverse reference should be
drawn against the Corporation for not producing the agreement. It is also contended that
the circumstances would negative the title put forward on behalf of the Corporation. We
find no substance in either of these Contentions. In Ex. X-1, itself a remark was made
that notwithstanding the execution of agreement between the Corporation and the
Sarfekhas Authorities, the Corporation has not been paying any amount ever since the
amount came into existence. That would indicate that the agreement was not acted upon
by the Corporation so far as at least the suit property is concerned. In the nature of things
when the title of the property belonged to the Corporation after it was handed over to its
management by the City Improvement Board, the suit property would not have been
mentioned in the agreement referred to by the plaintiffs. The oral evidence discloses that
the original agreement is with the Sarfekhas Authorities to produce the records. The
original agreement is with the Sarfekhas. It was the plaintiff that summoned the
Sarfekhas Authorities to produce the records. The original agreement available with the
Sarfekhas has not been produced. No adverse inference can, therefore, be drawn against
the Municipality that it has no title to the property or that it recognized the title of
Sarfekhas to the property. We have earlier stated that the plaintiff did not claim title to the
property through the Sarfekhas and that even the Sarfekhas Authorities, who claimed title
to the property as forming part of the Kivan Jung, have given up their claim by about the
year 1949."
The Division Bench furthermore took into consideration the fact that the acquisition
@page-SC2584
took place long time back and thus some papers might have been lost or removed and the
absence thereof in the file could not throw any suspicion on the authenticity of the
vesting which took place during those years. The Division Bench concluded its judgment,
stating :
"We have earlier given reasons that it was the Corporation that was in possession of the
property and not Devi Singh who was making efforts to come into possession of the
property by making false assertion that he was the owner of the property and that his
property was extending upto the police station challenging the east. The circumstances
remains to that though he filed the original sale deed Ex.P. 12, he has not produced the
plan attached thereto in this suit. We are not satisfied that the said plan continued to
remain in possession of the Serfekhas Authorities before whom he would appear to have
produced it. When he is having the custody of Ex.P. 12 original, the normal presumption
is that he would also be having custody of the plan which formed part of Ex.P. 12. The
suit for injunction was filed by Devi Singh shortly after the proceedings under Section
107, Cr.P.C. initiated against him ended in his favour and it is common ground that ever
since he filed the suit, interim injunction issued in his favour has been in force. Any act of
possession after the issue of the said interim injunction will not assist Devi Singh's claim
to have been in possession of the property on the date of the suit in any manner.
The plaintiffs have not therefore established their title to the property. They have not also
proved their possession in the suit property on the date of the suit. The order passed by
the Sarfekhas Authorities are invalid and do not bind the Corporation in any manner. It is
true that the Corporation has proved effectively possession of the property only from the
year 1946 but they have established their title to the property. The plaintiffs who have no
title to the property cannot get any injunction against the Corporation who is the real
owner of the property even if it were to be assumed that the plaintiffs were in possession
of the property on the date of the suit. The acts of possession indulged in by the plaintiffs
are fugitive in character and do not establish their possession in any manner."
17. The learned trial Judge in its judgment and order dated 24-4-1998 in O.S. No. 573 of
1991 referred to in extenso the earlier judgment of the High Court to arrive at the
following finding :
"After discussing the various aspects it was held that in 1915 Dhan Singh did not make
other claim except in respect of 1250 sq. yds. relating to the lands bearing Nos. 5943 and
5944 in respect of compensation. This will probabilise that if really he was owning any
greater extent of property, he could have claimed compensation for the larger extent of
property as well. The absence of such a claim is a strong probability that he was not
owning any lands in excess of 1250 sq. yds. for which compensation was provided and
paid to him. Though Dhan Singh made a claim for some plot bearing No. 5945/D
adjacent to the slaughter house; he made an admission that the said plot was also within
the prohibited area. It was further held that the fact remains even if Dhan Singh had any
title to the plot bearing No. 5945/D it became extent (sic) when it was acquired by City
Improvement Board in about the year 1920. Dhan Singh made claim stating that the
extent involved in his property Nos. 5943 and 5944 was 2750 sq. yds. and not 1250
sq.yds. and that the compensation court was not correct in deducting the amounts towards
nuzul."
It furthermore held that the property covered by Exh. A-8 was only 1250 square yards
and nothing more and the claim of the plaintiffs in the said suits with regard to 5410
square yards appeared to be highly improbable. It was furthermore stated :
"If Dhan Singh who was claiming under Ex.A8 previously only 2750 sq.yds. in property
Nos. 5943 and 5944 as against 1250 sq.yds. fixed by the compensation court and when
the claim of 2750 sq. yards was disallowed confining his right to 1250 sq. yds. was
acquired by City Improvement Board and compensation was paid to Devi Singh, the
father of the plaintiffs is not in dispute."
The learned trial court furthermore considered the evidence of the plaintiff who examined
himself as PW-2 stating :
"According to him suit property is 5410 sq. yds. out of which the black colour area
admeasures 2790 sq. yards which is in his possession and the green colour portion was
forcibly occupied by the Municipality. The red colour portion also belongs to him. He
admitted about previous litigation and the
@page-SC2585
decree passed in O. S. 7/59 and the same being set aside under Ex.B-1 by the High Court.
According to him Nizam Government took away his property from his ancestrals
somewhere in 1940's subsequently the property was released. It is pertinent to mention
that he did not file any documents."
18. Noticing that neither the original plaintiff nor the respondents who were substituted in
place of Devi Singh had not amended the plaint in the previous suit, it was held that the
evidence on either side is very meagre in the said suit. The said suit was held to be barred
under Order II, Rule 2 stating that the plaintiff ought to have prayed for the declaration in
the previous suit itself.
19. A distinction must be borne in mind between diverse powers of the appellate court to
pass an order of remand. The scope of remand in terms of Order XLI, Rule 23 is
extremely limited. The suit was not decided on a preliminary issue. Order XLI, Rule 23
was therefore not available. On what basis, the secondary evidence was allowed to be led
is not clear. The High Court did not set aside the orders refusing to adduce secondary
evidence.
20. Order XLI, Rule 23A of the Code of Civil Procedure is also not attracted. The High
Court had not arrived at a finding that a re-trial was necessary. The High Court again has
not arrived at a finding that the decree is liable to be reversed. No case has been made out
for invoking the jurisdiction of the Court under Order XLI, Rule 23 of the Code.
An order of remand cannot be passed on ipse dixit of the court. The provisions of Order
II, Rule 2 of the Code of Civil Procedure as also Section 11 thereof could be invoked,
provided of course the conditions precedent therefor were satisfied. We may not have to
deal with the legal position obtaining in this behalf as the question has recently been dealt
with by this Court in Dadu Dayalu Mahasabha, Jaipur (Trust) v. Mahant Ram Niwas and
Anr. (Civil Appeal No. 3495 of 2008) disposed of on 12-5-2008. Reported in 2008 AIR
SCW 3324
21. We are, therefore, of the opinion that the impugned judgment cannot be sustained. It
is set aside accordingly and the matter is remanded back to the High Court for
consideration of the appeal on merits. The appeal is allowed with the aforesaid directions.
In the facts and circumstances of the case, however, there shall be no order as to costs.
Appeal allowed.

