Air (1702 2109)

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.
17. There will be no order as to costs.
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 :
2004 AIR SCW 7409, Para 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
@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
Dr. ARIJIT PASAYAT, J. :- Leave granted.
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
interference. (Para 28)
(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.
* Cri. Appeal No. 699 of 2003, D/- 18-7-2005 (AP).
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)*
Coram : 3 Dr. A. PASAYAT, P. SATHASIVAM AND AFTAB ALAM, JJ.
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.
3. Heard learned counsel for the parties and perused the record.
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
2002 AIR SCW 3257 : AIR 2002 SC 2864 (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"
(From : Punjab and Haryana)
Criminal Appeal No. 555 of 2008 (arising out of SLP (Cri.) No.4579 of 2006), D/- 26 -3
-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"
(From : 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
held : 2004 AIR SCW 4742
"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."
(Emphasis supplied).
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
of the Constitution.
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"
(From : Uttaranchal)
-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
2004 AIR SCW 7500 : AIR 2005 SC 1514 (Rel. on) 14, 15
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
1998 AIR SCW 729 : AIR 1998 SC 966 : 1998 Lab IC 984 : 1998 All LJ 504 (Ref.)
7
1993 AIR SCW 494 : AIR 1994 SC 980 (Ref.) 12
@page-SC2046
1991 AIR SCW 2869 : AIR 1992 SC 165 : 1992 All LJ 185 (Ref.) 2
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)*
Criminal Appeal No.255 of 2006, D/- 29 -4 -2008.
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.
Appeal partly allowed.
@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))
Civil Appeal Nos. 5312-5318 of 2001, D/- 31 -3 -2008.
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
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. 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.
1994 AIR SCW 844, Rel. on. (Para 8)
(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.

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