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AIR 1952 SC 181 : 1952 Cri LJ 955 (Ref.) 29, 39

30. The order passed by the Government read as under :

. The Court stated : AIR 1952 SC 317, Para 11

54. Referring to several earlier decisions, this Court stated;

1 (2003) 2 SCC 111

2 AIR 1999 SC 1912

. Interpretation of Section 29 vis-a-vis Section 31 of the State Financial Corporations Act,

. Contextually we cannot bypass the decision of a three-Judge Bench of this Court in

32. Appeal is dismissed.

. If the essential educational qualification for recruitment to a post is not satisfied,

. Some arguments have also been advanced before us in regard to applicability of

Section 299 Section 300

2007 AIR SCW 3734 : AIR 2007 SC 1971 (Ref.) 12

Cases Referred : Chronological Paras

Ravi Bakshi, Yash Pal Dhingra, for Appellant.

"Although it is desirable to hold identification parade at the earliest opportunity, where

17. We may notice the salient features of the prosecution case.

By saying so, allowed the appeal filed by Cipla Ltd.

"Public orders, publicly made, in exercise of a statutory authority cannot be construed in

(Chapter 107/108 Shloka 14)

Manoj Prasad, for Appellant.

In Jahuri Sah (supra), this Court opined : AIR 1967 SC 109

AIR 1973 SC 303 : 1973 Lab IC 191 (Rel. on, Pnt. B) 14

10. We are of the view that the Division

"267. Effect of an irregular (fasid) marriage-

. On consideration of the decisions of the various High Courts referred to hereinabove

AIR 1991 SC 1346 : 1991 Cri LJ 1521 (Ref.) 17

* *** *** *** ***

".............The development of the doctrine of sustainable development indeed is a

"82. We direct as under :

"Entitlement of additional amount provided under Section 23(1-A) depends upon

10. The appeals are allowed but with no order as to costs.

V. Krishnamurthy, Sr. Advocate, Senthil Jagadeesan, for Appellants.

Longer Limitation French Law = 30 years

(B) Criminal P.C. (2 of 1974), S.482 - INHERENT POWERS - SANCTION FOR

1992 AIR SCW 237, Foll. (Para 20)

20. The Court stated;

One cause of action, cannot be allowed to be substituted by another. Ordinarily, effect of

* S.A. No. 1043 of 1999, D/- 25-1-2001 (All).

8. Right to reason is an indispensable part of a sound judicial system; reasons at least

AIR 1981 SC 2075 (Disting) 11

All the sentences were, however, ordered to run concurrently.

Cases Referred : Chronological Paras

14. Article 137 of the Limitation Act reads as follows :

A Kanade, Aribam Gunseshwar Sharma, for Appellant; Chinmoy Khaladkar, Ravindra

Range of Pay Category of Ward/Class of accommodations to which entitled

1. Whether the candidate is accused of any offence(s) punishable with imprisonment. If

"46(6). On cumulative reading of a plethora of decisions of this Court as referred to, it is

. In P. Ramachandra Rao's case (supra), the question considered by the seven-Judge

. However, as pointed out by the seven-Judge Bench decision of this Court in P.

* * * * *